Even More Concerns Raised by New Provincial Legislation in Alberta
Another concern raised by the new provincial legislative changes in Alberta concerning impaired driving relates to the procedure and affect of a criminal charge. Currently, the Province of Alberta uses the results obtained from the criminal process to institute a three month licence suspension. Therefore, if a person blows over the legal limit, refuses to provide a breath or blood sample, or is believed to be impaired by alcohol or a drug, the provincial government uses these results to suspend the licence for a period of three months.
Can the Province of Alberta do this?
Court’s have said yes, because the Provinces have the power to control licencing and issues concerning road and highway safety. Additionally, the three month suspension is a separate provincial punishment. It does not affect or change the procedure or effect of the criminal charge. In the case of a three month suspension, the provincial government is simply using the results of the criminal investigation to create its own punishment. This has been held to be constitutionally valid.
Does this not violate the presumption of innocence?
Unfortunately no, because the innocence presumption applies to charges with potential penal (jail) consequences, and to criminal law. It does not have to apply to issues concerning the granting or taking away of a licence.
However, the new Alberta legislation changes this. The new legislation wants to take your licence until trial. In this way it is directly affects and changes the nature of the criminal offence, because now a person is being punished while they await their trial! This legislation reaches too far by affecting the criminal process and its procedure. While prior provincial legislation instituted punishments regardless of the outcome of the criminal offence (or if there even was a criminal charge laid), the current legislation directly affects the presumption of innocence guaranteed in the criminal process.
This office believes that this legislation will not withstand constitutional scrutiny. While Court’s have granted the provincial government wide latitude to legislate in matters concerning the granting and revoking of licences, it is impermissible to attach consequences to a criminal offence, thereby changing the very nature of the criminal process.
Only time and the Court process will divulge the legitimacy of this legislation, but the public needs to stay informed and know that there rights are being affected and infringed. The provincial government is trying to cloak invalid legislation with the gloss of legitimacy, hoping that fear and rhetoric will carry the day. Hopefully, the proper rule of law and constitutional principles will reveal this legislation’s overreaching and illegal nature, resulting in its striking down.
Posted on March 15th, 2012