In April of 2018 new provincial impaired driving laws came in to effect in Alberta. But the story of how we got to this point started much earlier. In our first blog post in this series on impaired driving law in Alberta, we review the legal context of impaired driving laws, the history of administrative licence suspensions, and the Sahaluk court cases.
The Legal Context
In Canada, the 1867 Constitution loosely sets out which level of government is responsible for what. For example, it says that the Federal Government has the power to make laws about bankruptcy and insolvency. It seems clear cut at first – the Federal Government has the power to make laws about some things and the Provincial Governments have the power to make laws about other things. However, the reality is much more complicated. Often, there are areas of overlap where both the Federal and Provincial Government can pass laws on a given subject.
Impaired driving is one of those overlapping areas.
The Federal Government can pass laws do to with impaired driving because it has power over the Criminal Law. In the Criminal Code, the Federal Government makes it a crime to: drive while impaired (s. 253(1)(a)), drive “over 80” (s. 253(1)(b)), and refuse to provide a sample of your breath (s. 254(5)). If someone is convicted or pleads guilty to one of these offences they face penalties that include, at minimum a fine, and potentially imprisonment. In addition to any fines or jail time, s. 259 of the Criminal Code imposes a mandatory driver’s licence suspension. For a first offence, the minimum licence suspension is one year.
The Provincial Government can pass laws that have an effect on impaired driving too, because they have power to license drivers. In the Traffic Safety Act, the Government of Alberta sets out a number of things including when and for how long the Province can suspend your driver’s licence if you are charged or convicted with an impaired driving-related offence under the Criminal Code. When someone’s licence is suspended under the Traffic Safety Act after they have been charged but before they have been convicted it is called an “administrative licence suspension”.
Pre-April 2018 Licence Suspensions
From 1999 to 2012, if a person was charged with an impaired driving-related offence as a first time offender, they would get an initial 24-hour suspension, plus a three month long Provincial administrative licence suspension that started 21 days after they were charged. If that person was later convicted of an impaired driving crime, they would be banned from driving for one year after the conviction under both the Criminal Code and the Traffic Safety Act.
From 2012 until the new law came into effect in 2018, the Traffic Safety Act made it so that after a person was charged with an impaired driving offence under the Criminal Code, their licence was immediately and mandatorily suspended. The automatic administrative licence suspension remained in place until the person’s criminal matter had been dealt with (eg until they either plead guilty, went to trial and were convicted, went to trial and were acquitted, or the Crown withdrew the charge against them). The one year ban on driving after conviction or guilty plea stayed the same.
The Sahaluk Case
In 2013, a number of people took the Province to court over the administrative licence suspensions. They argued that the Province’s law was unconstitutional because it went against their rights in the Charter of Rights and Freedoms (the “Charter”). Specifically, they argued that the law went against their s. 7 rights to “life, liberty and security of the person” and their s. 11(d) rights “to be presumed innocent until proven guilty”.
The case went on for years. Lawyers representing the parties made a number of complicated procedural and evidentiary arguments. The Courts released a number of decisions on these issues along the way.
In Sahaluk v Alberta (Transportation Safety Board), 2015 ABQB 142, the Court decided that the administrative licence suspension provisions were, in fact, constitutional. This decision was appealed.
Sahaluk v Alberta (Transportation Safety Board), 2017 ABCA 153
The Court of Appeal considered a large amount of evidence, including government policy documents, statistics, studies, increasing justice system delays and more. In the end, the Court of Appeal decided that:
- the law went against the presumption of innocence (see paragraph 81 of the decision);
- created an incentive for people to give up their constitutional right to a trial and plead guilty even where they might have had a good defence to the charge or would possibly have been acquitted at trial (see paragraph 100 of the decision); and,
- interfered with people’s liberty,
- and that this interference was “not in accordance with the principles of fundamental justice” (see paragraph 116 of the decision).
The Province was given one year to make a new law on administrative licence suspensions to replace the one that was struck down.
In our next blog post in this series, we will discuss the new law that came into effect in April 2018.
The information provided on this website does not constitute legal advice and should not be construed as such. Moustarah & Company does not guarantee that this information is accurate or up to date. As a result, should you require legal advice, please contact a lawyer.