New System Strikes the Wrong Balance

Alberta has entered into a new era of traffic enforcement. Impaired driving is now being governed by what is called Immediate Roadside Sanction (IRS) and soon all traffic tickets will be too.

For those who are not familiar with the process, it means that when an alleged contravention has occurred, police issue a person an IRS on the spot. Whether it be an immediate license suspension for impaired driving or a demerit and fine penalty for speeding, the point is that the penalty is imposed immediately. Hence the use of the word “immediate.” You are liable immediately unless you can show why the IRS should be cancelled – in a term more familiar — why you are ‘not guilty’. You have to pay an application fee to challenge the IRS.

This new process runs contrary to what Canadians have been accustomed to for probably well over a century: Neutral Judges and the presumption of innocence. 

Naturally, as a first reaction, it feels unfair, unconstitutional, and even a little totalitarian. It cuts against the grain and our natural sense of what is just.  

I have been defending driving infractions for almost 20 years and am currently involved in a significant amount of litigation under this new IRS system. 

There are some benefits to this new approach. I remember one of my first days in the Edmonton court house, wondering why so many police officers were mulling around outside court rooms. Sometimes there would be three officers attending court for one speeding ticket: The officer who thinks he saw a person speeding, the officer who then pulled the alleged speeder over, and the officer who wrote the ticket.

I called this a continuity defence. The government needed all three officers to prove one ticket. These three officers may all have been getting paid overtime if court ran outside their shift. For a $ 125.00 ticket!

In addition, three officers were in court rather than on the street preventing crime, which is inefficient. The new system removes this type of waste. 

Likewise, while first time impaired drivers who are caught under this new system will not have to face a court process (and criminal record), they will be subject to extremely severe penalties. Court time and prosecutor time are saved. I believe impaired driving litigation took up more than 50% of court resources. 

So, while this new system has some potential benefits, like reducing the strain on justice resources and giving first time offenders a break, it also has some significant flaws and has not struck the right balance. Hopefully, it will. There are at least three areas that need to be immediately addressed. 

If the government is going to hold onto the “immediacy” aspect of the sanction, that is, you are guilty or liable unless you prove otherwise, then they need to balance that approach, which arguably is harsh, with firstly, not requiring motorists to pay a fee to challenge their respective penalties; secondly, creating an adjudication system that instills confidence in the public’s perception that justice is actually being done; and thirdly, encourage adjudicators to uphold the Canadian Charter of Rights and Freedoms when police violate rights.   

Firstly, the ‘pay a fee’ to challenge your IRS is flawed. It creates a real and pressing access to justice issue. Those who can afford to pay the application fee can dispute the sanction and those who can’t … well, that’s too bad. A two-tier justice system must be avoided at all costs. 

The second issue relates to the adjudicators the government has hired to decide the validity of a person’s sanction. The adjudicators are government employees. They are not independent and impartial. If they are not biased, which is a big if, there remains a real perception of bias that must be erased.

In many administrative settings, adjudicators are appointed by government which establishes independence. 

An appointed official cannot be fired for their decision making. This is a crucial and necessary requirement if a fair system is going to be developed.

Finally, as the system currently stands, the adjudicators are not holding the police accountable for Charter violations. They claim they have no “jurisdiction” to do so and while this may technically be accurate, the higher courts have given them the power to ignore police evidence if motorists’ Charter rights have been infringed. In addition, the legislature can give them the power to do so. At present the adjudicators appear to be too cautious to act in meaningful ways when Charter concerns are brought to their attention. 

The former Chief Justice of Canada, Beverly McLaughlin said:

The Charter is not some holy grail which only judicial initiates of the superior courts may touch.  The Charter belongs to the people.  All law and law-makers that touch the people must conform to it.  Tribunals and commissions charged with deciding legal issues are no exception.  Many more citizens have their rights determined by these tribunals than by the courts.  If the Charter is to be meaningful to ordinary people, then it must find its expression in the decisions of these tribunals. 

These are some examples of some of the key issues that need to be addressed, although there are other issues as well. 

While the government may be on the right track with implementing this new system of justice, it is not fairly balanced. Until meaningful changes are made, I share the frustrations of many.

Rory Ziv is a criminal lawyer called to the bar in 2005. His law firm represent Albertans in all criminal matters throughout the province.