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Decriminalization of impaired driving a ‘road to tyranny’

British Columbia’s effective decriminalization of impaired driving has not turned into the road-safety nirvana some assumed it would, Calgary criminal lawyer Greg Dunn tells AdvocateDaily.com.

The province, wishing to reduce the costs of impaired-driving enforcement, devised a provincial administrative system in 2010 whereby individuals who were stopped for drunk driving would not be charged criminally, but administratively under provincial powers of licensing and use of roads, says Dunn, principal of Dunn & Associates Criminal Defence Lawyers, adding those provincial penalties were much easier to enforce.

“What they would do was, as soon as you were charged, they would take your licence away. In addition, they’d give you these fines, impound your vehicle and you’d pay an exorbitant amount to get it back out,” he says. “They said, 'Because we’re getting all this stuff administratively, we’re just not going to charge the people criminally.'”

Dunn says it may seem counter-intuitive that a criminal lawyer is saying not to decriminalize something, but there are a number of good reasons to support the argument.

1) “Criminal defence lawyers are people as well. I have two young daughters. We want the roads to be safe as much as anyone else,” he says. 

“Decriminalization sends the wrong message to people in society — you’re telling them it’s no longer against the law to drive drunk. Even if you have all these administrative sanctions, the imposition of criminal charges has a tremendous deterrent effect. By simply saying it’s now a traffic ticket, albeit an expensive one, does not have the same deterrent value.”

2) The statistics don’t support the policy, according to Dunn and other defence lawyers. While the B.C. government and even Mothers Against Drunk Driving have said impaired driving is going down as a result of decriminalization, a group of defence lawyers commissioned an independent analysis of the figures that tells a different story. The 2018 report found the incidence of impaired driving potentially increased after decriminalization, Dunn says.

Furthermore, "it has now become difficult to accurately verify the incidents of impaired driving in British Columbia largely due to the fact that the province will no longer release the raw data on their statistical analysis, which is somewhat suspect,” he adds.

3) While the stakes are higher when you go to trial, the criminal justice system affords a number of tremendous protections of people’s civil rights, civil liberties through the enforcement of due process, Dunn says.

“With an administrative sanction, you lose the presumption of innocence. These sanctions are given out at the side of the road, at the discretion of the police,” he says. “Police officers go from simply being enforcement to jury, judge and sentencer.

"In addition, you don’t get all the safeguards of the Charter — you don’t get to challenge the charge based on illegal stop or illegal detention. The checks and balances that are really necessary in the functioning of our liberal democracy are lost.”

4) “The amount of revenue they generate from these fines and car seizures is enormous,” Dunn says. “Certainly the implication is that it’s a cash grab. Or at least that it suits a number of purposes — they don’t have to spend money on prosecutors or judges, and they make money on the fine.”

B.C. is unique in completely going down the road of decriminalization by way of a directive to police not to charge people criminally, he says, adding many other provinces do have administrative or roadside sanctions, but they use them to supplement criminal charges, not replace them.

Last year, Alberta was considering following B.C.’s lead, but has now pulled back, Dunn says.

“There was some degree of public resistance. There were victim advocate people who came out and said 'don’t do it, we think it sends the wrong message,'” he says.

Dunn points to an important example of how the presumption of innocence suffers when impaired driving is dealt with by a ticket instead of a criminal charge:

“In the Criminal Code, if you fail to give police a sample, they basically charge you with impaired driving — it’s called failure to provide a sample," he says. "The penalties are the same as for impaired driving.

"But with a failure charge under the Criminal Code, you’re presumed innocent until proven guilty, and have a chance to go in front of a judge and say, ‘I couldn’t give a sample because of a heart condition or respiratory condition or anxiety.’”

The judge may or may not believe you, but Dunn says the opportunity to put forward a defence is not afforded to people under administrative sanctions.

“That’s why administrative sanctions are dangerous and not the nirvana people think they are, because innocent people get caught up," he says.

"Are they cheaper? You bet. More efficient? Sure. Do they take fewer resources? Absolutely. But at what price?

"Do we start putting people in jail for assaults and threats and more serious offences because it’s administratively expedient? That’s the road to tyranny.” 

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