NEW IMPAIRED LAW COMING

Alberta’s Proposed New Impaired Driving Law

[1]          About ten years ago British Columbia implemented a new legislative scheme whereby impaired drivers were not charged criminally if they were caught by police drunk driving. The trade off to not charging a person criminally was that a police officer was given the power to suspend a person’s license on the spot. A major criticism of this legislation was that the police officer, in effect, became “judge, jury and executioner”. Last week Alberta introduced similar legislation.

[2]          A typical investigation runs something like this: A police officer stops a vehicle and if he suspects the driver has been drinking, he administers what is called an approved screening device “ASD” test on the driver. The ASD is an instrument that collects a person’s breath sample. If the breath sample analyzes higher than a certain amount, typically “over 80”, the police officer has the authority to suspend the driver’s license license immediately.

[3]          Under Alberta’s proposed new law the “Provincial Administrative Penalty Act”, for first offenders, this will mean an automatic license suspension of 15 months. The driver will be allowed to drive again after 3 months with a “blow-box” which is costly. There will also be a fine issued of $1000.00, a vehicle seizure with associated impound fees, reinstatement fees and courses to take. In addition, there is a major silent cost. The cost of insurance premiums increasing.

[4]          A chief concern regarding this new regulatory scheme is proper oversight.  At the road side when a police officer is administering an ASD test there needs to be a process that ensures that the testing that is conducted is accurate. The Supreme Court of Canada in R. v. Goodwin 2015 SCC 46 recognized that ASD’s can register false positives.

[5]          For the scheme to be constitutionally sound police may have to inform drivers that if they fail an ASD test they are entitled to provide a second sample into another ASD to verify the accuracy of the first test (Goodwin paras 77 and 84).

[6]          Another method of ensuring further police accountability it to video record the taking of breath samples. Currently, RCMP policy is to record driver stops. However, other police services in Alberta do not have this recording requirement. I suggest this recording policy needs to be implemented uniformly in all Alberta.

[7]          Under the new legislation, if a driver is given a roadside suspension “a notice of administrative penalty” they will have 7 days to challenge the suspension. The review process is intended to move swiftly with one adjudicator deciding whether to confirm or cancel the administrative sanction within 30 days of the suspension. That adjudicator’s decision would also be subject to further judicial review.

[8]          The Government has touted the new legislation as being more effective in combating impaired driving both in terms of ‘cost of litigation’ and ‘reduced occurrence of impaired driving’. Police resources will increase because police officers will spend less time processing impaired drivers and less time in court. Furthermore, Crown Prosecutors will have more time to focus on serious cases.

[9]          Is this process fair? The issue has largely been decided by the Supreme Court of Canada in the Goodwin decision cited above. A case by case analysis will be required to determine if an issued suspension is valid.