On December 8, 2011, the Legislature of Alberta's Traffic Safety Amendment Act (the "TSAA") was given Royal Assent, and it will come into force upon Proclamation. This Act implements new measures to combat impaired driving in Alberta, and imposes tough new penalties for drivers found by police to have a blood-alcohol level of .05 or greater.
The key features of the TSAA are summarized in an FAQ prepared by Alberta's Ministry of Transportation and available here. In identifying impaired drivers, the TSAA places dramatically greater reliance upon roadside screening devices. Unlike the impaired driving provisions of the Criminal Code, the TSAA does not contemplate a "warn" or "fail" result from a roadside screening device followed by a more formal (and reliable) breathalyzer test at the police station. Rather, the consequences of the TSAA are imposed automatically as a result of the roadside testing. With respect to reintegrating drivers convicted of impaired driving, the TSAA contemplates an increased use of "ignition interlock devices".
The TSAA is modeled upon certain amendments to British Columbia's Motor Vehicle Act, R.S.B.C. 1996, c. 318, which have been in force since September 20, 2010. The key features of this B.C. legislation are found in ss. 215.41 to 215.51, which have been referred to as the "automatic roadside prohibition" or "ARP" regime.
The ARP regime was the subject of a partially-successful Constitutional challenge in the case of Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639, and it may be safely assumed that the TSAA will faces similar challenges in Alberta. The Constitutional issues raised by the ARP regime include division of powers issues, as well as individual rights protection issues.
The petitioners in Sivia argued that since the ARP regime creates new offences, new penalties, and new search and seizure mechanisms, it constituted criminal law, and as such fell within the exclusive jurisdiction of the federal Parliament under s. 91(27) of the Constitution Act, 1982. In response, the Provincial Crown argued that the ARP regime, in its "pith and substance" is legislation with respect to "property and civil rights" and as such falls within provincial jurisdiction conferred by s. 92(13). In rejecting this challenge, Justice Sigurdson applied the standard established by the Supreme Court of Canada in Chatterjee v. Ontario (Attorney General), 2009 SCC 19, where Justice Binnie stated:
The Constitution permits a province to enact measures to deter criminality and to deal with its financial consequences so long as those measures are taken in relation to a head of provincial competence and do not compromise the proper functioning of the Criminal Code including the sentencing provisions.
Since, in Justice Sigurdson's view the ARP regime did not compromise the functioning of the Criminal Code's impaired driving provisions, it falls within the Province's jurisdiction under s. 92(13).
The resolution of the division of powers issue in Sivia was dictated in large measure from the earlier decision of the British Columbia Court of Appeal in Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114 in which the Court held that B.C.'s administrative license suspension regime (now rendered superfluous by the ARP) was validly enacted pursuant to s. 92(13). In Alberta, a similar authority is provided by the Alberta Court of Appeal's decision in Gonzalez v. Alberta (Driver Control Board), 2001 ABQB 757, which case would potentially govern the result in any division of powers challenge to the TSAA.
With respect to their Charterchallenges, the initial obstacle faced by the petitioners in Sivia was the existence of binding authority to the effect that the right to circulate in a motor vehicle is not a "liberty" protected by s. 7 of the Charter, but rather a licenced activity subject to regulation and control: Buhlers v. British Columbia (Superintendent of Motor Vehicles), 1999 BCCA 114. (Similar authority exists in Alberta: R. v. Neale, 1986 ABCA 169.) Consequently, their Charter challenges were limited to ss. 8, 10(b) and 11(d).
Sub-section 11(d) of the Charter provides that "Any person charged with an offence has the right... to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal". Among other things, the petitioners in Sivia pointed out that the results of a roadside screening device cannot be challenged on review, and that it is not even necessary for the police officer to swear as to the accuracy of the test or that the driver's ability to drive was impaired. However, as the introductory words of s. 11 provision confirm, s. 11(d) applies only to persons who have been changed with an "offence". The leading case regarding the interpretation of this term is the decision of the Supreme Court of Canada in R. v. Wigglesworth,  2 S.C.R. 541, where a 3-2 majority held that a matter will fall within s. 11 "either because by its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence". In finding that "Suspension of a driver's license is the withdrawal of a privilege, and not a punitive sanction", Justice Sigurdson found that s. 11 simply does not apply to the ARP, and dismissed the challenge on this threshold ground.
With respect to the petitioner's challenge to the ARP regime based upon s. 10(b) of the Charter, Justice Sigurdson found that the denial of counsel in the brief interim between a traffic stop and the breath demand did violate s. 10(b), but was demonstrably justified by operation of s. 1. This conclusion was dictated in large measure by such Supreme Court decisions as R. v. Orbanski; R v. Elias, 2005 SCC 37 where the same conclusion was reached with respect to roadside stops conducted under the Criminal Code.
In the most interesting part of the judgment, the petitioners in Sivia also challenged the ARP on the basis that it violates s. 8 of the Charter which protects against unreasonable searches and seizures. In analyzing this issue, Justice Sigurdson emphasized two "crucial" factors: "first, that the search by the screening device is part of a regulatory scheme focused on extremely important government objectives, and second, that drivers subject to the search under the ARP regime have a diminished expectation of privacy in their breath". Also of particular importance to the analysis in Sivia was the absence of any meaningful right of review from the ARP's automatic license suspensions. In B.C. the driver's only right of review is to the Superintendent who may only reverse the suspension if it is found that the roadside screening test did not result in a "warn" or "fail" result as the case may be. No investigation into actual impairment, or the ingestion of drugs or alcohol is required on such a review.
Having reviewed these factors, Justice Sigurdson reached different results with respect to ARP provisions governing a "warn" roadside screening test result (i.e. .05 to .08) and a "fail" test result (i.e. over .08).
With respect to the provisions imposing penalties for a "warn" result, Justice Sigurdson noted that these were relatively light penalties, and were for a regulatory purpose dissimilar to the criminal law. As such, these provisions were found not to violate s. 8 of the Charter.
But with respect to the ARP's "fail" provisions, Justice Sigurdson noted the close similarity to the Criminal Code's impaired driving provisions, the relative seriousness of the penalties, the fact that the search is based on suspicion rather than reasonable belief, the limited ability to challenge the results, and the fact that the initial seizure leading to the "fail" testing result was authorized by the Criminal Code. Consequently, Justice Sigurdson held that the "fail" provisions of the ARP regime do violate s. 8 of the Charter. Further, it was found that this violation of s. 8 could not be saved operation of s. 1 of the Charter and the test established in Oakes since "the Province could easily have provided in the legislation a reasonable and meaningful review process where a driver subject to a lengthy automatic roadside prohibition could challenge the results of the screening device".
An initial review of the Sivia decision would appear to raise concerns with respect to the Constitutional validity of the TSAA of Alberta since the two regimes are substantially similar. There is a crucial difference however. Unlike B.C.'s ARP regime, the TSAA creates a more meaningful review of automatic license suspensions for blowing over .08. Pursuant to s. 39.2(5) of the Traffic Safety Act as amended, the driver may appeal to the Board which may only confirm the license suspension or disqualification of it is satisfied that the driver (a) was in fact impaired from consuming alcohol or drugs; (b) had a blood alcohol level over .08; or (c) refused to provide a breath sample. In this manner, the Legislature may have enacted the "meaningful review process" found to be lacking by Justice Sigurdson in Sivia.
For more information, visit FMC's Canadian Constitutional Law Blog at www.canadianconstitutionallaw.com
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