This story originally published here.
On Thursday, in a two-to-one decision, the Alberta Court of Appeal delivered a modest victory for drunk drivers: it found Section 88.1 of the Traffic Safety Act, under which Albertans charged with impaired driving have their licences suspended until their cases are finished, violated the Charter right to fundamental justice. Specifically, Justice Frans Slatter wrote, “drivers may be induced to surrender their constitutional right to the presumption of innocence and the right to a trial … in the hopes of being granted permission to drive much earlier than if they waited to be acquitted.”
I wrote recently about how hard it is in this country to lose what’s supposed to be the “privilege” of driving, and our strange acceptance that people who do awful things behind the wheel must be allowed ever more chances to do it again. But this is a whole new twist: People are pleading guilty to drunk driving … so they can get their licences back sooner!
“A driver who has a valid argument that his or her Charter rights were breached, or that the Crown cannot prove the case, would normally plead not guilty and have a trial,” Slatter wrote — found guilty, on a first offence, he or she would receive a mandatory 12-month driving ban. “In the meantime, the immediate administrative licence suspension will last until the trial, for what was an average of 9.63 months in 2012.”
Thus a guilty-as-sin drunk driver who fessed up immediately would be off the roads for a year, while one with a solid defence who went to trial would lose his ride for something like 22 months.
It’s not the most convincing judgment I’ve ever come across. As incentives to forego a viable defence go, this doesn’t seem very compelling. Slatter concedes the evidence supporting the existence of the phenomenon is “inadequate,” but concludes it’s “probably” happening. In paragraph 49, he commits a truly remarkable act of reading incomprehension.
Nor, if appealed to and upheld by the Supreme Court, would this likely have any effect on other jurisdictions. The issue isn’t taking away a driver’s licence at the time of an impaired driving charge, which most provinces do for 90 days. The issue was the “tying” of this ostensibly “administrative” penalty under provincial jurisdiction directly to a criminal proceeding under federal jurisdiction.
So it’s not the most intuitive judgment either: Surely revoking an accused drunk driver’s licence until he’s convicted or acquitted makes more sense than giving it back to him in the middle of his trial because 90 days are up.
All that said, it’s always nice to see a government get busted down a peg. It is clear that Section 88.1 was designed, in part, as a cost-cutting measure. The 2011 Provincial Strategy to Reduce Impaired Driving, obtained by the defence via freedom of information, complains that impaired driving trials “always involve extensive Charter litigation, are vigorously argued by specialized defence counsel, always hinge on an enormous and often byzantine body of case law and are routinely appealed.” The province is thus caught between the “imperatives” of fighting impaired driving and of “reducing the institutional time and related costs” of doing so.
The right to have the Crown prove its case against you is, as Slatter says, a considerably more important “imperative” than either.
And it’s especially nice to see a government get busted down a peg on this file. Canadian jurisdictions have enjoyed all but free rein in curtailing citizens’ rights under the banner of fighting the scourge of impaired driving. With barely a peep of dissent, provinces have created the new offence of driving under the legal .08 blood-alcohol limit: in Saskatchewan .04 gets you a 24-hour licence suspension; in Ontario and British Columbia, .05 gets you 72 hours and $150 and $200, respectively. In Ottawa, the Liberals intend to empower police officers to pull over and breathalyze anyone they please, without even the pretence of reasonable suspicion.
That would be well and good if the meat of the problem were hiding in plain sight between zero and .08. It plainly is not. In 2012, 86 per cent of fatally injured drivers who tested positive for alcohol had BACs above .08; 64 per cent were at more than twice the legal limit. And while the cops are out harassing anyone they choose and chasing down the the glass-of-wine-with-dinner crowd, we keep giving the drunkest of the drunk chance after chance after chance to go out there and wreak havoc.
In 2015 the rate of police-reported impaired driving in Canada was one-third of what it was just 30 years previous. This war is obviously not won, but it has been a tremendous success. Remember that next time governments try to infringe your liberties in the name of protecting you.
This story originally published here.