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PROCEEDINGS - Constitutional issues - Federal v. provincial jurisdiction - Canadian Charter of Rights and Freedoms

Friday, June 16, 2017 @ 8:30 AM  


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Appeal by four individuals charged with alcohol-related driving offences and subject to administrative licence suspensions, from the dismissal of their applications for judicial review, seeking a declaration that s. 88.1 of the Traffic Safety Act (Act) was unconstitutional. The provision provided for the implementation of an immediate administrative licence suspension for any driver charged with an alcohol-related driving offence, which would remain in effect to the date the charge was resolved, whether by a guilty plea, a conviction after trial, an acquittal or otherwise. A conviction garnered a 12-month driving prohibition for a first offender under the Criminal Code. Statistical evidence showed that section 88.1 had the potential to encourage drivers to plead guilty, as this resulted in a shorter overall suspension/prohibition on driving than that imposed on those who pleaded not guilty and pursued their right to trial. The purpose behind the section was to deter drinking and driving by making sanctions immediate, by increasing the public perception of the authorities’ ability to catch drunk drivers, and by reducing the use of scarce court resources to try such cases. The chambers judge found that the administrative licence suspension regime was not unconstitutional.

HELD: Appeal allowed. Section 88.1 of the Act was declared of no force or effect. The provincial administrative licence suspension regime was within the legislative power of the province and did not offend the doctrine of paramountcy, given that federal driving prohibitions could run contemporaneously with provincial suspensions. Section 88.1 was penal in nature because of the link between the provincial regime and criminal charges, and because a licence suspension was essentially punitive in nature. The ability to drive was so integral to participation in Canadian society that a licence suspension was truly punitive in nature. One of the goals of section 88.1 was to encourage drivers to plead guilty, thereby abandoning their right to a fair trial in order to shorten the total period of driving suspensions. The statistical evidence made it clear there was a compelling motivation for any driver to make a strategic decision to abandon the presumption of innocence until proven otherwise at trial, in favour of earlier licence restoration. The statistics showing that a driver who pleaded not guilty and was acquitted after trial would face a longer administrative licence suspension than a driver who pleaded guilty at first opportunity, established that the administrative licence suspension regime imposed under s. 88.1 of the Act was overbroad. The availability of recourse from an administrative suspension was not an adequate remedy for overbreadth, as those who succeeded in having their suspensions set aside would face an average three-month suspension. While the purpose of the section, to remove impaired driver from the roads, was pressing and substantial, the purpose of saving money in the administration of criminal justice was not. The administrative licence suspension regime was not the least intrusive legislative solution to the problem of traffic safety. The salutary effects of the system were not proportional to its deleterious effects.

Sahaluk v Alberta (Transportation Safety Board), [2017] A.J. No. 499, Alberta Court of Appeal, M.S. Paperny, F.F. Slatter and M.B. Bielby JJ.A., May 18, 2017. Digest No. TLD-June122017011