The new provisions
came into effect on July 1, 2012. The amendments provide for vehicle seizures for three or seven days from people who are charged under the federal Criminal Code with impaired driving, driving with a blood alcohol level that exceeds .08, and refusing to provide breath samples. The law also makes the use of an ignition interlock system mandatory for a set period of time for anyone convicted of those offences.
The portion of the changes that is being attacked is the mandatory license suspension from the time a person is charged with a criminal drunk driving offence until the matter is resolved in court. The time of the suspension will vary from person to person, depending upon how soon their matter can come to trial.
While other provinces provide for license suspensions and vehicle seizures upon arrest and before conviction, only Alberta makes these suspensions for an indefinite period of time.
Edmonton lawyer Fred Kozak will argue on behalf of several clients that this law violates section 11(d) of Canada's Charter of Rights and Freedoms. That section says everyone 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. He will also argue that this portion of the amendments is unconstitutional because it amounts criminal law. Under Canada's constitution, the power over criminal law rests solely with the federal government. The provinces have jurisdiction over licensing and road safety.
The length of the pre-conviction suspension varies from person to person, not because of their record or the seriousness of the alleged offence but because of how long it takes their matter to get to court. It will take Albertans longer to get a trial date in some parts of the province than it will in other areas. Kozak is quoted by Canadian Press
as saying, "The loss of your license can essentially mean the loss of your job, the loss of your livelihood, the loss of your ability to support your family."
Kozak added, "We're using these facts to illustrate how the new regime can be unfair to people."
The federal Criminal Code also provides mandatory driving prohibitions for those who are convicted of alcohol related driving offences. But these penalties can only come into effect upon conviction. Unlike a child molester who can have the amount of pre-trial custody deducted from the final sentence, there is no provision to take into account whatever time the offender spent unable to legally drive prior to conviction.
Kozak is quoted by CBC
saying, "Nobody would argue with the fact that impaired driving is a social, serious issue. We should be doing everything we can to reduce the incidence of that. But you shouldn't trample on people's constitutional rights to do it."
According to the lawyer, many people are pleading guilty just to bring a quicker and definite end to their suspensions.
The application for the constitutional challenge is expected to be filed later this week in the Edmonton Law Courts.