The Sixty Day Review: Occupy Canada and Impaired Driving Alberta

Slightly more than sixty blog days have passed and it is time to review. I have chosen two of my most popular posting areas to review: the Occupy movement and the new Alberta impaired driving laws. 

As discussed previously, although the courts have recognized violations of freedom of expression resulting from the City's bylaws prohibiting the erecting of shelters in public spaces, these laws have been saved under s.1 of the Charter. This means the legislated restrictions on freedom of expression is justifiable in a free and democratic society. These decisions from across Canada have resulted in the removal of the various "Tent Cities," which were the outward manifestation of the movement's "occupy" philosophy. 

The media coverage of the court cases to remove the protesters seemed to overshadow the true nature and meaning of the protest. I recently read an excellent blog posting by the Dean of Osgoode Hall Law School, Lorne Sussin, who reminds us of the important "teachable moments" presented by the protest. In particular, Dean Sussin speaks of poverty and the inequalities arising from it, as the true issue to be resolved. 

This reminder lead me back to the letters written by the CCLA (Canadian Civil Liberties Association) to the various Canadian Mayors to remind the municipalities of their obligation to respect the protestors' human rights through "constitutionally-required tolerance towards peaceful, democratic activities."

As discussed in my previous posting, these reminders from the Dean and the CCLA provides the lessons we can learn from Charter values.

The second area of review is the contentious amendments to the Alberta Traffic Safety Act, which was passed late Tuesday, December 6 by the Tory dominated Alberta Legislature. After the Bill was passed, Premier Redford "softened the blow" by announcing the incremental implementation of the law.

The first phase, to begin in January 2012, will see the extraordinary penalties assessed against those whose BAC is over 80 and face criminal code charges as well. The second phase, involving increased penalties for those driving with BAC between 50 and 80, has no implementation date stamp as yet. According to Premier Redford, this second phase will be "accompanied by lengthy public education."

Already, there has been charts, graphs, and other such various multimedia presentations on what the new legislation "means." The difficulty is that these explanations are merely a general guideline and should not be used as a definitive guide to drinking and driving in Alberta. The calculations are estimates at best which rely on certain assumptions, which may or may not be the same for every person. As a result, the education may lead to more confusion.

In British Columbia, the harsh impaired driving laws, on which Alberta fashioned their new law, received a legal set back as discussed in my previous blog here. The BC government has still not announced their response, other than to recognize the need to change their legislation in order to make it constitutionally worthy. The growing issue is the response to all of the affected drivers, who were penalized under the old regime, and whether they will receive some recourse from the government.

The Alberta saw a real time example of impaired driving when Conservative MP Peter Goldring was stopped, after his constituency Christmas party, for drinking and driving. Goldring is now sitting outside of his caucus as a result of the charges: refuse to provide a breath sample contrary to the Criminal Code.

The only truly accurate educative message is: do not drink alcohol and drive. To that end, December, according to the Alberta Traffic Safety Plan Calendar, is Impaired Driving Awareness Month. As said in previous blogs, awareness education may be the best message to stop the dire consequences of drinking and driving. 

In the past sixty days we have discussed many interesting and important connections between ideas and the law. I invite you to read or even re-read these blogs, by visiting the "home" page, to make your own connections.

The Alberta Drinking And Driving Law Blogs

Read all the blogs on the proposed Alberta amendments to the Traffic Safety Act and the new administrative driver's suspension program for driver's stopped for drinking and driving:

Administrative Tribunals and Duties of Fairness

The Charter and The New Alberta Impaired Driving Laws: Going Beyond "Driving Is A Privilege"

The Social Costs of Alberta's New Impaired Driving Regime

Proofiness: A Companion Blog

The Optics Of Tougher Impaired Driving Laws

Impaired Driving: A Little Diversion

A Lesson On How To Get Tough On Impaired Driving

The Social Costs of Alberta's New Impaired Driving Regime

Premier Redford, as promised, tabled Bill 26 the Traffic Safety Amendment Act, 2011 as the legislative response to government concerns with impaired driving in the Province. The Bill has already passed first and second readings in the legislature. No doubt, with the truncated legislative proceedings, the Bill will be passed into law before the end of the year. I have already, in previous blogs, discussed some issues with this new legislation and the concerns over the foundational reasons for the new amendments, particularly the statistical evidence used to support the new measures. Previous blogs have also mentioned the lack of due process and criminal law protections connected with the new law as it diverts offenders from the justice system in favour of an administratively expedient process controlled by the police and by the transportation ministry.

Another concern, is the immediate and mandatory suspension automatically imposed on the offender who is charged with an impaired/over 80 criminal code offence. Those individuals, by virtue of being charged criminally, are thereafter disqualified from driving a motor vehicle until their criminal case has been disposed in the criminal courts. This administrative driver's licence suspension therefore can continue for an undefined period and is dependent upon the timeliness of the matter being heard in the criminal courts. 

This is a concerning element as it places an unquantifiable burden upon the allocation of public resources in the criminal justice system. Not unlike the Askov case on Charter trial delay, the impact of this suspension, which is wholly dependent on the ability of the court system to hear impaired cases quickly, can potentially generate an impossible burden on the court system. Charter delay cases will once again rule the courts and be the ultimate adjudicator on who will be prosecuted and who will not. Stay applications will be the norm.

Quite possibly, due to the punitive dimensions of such an automatic disqualification, impaired driving trials will need to be heard within 30 days, thereby re-prioritizing cases in the system. The priorities will not be based on the seriousness of the issue but will be controlled by provincial administrative suspensions.

Whether or not this is an appropriate allocation of public resources will add an interesting twist to this new legislation. Whether or not the public will cheer this prioritizing of such cases over more serious cases, such as violent crimes, will be seen. It is clear however that this new amendment will have heavy social costs for all Albertan citizens.

Tomorrow, I will take a deeper look at the legal issues arising out of this proposal.