The Alberta Response to the Partial Unconstitutionality of the British Columbia Impaired Driving Regime

Yesterday, in Sivia v. British Columbia (Superintendent of Motor Vehicles), the British Columbia Supreme Court Justice Sigurdson struck down portions of the amendments to the B.C. Motor Vehicle Act. The amendments in question related to the "automatic roadside prohibition" or ARP, imposed when a B.C. driver was stopped by police under the suspicion of drinking and driving.

The legislation permitted ARP based on the "warn" or "fail" of a roadside testing device. A "warn," equivalent to a BAC (blood alcohol concentration) of between .05 and .08, would result in immediate suspension of the driver's licence, impoundment of the motor vehicle, and a fine. A "fail" would attract similar sanctions but also the criminal law regime under s.254 of the Criminal Code. 

Appeals of the ARP went to an administrative tribunal, under the auspices of the Ministry of Transportation. According to the legislation, the appeal process was limited to considering whether or not the appellant was the driver and whether or not he/she received a "warn" or "fail" on the roadside device. There was no ability to argue against the suspension outside of those very limited factual parameters.

Justice Sigurdson concluded that the legislation was not contrary to s.11(d), the presumption of innocence protection in the Charter, nor was it contrary to s.(10)b, right to counsel. Similarly, s. 7, right to liberty, arguments were dismissed in a very summarily fashion. However, Justice Sigurdson did find the ARP, as it related to roadside device "fails," to be an unreasonable search and seizure under s.8 of the Charter as the scheme authorizes a warrantless search without procedural legal safeguards, most notably, the lack of a meaningful appeal process at the administrative level. Justice Sigurdson acknowledged that the ARP was civil in nature and not criminal but even so required some level of due process when determining if an ARP was appropriate under the regime.

How does this case impact Alberta's proposed amendments to the Traffic Safety Act?  If you read the media articles, certainly the Alberta government is touting this decision as the "mother of all decisions," which effectively gives the Alberta regime the "seal of approval." Why the boast? Simply put, the Alberta amendments differ in the administrative appeal process and does have those safeguards which created the Charter difficulties in British Columbia. Do you think maybe the Alberta government was aware of this case before they created their amendments? 

Certainly, if the same arguments as in Sivia were brought in Alberta, there would, most likely, be no finding of unconstitutionality. However, that does not mean there are no arguments to be made. I refer to my previous posts on the issue, which suggest other arguments, not argued in Sivia, and which can be found here.

Indeed, Sivia may provide further support for some of the issues raised in previous posts. Although Justice Sigurdson found the ARP regime was regulatory and not criminal in prospect, such differences do not foreclose Charter scrutiny and possible unconstitutionality.

Further, as discussed in the Administrative Tribunals and Duties of Fairness posting, the transportation tribunals hearing the ARP appeals will be under the "fairness" microscope and will need to give each appeal full and fair consideration or be subject to judicial review. Such considerations would include whether or not the licence was suspended contrary to the Charter and/or Charter values, even though the tribunal itself has no true remedial powers under the Charter. This is a heavy burden indeed. Particularly as the members of the tribunal do not necessarily have any legal training. 

In the end, the Alberta government's response appears to be slightly premature and overly confident. What is clear is this: the B.C. case will not end the legal concerns with this legislation.

Impaired Driving: A Little Diversion

Yesterday, I blogged about the importance of education as the ultimate deterrence of impaired drivers. Today, as foreshadowed by yesterday's editorial cartoon in the Calgary Herald, I will comment on Premier Redford's interest in changing the Alberta Traffic Safety Act to impose tougher consequences on impaired drivers.

These changes are to reflect the recent amendments of Part 4 of the British Columbia Motor Vehicle Act, which imposes, at the roadside, automatic driving prohibitions from 24 hours up to 90 days, depending on your BAC (blood alcohol concentration) as shown on an approved roadside screening device. But the repercussions do not stop there: the car may be impounded at the roadside, if the police officer feels it is "necessary" to prevent the offender from driving. Of course, why it would be deemed necessary, considering the police officer just took the offender's licence, is a different matter. Additionally, a monetary penalty will be assessed at the roadside and must be paid within thirty days.

In other words, a lot of quasi-judicial punishment is being meted out at the roadside on the basis of a police officer's opinion. The repercussions are even tougher should the driver receive a warn on the roadside screening device and even tougher still should the driver fail. All done at the roadside, without judicial intervention, without due process, and all mandated by provincial legislation. 

So what if it lacks due process, as long as it works and deters people from drinking and driving? Well, let's look at the actual affect this kind of legislation has on impaired driving. According to BC Premier Clark, the new legislation cut in half deaths caused by impaired drivers. Indeed, the legislation was first introduced by the BC Solicitor-General in April of 2010 on the basis that tougher measures were needed to combat the increasing numbers of impaired drivers. Although, I was unable to find any statistics or reports supporting Clark's bravado, I did find recent statistics debunking the Solicitor-General's comments. In the crime statistics released by Statistics Canada on July 21, 2011, the rate of impaired driving in Canada dropped 6% in 2010, consistent with a general decline of the offence since 1981. Furthermore, the rate decreased, from 2009 to 2010, by 8% in British Columbia and by a whopping 14% in Alberta.

The reality may be that tougher sanctions will not deter people and certainly will not stop innocent teenagers from dying in horrific circumstances. Instead, other ways, which have a proven track record at reducing the offence, such as the use of the ignition interlock program, should be considered. Additionally, enhanced funding and expansion of educational programs targeting the youthful driver should be employed.

Education does work to change attitudes. In the end, roadside justice is a mere diversion from the real issue and the real problem.