calgary defence blog
A Defence lawyer's perspective on issues in criminal law
ALS Struck Down -- Thank you Mr. Sahaluk et al
Posted in IMPAIRED DRIVING andMay 19, 2017
It's about time! How many thousands of people have been sacrificed to recognize the value of our Charter rights?
After a long and costly battle, where Calgary DUI lawyers banned together to fund an expensive legal challenge, a majority panel of the Alberta Court of Appeal has struck down the indefinite license suspension imposed by operation of the Alberta License Suspension Program (ALS) in R. v. Sahaluk.
This was not only a long process for Mr. Sahaluk, who lent his name, reputation and case for the purpose of litigating clearly troubling legislation enacted by our Government, but a long process for the many defence lawyers across the Province who collectively donated hundreds of thousands of dollars (and time) to fight for the protection of civil liberties for all Albertans. With this in mind, I personally extend a most sincere “thank you” to all of the impaired driving lawyers who contributed to this cause, including Calgary criminal lawyers, Ian Savage, Tim Foster, Alan Kay, the rest of the Calgary contributors and the many Edmonton impaired driving lawyers (such Shannon Prithipaul) who joined together to make this happen. This a moment where every Albertan should appreciate the efforts made by a relatively small group of defence lawyers who sacrificed to preserve the civil rights for everybody. I think all of the contributors (including myself), let out a collective sigh of relief when the majority of the Alberta Court of Appeal recognized that ALS violated various sections of the Canadian Charter of Rights and Freedoms and was tantamount to punitive legislation, designed to encourage guilty pleas, with little respect for the presumption of innocence or the Accused’s Charter protected interests.
Mr. Sahaluk suffered a significant loss of personal income due to the license suspensions impact on his job. It doesn't take a particularly active imagination to appreciate the many sleepless nights he has had over years.
“If there’s no proof of guilt", said Mr. Sahaluk, "you shouldn’t be treated as a criminal until there is definite proof and a decision of proof of that guilt.”
Indeed, that is that most basic axiom in Canadian criminal justice, yet the Alberta Government unfairly achieved victory over many thousands of citizens who were merely accused of impaired driving through the imposition of this program, including the 20% who actually contested their case at trial and won. Despite being found “not guilty”, these people suffered the impact of Alberta’s indefinite suspension program. In other words, even though they won, they lost. Sadly, many people who had defences simply pled guilty to mitigate the length of time over which they would lose their license. To my mind, there is no world in which this is Justice.
Over the years I have spoken to many Crown Prosecutors who disagreed with the program, but sadly, a great many who fully supported this pre-guilt punitive legislation. This tacit support by recognizable numbers gives me serious pause for concern about the appreciation on the part of many lawyers and citizens about the value of our Charter rights. On one hand, this case is a shining beacon for the recognition of Charter protected interests, but is also a sad reminder of how easy it is to dispose of the very principles that make living in Canada special and the tragic reality that thousands of Canadians have to date, been punished by this unconstitutional law.
I wonder if anybody responsible for the pre-punishment of these people (many who would likely have been found "not guilty") have lost a moment of rest?
Today, however, I say thank you to everybody – including Mr. Sahaluk – for fighting for what was right. I also say thank you to the majority of our Alberta Court of Appeal who recognized the importance of the presumption of innocence and our Charter protected interests. This is sometimes very difficult to do against the backdrop of protecting those "accused" of crime.
I surmise that the Alberta Court of Appeal decision is not the end of the line for Mr. Sahaluk. There was a dissenting justice; meaning, there is strong possibility that the Government will try to launch this case to the Supreme Court of Canada. Though it's hard to imagine a path to rejecting Mr. Justice Slatter's thoughtful reasons, victory at the Supreme Court is not assured. So stay tuned, your Charter rights may have only gained temporary relief.
David G. Chow
Calgary DUI lawyer
Representing clients throughout Alberta, including Cochrane and Lethbridge.
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