Why Alberta should steer clear of decriminalizing impaired driving - Afternoons with Rob Breakenridge

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Big stories, big guests, the big picture. Afternoons with Rob Breakenridge, weekdays, 12:30 to 3:00, 770 CHQR.

Rob Breakenridge (01:33):
Welcome to this hour of the program. Rob Breakenridge with you here on this Thursday afternoon. Obviously, a lot of ground still to cover today. A lot going on today. We got one eye on now what's happening nationally with these protests. We'll update that. Got a few other things I want to get to as well. But want to get in this hour with a conversation around impaired driving law.

Rob Breakenridge (01:54):
Now, certainly there's been a lot of focus as of late on some of the changes brought in federally to the criminal code and new powers that police have when it comes to demanding people provide a breath test, for example. But there's also a conversation to be had around how we administer this law.

Rob Breakenridge (02:11):
Now, certainly people remember back, I think, when Alberta went forward with what was described as the .05 changes, the idea that there would be an option to use administrative approach to dealing with, not necessarily technically impaired drivers, we created this new class of somewhat impaired drivers, I suppose you could describe it as.

Rob Breakenridge (02:29):
But BC has taken that administrative approach even further. So situations where someone blows over .08 or situations where someone is seen to be refusing to provide a breath sample, there's the option to proceed criminally or to proceed administratively in what's been described as kind of a decriminalization of impaired driving. It creates a lot of issues, I think, that comes along with that.

Rob Breakenridge (02:53):
Now, maybe to governments there's the advantage of easing some of the burden on the courts, but there's some other consequences as well. So BC has done this now for a few years. It's something that Alberta has had an eye on. It was something that the previous government considered a couple of years ago. And from what we're hearing it's something that the current government is looking at.

Rob Breakenridge (03:12):
So I wanted to explore this in a bit more detail. And joining us to do that, we are pleased to welcome to the program in studio with us here today, Greg Dunn, is a Calgary-based criminal defense attorney with Dunn and Associates, has been following this issue for a few years now. Greg, great to have you with us here. Welcome to the program.

Greg Dunn (03:27):
Thanks for having me, Rob.

Rob Breakenridge (03:28):
All right, well, let's explain first of all the difference here, the difference between criminal versus administrative law, the difference between what BC does and what Alberta does. Help set the table here for us.

Greg Dunn (03:39):
Okay, sure. So overall when we talk about this aspect of decriminalization, you're really talking about two main things. You're talking about potentially changing the sanction for an impaired driving offense. And more importantly to defense lawyers especially, you're changing the process from a criminal process to an administrative process.

Greg Dunn (04:03):
So let's talk about the first one first, which is changing the sanction. So changing the sanction is pretty easy to understand. Essentially you're going from charging someone criminally for impaired driving to giving them a traffic ticket, essentially, or something akin to a bylaw ticket or something that won't result in a criminal sanction.

Greg Dunn (04:22):
And so that has its own set of consequences, and obviously to victim advocates and people that have lost loved ones to impaired driving, really it does send the wrong message to people to say, "Hey, driving drunk is no longer a criminal offense. It's now going to be a traffic ticket." I mean, if we were like on the Joe Rogan program here, and you were feeding me bourbon. And we had a conversation at the end of the show, and I said, "Rob, we're feeling a little tight. We're going to drive home." Now, would you be more concerned about getting a traffic ticket on the way home or would you more concerned about potentially being arrested, going to jail, being handcuffed, and getting a criminal conviction?

Rob Breakenridge (05:03):
Yeah, exactly, yeah.

Greg Dunn (05:03):
So it really does have a tremendous effect on what we call general deterrence and undermines general deterrence.

Greg Dunn (05:13):
Now, that being said, when we look at it as defense lawyers we're a bit more focused on the process. And when you decriminalize impaired driving, what you've done is you have taken the process of interaction with the state, which is the police officer, from a criminal sphere, and you've taken it to an administrative sphere.

Greg Dunn (05:34):
So what does that do? Well, I'll give you a couple examples for your listeners because they may say, "Well, what's the difference? One's a traffic ticket, one's a criminal offense. How does it change the interaction between you and the police officer?" Well, when you're charged under a criminal offense, you have something called the presumption of innocence. It's what we call the golden thread that goes through all of criminal law is that you are presumed innocent until proven guilty.

Greg Dunn (05:59):
So what that means is that the police officer may allege that I've committed an offense. I may have driven drunk, but I don't suffer any consequences until I'm proven to be guilty in a court of law. So that means that the state has to go... We got to go in front of a judge. They got to martial evidence. And the burden is beyond a reasonable doubt.

Greg Dunn (06:20):
This doesn't happen under administrative law. Administrative law, the penalty is meted out at the side of the road by the police officer. There's no judge. There's no independent tribunal that looks at it before it happens. So at the side of the road, the police officer determines if you're drunk. He determines if you're impaired. He determines if your vehicle is going to be seized. He determines if your vehicle is going to be impounded. He determines if you're going to get a a financial sanction. And all of that is determined by the police officer you interact with at the side of the road.

Rob Breakenridge (06:56):
On the spot.

Greg Dunn (06:57):
On the spot.

Rob Breakenridge (06:58):
Yeah.

Greg Dunn (06:58):
Now, and I mean, in a liberal democracy, I mean, I think offends everyone's sentiments that a police officer can show up and say, "Hey listen, I'm taking your car. I'm taking your vehicle. I'm impounding it. You're now going to get a substantial fine. And if you don't like it, you can go to a tribunal and argue with them and try to prove yourself innocent."

Rob Breakenridge (07:18):
So there's recourse, but it's after the fact.

Greg Dunn (07:20):
It's flipped the criminal justice system on its head so that you're presumed innocent until proven guilty. So what you've really done is you've really provided the state with a tremendous amount of power and clothed it within the police officer who's doing an impaired driving investigation. And from a defense lawyer perspective, it's really problematic, and it's concerning, and from a civil libertarian perspective.

Greg Dunn (07:50):
The other thing that's concerning to us from moving it from a criminal perspective to an administrative process is under criminal law, police officers are subjected to the Charter of Rights and Freedoms. So the charter governs the powers of police officers that interact with citizens.

Greg Dunn (08:12):
So let's say that a police officer pulls you over because of a certain ethnic persuasion, or say you're driving somewhere late at night that he thought you shouldn't be, or maybe you had Ontario plates with [inaudible 00:08:30]. Maybe in this day and age, we'll give him a pass on that. But pulling people over for reasons that they don't have lawful authority. Or maybe he slaps you around a little bit, maybe you get mouthy with him and the police officer gets physical with someone.

Greg Dunn (08:45):
Under the criminal process, you have remedies, and you have remedies under the Canadian Charter of Rights and Freedoms. You can seek to have the evidence excluded, the case thrown out. You can get costs under the Charter of Rights and Freedoms. You don't have the same access to charter rights under administrative law.

Greg Dunn (09:06):
Administrative law has what they call charter values that apply to it, but the standard that you have to prove under administrative law is that the officer acted egregiously. It's hardly ever proven. It's very difficult to prove the officer went to that particular level.

Rob Breakenridge (09:25):
I would think so, yeah.

Greg Dunn (09:25):
So what you've done is you've gutted the ability of defense lawyers to protect their clients on the basis of the state overstepping their powers.

Greg Dunn (09:37):
So it has really two residual effects. One of them is as a defense lawyer, I have a client who something had happened poorly to them at the side of the road or he was pulled over for no particular reason or because of an ethnic persuasion, and I'm unable to defend them now based upon those particular arguments because administrative law doesn't afford you that tool in the toolbox.

Greg Dunn (10:00):
But there's a larger systemic issue. And if you think about it, I often say defense lawyers, I say we do two things. We protect the factually innocent or defend the factually innocent, and we act as a check on state power. And if you go back to grade school, there's those three levels of government. You've got the legislative and the executive and you've got the judicial. And we are the judicial arm of the government. And criminal lawyers by what they do day in and day out are almost a watchdog on the power of the state.

Greg Dunn (10:36):
And if you decriminalize impaired driving, what you've done is you've taken a whole range of interaction between the police and the citizen and you've said, "Hey, the charter doesn't apply. Don't worry about adhering to proper grounds of stopping, proper grounds of search and seizure, proper grounds of arrest. It's a free for all. You're only getting a ticket, don't worry about it."

Greg Dunn (11:00):
And so from a defense lawyer perspective, it's almost like the perfect storm in which police officers are now given basically a blank check to act how they want to act without any sort of judicial oversight.

Rob Breakenridge (11:15):
Yeah, and I think that's a good explanation of it. So this is more or less how it works in BC. Now, let's talk about Alberta because a couple of years ago, I think this was 2018, this was being studied by the government of the day. They eventually opted against making these changes. But we do understand from what we've been hearing, this is something being looked at now. So from government's perspective, I mean, is this just about trying to save money in the legal system? Is it about the potential revenue from writing tickets and impounding vehicles instead of prosecuting cases? Why would they look at this?

Greg Dunn (11:49):
Right. So I mean, ultimately the push for decriminalization has come from, I would say the policy advisers in the justice department provincially. It's not necessarily [inaudible 00:12:04], and it's not necessarily the politicians. Because, let's call them the bureaucrats, the justice bureaucrats that want to put this policy into effect, have tried to do so probably over the last 15 years. And it's been resisted by a number of PC governments and was ultimately not instituted by the NDP.

Greg Dunn (12:24):
But it is due to a myriad of reasons. One of them of course, and the main one, is cost. Every time you litigate, it's expensive. I mean, I run a trial, I need a judge, and they're not cheap. I need a prosecutor. They're cheaper than a judge, but still probably not that cheap. And defense lawyers are not cheap at all.

Greg Dunn (12:42):
So there's a lot of money that is invested in terms of running these things through the courts. You also need police officers to show up. You need to pay the gas bill and the lights for the courthouse, so it's extremely expensive.

Greg Dunn (12:56):
The other thing is that there was some studies that were done, and I had the report, but there was some studies that were done in terms of revenue that was generated under the BC model. And one statistician said that there was up to $300 million of revenue that they got in for these, what they call IRPs, which are basically roadside suspensions.

Rob Breakenridge (13:19):
Yeah, it's immediate roadside prohibition.

Greg Dunn (13:20):
Prohibitions. So there's a ton of money that they're collecting because what they do is they say, "Okay, look, we're going to not charge you as impaired, but we're going to take your vehicle. You're going to have an impound fee." You have that.

Rob Breakenridge (13:30):
You got to take a course too, apparently.

Greg Dunn (13:33):
You got to take a course.

Rob Breakenridge (13:33):
And pay a fine.

Greg Dunn (13:34):
A reinstatement fee, and all these fees, they're collecting huge amounts of money. So at this juncture for this government with a focus on being fiscally responsible, which they should be. And I mean, obviously, no one's taking issue with the fact that a government needs to be fiscally responsible, but it's a really attractive option when you look at saying, "Hey, listen, not only are we going to save resources, we're going to save prosecutors. We're going to save judges. We're going to have a real cash cow here. We're going to get millions of dollars of money in."

Greg Dunn (14:10):
And ultimately, though, the question is is it worth it in terms of the safety and lives of Albertans on one thong, and on the other thong, whether it's worth the abrogation of civil liberties of the citizens of Alberta.

Rob Breakenridge (14:26):
Yeah, it's interesting too because, I mean, nationally, right across the country, rates of impaired driving, impaired driving related crashes, fatalities, they're all down. So it can be challenging to go in and say, "Well, this jurisdiction deals with it this way. This jurisdiction deals with that way." I mean, I don't know, can we make any conclusions about whether this works or whether BC has had any success from this?

Greg Dunn (14:49):
Well, the problem with BC is they won't release their raw data. So the justice department in BC will release their conclusions and their numbers, but they won't release the raw data that underlie those conclusions and data. So we're unable really to take a look at it to see whether it's working.

Greg Dunn (15:07):
Impaired driving, as you said, is down across the country, across the country. It's down in Alberta, it's down in BC, it's down in all the other provinces. Impaired driving deaths are down. Now, the question is why? Now, is it due to BC implementing this new administrative system? Probably not. It looks like the statistics say that impaired driving deaths are down largely to innovations in vehicle safety.

Greg Dunn (15:36):
If you look at the graphs, the addition of airbags on the side of the doors, side airbags, have really caused a drop, a precipitous drop, in terms of impaired driving deaths. So without more information, I can't certainly say that there's any sort of degree of reference between the BC model, the administrative model, and saving people's lives, other than it does create a revenue stream.

Rob Breakenridge (16:05):
Yeah. And where this is at, I mean, it sounds as though this is back within the Department of Justice being discussed, being considered, and maybe at some point the justice minister will have something to say. Obviously, they'll have to make a decision at some point. But I mean, that's why it's important to talk about these issues now and not after the fact, so people understand what's at stake here.

Greg Dunn (16:25):
Well, we've reached out to Minister Schweitzer with respect to the issue. And we haven't heard back, but we're hopeful that we will, and we'll be able to have a meeting with him to discuss some of the other issues and the other perspectives on decriminalizing it.

Greg Dunn (16:42):
I mean, I think if you get a relatively new minister, and he's listening to one set of drums, and that set of drums are going to be the guys in his department and the guys that are advising him from the Department of Justice. But I think it's important to talk to all stakeholders, to talk to defense lawyers, to talk to victim advocates, and to talk to police officers as well to see whether such a move is in the direction that we want to go.

Rob Breakenridge (17:15):
All right. Well, a lot of important information for people to keep in mind because I think we're going to be hearing more about this. More at dunnandassociates.ca. Greg Dunn, thank you so much for coming in here today. Really appreciate that.

Greg Dunn (17:24):
Thanks, Rob. Thanks.

Rob Breakenridge (17:24):
All right. That is a Calgary based criminal defense attorney, Greg Dunn with Dunn and Associates. My name is Rob Breakenridge. We are back with more right after this.

Speaker 2 (17:32):
Afternoons with Rob Breakenridge starting at 12:30 on News Talk 770, Calgary.