New impaired driving rules free up courts at the cost of personal rights

By Sean Feagan, Local Journalism Initiative Reporter

Proposed changes to the way impaired driving is handled are being described by the province as a way to save the government time and money.

But local legal experts say the changes will result in a loss of personal rights.

The changes are contained within Bill 21, the Provincial Administrative Penalties Act, which passed first reading in the legislature on June 4 and is slated to be reviewed further later this summer. 

The proposed changes would mean first-time impaired driving offences will be handled as a provincial administrative penalty, rather than a criminal matter. That means punishments, including fines and vehicle seizures, would be given automatically, rather than as a sentence following a trial or plea bargain agreement.

This proposed system is similar to the existing Alberta Administrative License Suspension Program (AALSP). Under the AALSP, drivers found to be impaired, “reasonably believed” to be impaired, or that fail or refuse to provide breath or fluid samples, receive an automatic 90-day license suspension and a subsequent 12-month suspension where driving is permitted if the charged individual participates in the Ignition Interlock Program.

Under the proposed changes, repeat offenders, impaired drivers who cause bodily harm or death, and other more serious cases will receive criminal charges, so the changes do not represent a decriminalization of impaired driving.

The result would be that those accused must prove their innocence through administrative appeal, rather than the Crown being required to prove guilt through a trial, explained D. John Getz, a lawyer with the Strathmore-based firm, Getz Collins and Associates.

“People are going to be punished automatically, and they are going to have to apply for a review if they think it’s appropriate,” said Getz. “You’re sort of guilty until proven innocent – and the onus is on you to prove your innocence.”

Administrative appeals must be requested within a certain period, cost money and take time. 

“You don’t get an immediate hearing date and an immediate result,” said Getz. “It is often taking my clients several months to get a decision back,” for automatic license suspension appeals, he said.

“If you pass the time period for appealing it, there’s no recourse – even if you’re found not guilty in due course on the criminal charges, that suspension will continue.”

In effect, the changes give police more power, said Getz. “The bill gives the police wide discretion on what charges to lay – whether they lay criminal charges or deal with an incident with what they call administrative penalties.”

Proposed are increased consequences for impaired driving, including fines of up to $2,000, increasing the length of vehicle seizure from three days to 30 days, the creation of new mandatory education programs for repeat offenders, and new and longer periods of mandatory ignition interlock.

The changes will save lives, according to the provincial government. In British Columbia, where similar administrative penalties were imposed in 2010, there subsequently have been lower rates of impaired driving incidents (which declined by 36 per cent from 2011 to 2018) and impaired driving fatalities (which declined by 54 per cent from 2010 to 2018). 

“To be fair, they think the B.C. system means there are less fatalities on the road, but I suspect what it also means is there are more innocent people undergoing these penalties,” said Getz, who added the changes are the wrong approach to speeding up the judicial process.

“I understand the problem with our court system – it’s slow and ponderous,” he noted. “These changes are not being made to have a fairer system, it’s to have a less expensive system. What they are really addressing is the fact that we don’t have sufficient resources to handle the charges that are laid in this province.

“But rather than fixing the system and providing more court time and more prosecutors, judges and resources, we’re going to bypass that innocent-until-proven-guilty system, and we’re going to set up an administrative system that is hard for people to navigate.”

Dale Peters, a former RCMP member and ticket agent with the Chestermere-based ticket agency Save My License, agrees.

“This law that they’re putting forth is perhaps good for the government but is certainly not good for people that don’t want to give up any more of their rights,” said Peters. “It gives too much power to the policemen on the side of the road.

“You won’t get a criminal record, but nor will you get to go to court to fight the matter.”