Current practice amounts to punishment before conviction, lawyer says

A constitutional challenge to immediate licence suspensions in connection with Alberta’s impaired driving laws will be filed in court next week.

Since July 1, if an Albertan is charged with impaired driving, they are suspended from driving until their case is resolved in court. To constitutional lawyer Fred Kozak, that rule puts punishment before verdict.

“It fundamentally undermines the presumption of innocence,” he said. “It punishes people before any determination that they’ve done something wrong.”

Kozak, who will lead the challenge, said the current state of the law also can also unfairly influence people to plead guilty. A driver who pleads guilty could see their matter go to court within weeks and they could be driving again within a number of months with a breathalyzer-interlock system. A driver who elects to fight the charge and plead not guilty could be waiting years to get to court.

In some areas of the province, drivers are already waiting until March 2014 to get trial time in rural courthouses, said Shannon Prithipaul, a lawyer who takes on many impaired cases.

To a client who requires a licence for their job or lives on a farm, the wait for a trial can “completely destroy” them, she said. This forces people to plead to the charge regardless of circumstances, she said, because there could be a bigger punishment with an acquittal than with a first-offence guilty plea.

“How would you feel pleading guilty and having a criminal record when you know you have a strong legal argument?”

Previous to July 1, a driver charged could receive a 24-hour licence suspension, followed by a three-week grace period to get their affairs in order before their licence was suspended for a further 90 days. That grace period no longer exists and there is now no 90-day limit.

If a driver is convicted, any driving prohibition ordered by a judge will not take the previous suspension into account, Kozak pointed out. The sentence begins anew as if the driver was not previously suspended.

In December, Kozak will apply to the Court of Queen’s Bench for a stay application that would set automatic licence suspensions aside until the constitution challenge can be fully heard.

The challenge will represent five or six selected clients with varying circumstances, Kozak said.

A suspended driver can apply to the Transportation Safety Board for reinstatement of driving privileges, but the process can take months.

“The provincial government said it wanted to get tough on impaired driving,” Kozak said. “No one would argue with that intention, but you have to strike the right balance.”

Kozak will also argue that Alberta overstepped into federal jurisdiction concerning matters of criminal law.

The challenge only relates to licence suspensions and will not include other aspects of Alberta’s impaired driving legislation, Kozak said.

Source: The Edmonton Journal


Last updated on: 2012-11-25 | Link to this post