Canadian Lawyer

March 2013

The most widely read magazine for Canadian lawyers

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Are Alberta���s tough drunk driving laws impairing justice? C algary���s police chief Rick Hanson likes Alberta���s tough new drinking and driving legislation. He points to what he hopes will be a growing deterrent effect. ���The early results are, we���re seeing fewer people impaired behind the wheel,��� he says. Under the legislation drivers charged with impaired driving have their licences immediately suspended and they remain suspended until the matter is resolved in court. The problem with that, says Edmonton lawyer Fred Kozak, is getting into court to have a not-guilty plea heard can take months in big centres and up to a year-and-a-half in some smaller communities. That means those who decide to fight a charge can effectively have their licence suspended for longer than those who offer a quick guilty plea. The system, says Kozak, ���brings significant coercive pressure on people to plead guilty.��� In Kozak���s view the situation flies in the face of s. 11(d) Charter guarantees of the presumption of innocence and also intrudes on the exclusive federal power to make criminal law. That is why Kozak is bringing a Constitutional challenge, which he hopes to see before the courts sometime in late spring or early summer. Kozak does not quibble with the argument that drinking and driving impaired is wrong. ���It���s a serious social issue and it warrants a severe penalty for those convicted,��� says Kozak. ���But not for those who have only been charged.��� Alberta���s Minister of Transportation Ric McIver acknowledges the criticism but believes the legislation as written will stand up to any constitutional challenge. He says it is all about ���changing behaviours��� and meeting his primary goal ���to make Alberta���s roads and highways safer for everyone.��� Alberta���s Justice Minister Jonathan Denis has definitely carved out a ���tough cop��� image on impaired driving. He has pushed for tighter drunk driving laws and tougher penalties. ���I am saddened by lenient sentences for drunk drivers,��� he has said in the past. D���Arcy Depoe, president of Alberta���s Criminal Trial Lawyers��� Association, calls the legislation, with its imposition of automatic and immediate licence suspension, ���profoundly unfair.��� He says even accused persons who might be in a position to defend themselves against a charge are pleading guilty. Depoe insists he is not quarrelling with the need to prosecute impaired drivers ���but you don���t do it by sacrificing basic constitutional rights.��� Danusia Bourdon is a Calgary lawyer who deals exclusively with impaired driving cases. ���I���m against the [new] law,��� she says unequivocally. ���In my opinion we are getting people pleading guilty simply because they have no other option.��� They can���t wait, Bourdon says, for the court process to slowly unfold. She says suspending a driver���s licence on arrest amounts to a situation ���where we are going to presume you���re guilty until you prove your innocence. As a Canadian I find that offensive.��� The Alberta courts have agreed to hear an application to put on hold a handful of impaired charges until the constitutional issues are addressed, but at this writing no decision had been delivered. Whatever the outcome of the stay applications, Kozak���s larger constitutional challenge of the legislation will proceed. Its outcome will be watched with intense interest not only in Alberta but across the country. ��� GE News Feed Complex Litigation Matters Cynthia Kuehl is a panelist at the Law Society of Upper Canada���s Complex Litigation Matters program to be held March 28, 2013. Together with other panel members, Cynthia will discuss Summary Judgment Update and Hybrid Procedures. http://lerners.ca/news/257/ Canadian Civil Liberties Association We are pleased to feature Canadian Civil Liberties Association on our Facebook page for the month of March. CCLA is a national organization which promotes the respect for, and recognition of fundamental human rights and civil liberties for all Canadians. This organization is very near and dear to Appellate Lawyer, Jasmine Akbarali. facebook.com/LernersLLP Lerners London of���ce voted #1 Law Firm! In a recent London Community News readership survey, Lerners was chosen as the best law ���rm in London. Thank you to all our clients and members of the community who identi���ed us their number one choice of law ���rm. We can���t think of a more appealing verdict! http://lerners.ca/news/258/ www.CANADIAN www.lerners.ca L a w ye r m a g . c o m March 2013 11

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