Alberta Court of Appeal strikes down part of drunk driving law

The Alberta Court of Appeal has struck down Section 88.1 of the province's Traffic Safety Act that allows mandatory suspension of licences for those charged with impaired driving.

High court says suspending licences of accused drivers before trial is unconstitutional

Since Section 88.1 of the Traffic Safety Act came into effect in 2012, drivers charged with drunk driving lose their licences immediately. The Alberta Court of Appeal has ruled that section is unconstitutional. (CBC)

The Alberta Court of Appeal has struck down a section of the province's Traffic Safety Act that allows immediate and mandatory suspension for anyone charged with impaired driving. 

In a split decision, Alberta's highest court ruled the current law violates the Canadian Charter of Rights and Freedoms, because it ignores the presumption of innocence and the right to a fair trial before any punishment is imposed.

In the majority 41-page decision, Justice Frans Slatter wrote that there are two things that can be said about the administrative licence suspension regime.

"The first is that it is clearly effective," Slatter said. "The second thing that can be said ... is that it was designed without any consideration for constitutional values underlying the Canadian legal system."

Justice Marina Paperny wrote a dissenting opinion. She essentially argued Section 88.1 isn't a charter issue because there is no constitutional right to drive.

Won't take effect for one year

Even though the law has been declared unconstitutional, it will remain in place for one year to give the government time to change it or ask for the issue to be heard by the Supreme Court of Canada. 

Alberta Justice Minister Kathleen Ganley said in a written statement Thursday afternoon that roadside suspensions "will remain in force" for the time being "and police will still be able to issue them to drivers who are charged with impaired driving offences over the next year."

Justice Minister Kathleen Ganley said she will be "looking at all of the legal avenues available" after Thursday's Court of Appeal decision.

Ganley said her department will be "looking at all of the legal avenues available." 

The government has until mid-August to decide if it will ask the Supreme Court to hear the case.

The Court of Appeal justices were told approximately one in five accused impaired drivers are cleared of any wrongdoing.

Law assumes every driver charged 'a danger'

The majority decision found the licence suspension practice goes against charter values "because it assumes that every driver who is charged with an alcohol related offence is, or will be a danger."

"The fact that 80% of those charged with alcohol related offences are found guilty does not detract from the fact that the rights of the other 20% of those charged are significantly impacted by the system," Slatter wrote.

Edmonton criminal lawyer Nate Whitling represented the appellants.

Lawyer Nate Whitling called Thursday's Court of Appeal ruling "a mixed decision." (CBC)

Whitling successfully argued that under the current system a person who is accused of impaired driving will have less suspended driving time if he or she pleads guilty without going to trial, compared to those who plead not guilty and go to trial. The difference can be about seven months.

"This law pressures both innocent people and not guilty people into pleading guilty to a criminal offence. And that's why it's contrary to the charter," Whitling said.

"If they decide to plead not guilty, given the delays in our current justice system, they're going to have to sit with a suspension for upwards of nine or 10 months," Whitling added. "And the pressure will be on them the whole time to just simply plead out and end the suspension."