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A Defence lawyer's perspective on issues in criminal law
Please be aware that all commentary in my blog is designed to promote discourse on a variety of topics. Though I certainly do some research on the topics discussed and often offer my "two-cents", please keep in mind that nothing I say in this blog is meant to be taken as authoritative on any subject. My comments are really just me exercising my freedom of expression for the purpose of offering some insight on topics related to the practice of criminal law. As with all topics of discussion, it is important for you to be critical. If you need a defence lawyer, please call 403.452.8018 for a free telephone consultation or consult with an experienced Calgary criminal lawyer. Happy reading! Happy watching!
SafeRoads Alberta: Judge, Jury and Executioner
Posted in IMPAIRED DRIVING andDecember 6, 2020
safe roads alberta
There is a new Sheriff in town; its name: “SafeRoads Alberta”.
SafeRoads has changed traffic safety law in Alberta by introducing new drinking and driving enforcement measures within the recently enacted Provincial Administrative Penalties Act, 2020 (“PAPA 2020”). According to the Alberta Government “the Provincial Administrative Penalties Act, 2020, will make our roads safer by introducing stronger and immediate impaired driving penalties and reducing the time it takes to enforce traffic and non-criminal impaired driving matters, to ensure impaired drivers are off the streets”.
The backbone of the new legislation rests on power vested in police to administer Immediate Roadside Sanctions (IRS) when they have “reasonable grounds” to believe that a motorist “has committed an impaired driving offence”. Effectively, the new law has eviscerated the checks-and-balances of our previous system by placing incredible power into the hands of police to punish the presumptively innocent, while at the same time legally permitting willful blindness to real crime. Neither of these issues squares with me.
In our law, reasonable and probable grounds to believe that a person has committed an offence is not a particularly onerous standard. The legal test is that the arresting officer must have an honest belief that the accused committed an offence and objectively speaking, there must be a reasonable basis for that belief. For the purpose of Canadian criminal law, the definition of “probable” as interpretted for “reasonable and probable grounds” (or reasonable grounds) has been defined as something less than “likely”.
Therefore, where the criminal standard of proof requires “proof beyond a reasonable doubt” (something closer to absolute certainty) and where strict liability requires proof on the balance of probabilities (51%), SafeRoads Alberta now authorizes armed police officers to
- issue an immediate 15-month license suspension,
- up to a $2000.00 fine,
- seize property (motor vehicle) for 30 days and
- require payment of exorbitant State imposed impound fees likely totalling in excess of $2000.00 to retrieve the seized property
based on a legal test that does not even require evidence to be proven “on the balance”. Put another way, to seriously penalize you in a manner that could have a grave impact on your ability to provide you and your family the necessities of life, all a single police officer requires is a belief that it is equally likely you have committed an impaired driving offence than not.
MANDATORY ALCOHOL SCREENING
I suspect that most investigating police in Alberta will rely on recently enacted Mandatory Alcohol Screening (MAS) provisions in the Criminal Code to treat every motorist as a “supply sample”.
I remind you that “[o]n January 30th, 2020 the CPS…purchased an approved screening device for every “frontline” officer and [every frontline officer has] been instructed to use it on every motorist, as part of every traffic stop”.
I am not going to reiterate all of my concerns for this procedure as expressed in my article "Jackboot Mandatory Breath Screening"; rather, I will simply say that those concerns still apply.
For the purpose of this article, I think it is important to recognize that defence lawyers have long issued stark slippery-slope warnings that have been shrugged-off by prosecutors and Courts across this country. For example, in cases such as R. v. Thomsen and R. v. Orbansky, defence counsel unsuccessfully argued that s. 10 of the Canadian Charter of Rights and Freedoms – right to counsel – should be plainly construed and strictly enforced. In my opinion, the failure on the part of our highest Court to assiduously defend Charter-protected interests – such as right to counsel -- is responsible for Charter thumbing legislation such as that in PAPA 2020.
I suppose that when our highest courts can barely see two feet in front of their nose, this is what we get. To me, when our Supreme Court compromises basic Charter-protections, to the point of neutering the plain language (such as that in s. 10) to such a degree that an ordinary person, using basic literacy, cannot rely on simple English to interpret the written word, that Court is responsible for the fundamental erosion of our law and the consequences flowing therefrom.
I have long-held the opinion that cases such as R. v. Thomsen and R. v. Orbansky highlight that Canada’s highest court sometimes acts more like a Supreme negotiator rather than a body entrusted to uphold our Charter-protected interests. This negotiation shovelled the path for SafeRoads Alberta/PAPA 2020.
the good, the bad the ugly
Though I am of the view that the path to PAPA 2020 was paved by decades of neutering the Charter, I do not view some of what PAPA 2020 will accomplish as all bad. Like many laws, some parts are good, some bad, some ugly.
As an Alberta impaired driving lawyer who has defended several hundreds of impaired driving cases, my position is that criminalizing some incidents of impaired driving is not in the public interest. As you may already suspect, my mindset is seldom black or white. Indeed, in my opinion, absolute black or white has no place in a properly functioning justice system. There are always shades of grey.
Though I cross paths and sometimes swords with many people who interpret things very strictly – to the point where they think it is always in the public interest to penalize those who have offended the law – my approach has been that law is an imperfect social construction, crafted by well-intended but imperfect human beings. Therefore, while judges and legislators may try to draft law in a manner that broadly embraces the public interest, it is important to remember that public interest is often a very deep and complicated matter. As such, there are incidents or legal incursions occurring within the edges of the law that can be treated with metaphorical kid-gloves. Happily, though there are police, Crown Prosecutors and judges who lack this same vision, there are some who do not.
A benefit of SafeRoads Alberta/PAPA 2020 is that some people at risk of a Criminal Code conviction for impaired driving will avoid a criminal record. Though I say this is a benefit, it is also a consequence; for some people who may really deserve a criminal record will avoid the potential consequence of having one. This doesn’t sit well with me for two reasons:
(1) PAPA 2020 could result in easy criminal law avoidance for underserving persons and
(2) PAPA 2020 may treat persons barely in breach of the law and perhaps more deserving of kid-gloves treatment the same as those clearly breaking the law who deserve something more.
The question is, if we agree that some alleged impaired drivers deserve to be treated with kid-gloves and some not, what model is best designed to accomplish that end?
crown discretion model
When I was defending impaired drivers as a student from 1999-2002 and then prosecuting for Alberta Justice from 2003-2005, the model was that the Crown either didn’t prosecute most at or extremely-close-to-the- legal-limit impaired driving cases and if they did, it was not unusual for a non-Criminal Code plea bargain to be offered. The plea bargain was that the criminal driving offence(s) would be withdrawn in exchange for the accused pleading guilty by consent to a Traffic Safety Act violation – usually “careless driving”. The penalty for this plea bargain was not at all insignificant: usually a minimum $1500.00 fine, along with a 90-day driving suspension consecutive to the then 90-day suspension imposed as an immediate roadside sanction.
There were a number of reasons for this plea bargain, including a thought that for less serious infractions – such as involving seemingly unimpaired people blowing slightly over the legal limit -- the public interest may not have been served by criminalizing the conduct. To the extent that PAPA 2020 relieves this class of accused from the risk of criminal conviction, I am in complete agreement.
My issues with PAPA 2020 are the serious unintended consequences flowing from a legislated lack of due process, combined with the fact that many undeserving motorists may avoid consequences they don't deserve.
I think it is safe to say that the Crown discretion model was not a tool for ignoring the actual or theoretical carnage of impaired driving; rather, it was an option sensitive to a bigger picture: specifically, that stripping people of their ability to drive could have a host of other deep and unintended consequences for our community (such as loss of income or employment).
I think it is also worth highlighting that in my experience as a former Crown Prosecutor, now defence lawyer, the rates of recidivism for persons who received these kinds of plea bargains appeared very low. Since many low-level impaired drivers were otherwise well intended law-abiding citizens who made a mistake or suffered a short-term lapse in judgment, they learned their lesson. Now this is not to say that some didn’t re-offend, only that in my experience, re-offending was relatively uncommon.
Advocates of the new system will certainly hurl impaired driving statistics – citing injury and death as the reason for the necessary change in law. Public safety is the mantra. These same advocates will certainly suggest that British Columbia’s administrative model is a shining example about how this law can enhance public safety. Though I have familiarized myself with these statistics, I haven’t closely researched or studied them. For present purposes, I accept that the statistics support this line of interpretation. On basic reflection, however, there is a potential flaw in the data.
anti-impaired driving message
Over the last two-decades the Government and various lobby groups (such as Mothers Against Drunk Driving/MADD) have waged a laudable anti-impaired driving campaign. The MADD message has been baked into our collective consciousness and has likely positively impacted an entire generation of new drivers. My point is, where Government likes to take the credit for public safety, I think it’s inappropriate to ignore the evolution of our public conscious arising from years of education and exposure to messaging.
While I recognize the potential benefit to public safety arising from the new SafeRoads model, I think we should be cautious that these types of Government initiatives are singularly or even meaningfully responsible for reducing injury and death caused by impaired driving offences.
There is a serious question as to whether the implementation of a hardline administrative model, operating at warp speed but arguably lacking due process, benefits the public interest more than the combination of a reasonable immediate roadside sanctions model working in consort with our criminal justice system.
In 1764, Cesare Baccaria, in his book “On Crimes and Punishment” posited that it is better to prevent crimes than to punish them, but where crime must be “punished”, the punishment must be both just and swift.
It’s clear that PAPA 2020 aims at “swift punishment”, but is it just? In my opinion, the answer is no; it is punishment, but may not be just punishment. In my view, the now defunct “prosecutorial discretion” model was much fairer; for it was capable of swiftly dealing with those who were more deserving while criminally denouncing those who were not.
more trust in police than crowns?
In approximately 2008, I understand that the Attorney General of Alberta, by memorandum to every Crown Prosecutor, directed that frontline prosecutors were not permitted to exercise their discretion to resolve criminal impaired driving cases with plea bargains under the Traffic Safety Act. What was the reason for the AG shackling Crown discretion?
Today, the message of the Alberta Government is that it trusts police to be the instrument of swift justice. Through SafeRoads Alberta, it appears the Crown has been largely removed from the impaired driving equation for all but the most obvious and serious cases. Though some Crowns might be happy with a smaller job portfolio, I think there is some reason for all of us to be concerned that over the years the Alberta Government arguably appears to trust its Crowns less and less, while trusting its police more and more.
Please understand, though in recent years I have written articles expressing concerns about trust in our police, I do not mean to say that we can’t trust them. What I am saying, however, is that Crown Prosecutors are an essential check-and-balance in a properly functioning justice system. Removing checks-and-balances is dangerous.
swift, myopic punishment, not justice
The real benefit of SafeRoads Alberta/PAPA 2020 may have little or nothing to do with meaningful public safety or justice and more to do with money and expediency. Swift and myopic punishment is not justice.
To reiterate, all that is required to be treated under PAPA 2020 is that a single police officer has reasonable grounds to believe an impaired driving offence has been committed. Once this occurs, the motorist is issued a fine, a lengthy driving suspension and has the motor vehicle seized. Ironically, the property seized may not even belong to the alleged offending motorist.
To dispute the treatment, the motorist must file a dispute and pay a dispute fee within 7 days from the date of the investigation. Yes, there is a fee for due process.
That motorist will then be permitted a hearing within 21 days of filing the dispute and will receive a decision sometime after that. Even if the motorist manages to magically convince the administrative body that reasonable grounds did not exist, he or she has already lost property for nearly a month or more, driving privileges and possibly a lot more than that.
By way of example, what happens if the impounded vehicle is a family vehicle, shared by other members of a household unit? What happens if the vehicle was borrowed by the accused – perhaps not even owned by the alleged offending driver? Ask yourself how this legislation could impact the livelihood of innocent property owners beyond the motorist him or herself.
Seriously, did nobody at our Alberta Legislature stop to think about this grade-school-obvious problem prior to enacting this legislation?
My point is, SafeRoads Alberta/PAPA 2020 is a law that could possibly result in unjust outcomes for not only the motorist but for completely innocent persons who may not have even been in the motor vehicle at the time of driving. Additionally, the due process procedure outline in PAPA 2020 is admittedly swift, but is obviously not swift enough to ensure that an innocent person is pre-punished for something based almost entirely on police discretion.
In Goodwin v. British Columbia (Superintendent of Motor Vehicles), 2015 SCC 46 the majority of the Supreme Court of Canada held that the administrative scheme in British Columbia designed to combat impaired driving “does not create an offence within the meaning of s. 11 of the Charter” (see para. 39). The majority in Goodwin also rejected the Applicant’s assertion that the administrative scheme overstepped by intersecting with the criminal law. Alberta is likely placing a lot of trust in cases such as Goodwin for upholding PAPA 2020.
Setting aside the prima facie peculiarity that the SCC might uphold PAPA on grounds that it does not create an offence even though the penalties triggered under the Act occur on the basis of reasonable grounds to believe a criminal impaired offence has been committed, the exercise of reasonable hypotheticals shows that the consequences of PAPA 2020 may inflict serious harm on the undeserving or completely innocent.
Perhaps the Government is right; SafeRoads Alberta/PAPPA 2020 might improve road safety. It might ensure more potentially impaired drivers walk, take the bus, an Uber or flag a taxi. Indeed, the imposition of swift penalties with questionable due process may have the desired effect.
In a broad sense, I expect SafeRoads Alberta/PAPA 2020 will reduce the number of people with driving licences, the number of privately owned motor vehicles parked on private driveways and the number of deserving impaired drivers prosecuted in our criminal courts. I also expect there to be a dramatic increase in the amount of private property stored in public vehicle impound lots and in the short term, some added dollars to Government coffers. The long-term impact from people losing jobs, homes and/or increasing debt to maintain the financial and social wellbeing of their family is a toll that may forever go unrecognized. Of course, with pressure on the family unit comes a host of other problems: domestic violence, divorce, disruption and psychological trauma. It could be that in the Government’s arguably myopic attempt to address one problem, they cause more problems – perhaps even more serious problems.
To me, obviously frightening is that SafeRoads Alberta/PAPA 2020 will be unleashed using police – who absent important checks-and-balances and judicial oversight – are now authorized to act as judge, jury and executioner.
In the opinion of this Calgary impaired driving lawyer, the costs of ensuring justice outweigh the savings of delivering a system that is potentially unjust.
Again, these are my thoughts, not yours.
Thank you for reading
Calgary DUI Lawyer
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