Charter challenges possible against impending traffic ticket system

Emily Parkin

‘There used to be an opportunity to explain it to a prosecutor there’s a reason why you were speeding or that your record’s otherwise clean’

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A new system to process motorist violations that eliminates traffic court could be contested constitutionally, say lawyers experienced in fighting such cases.

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Beginning Feb. 1, those who choose to contest traffic tickets will go through an online process involving an adjudicator rather than the current traffic court, and pay up to $150 to do so.

It follows similar changes to how the province deals with impaired-driving charges that took effect Dec. 1, 2020.

They’ll also have a reduced window of seven days to file a challenge and face a greater onus to prove their innocence, say those who defend accused drivers.

The lawyers say motorists could argue they’ve been stripped of due process and fight that constitutionally.

“The entire framework for eliminating traffic court and implementing an online dispute system through an adjudicator could be challenged if it is deemed to be in violation of the Constitution,” said Jeff Seymour, a lawyer and partner of the defence firm X-Copper.

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“I do expect it to be challenged given that individuals alleged to be in violation of Alberta traffic laws will no longer have the option of a trial in order to face their accuser and have evidence against them tested in court.”

He said challenges to the earlier phase of the province’s SafeRoads Alberta program focused on impaired-driving charges suggest the new rules dealing with all other traffic offences could also be contested.

“I believe there will be a path for those that disagree with the adjudicators’ decision in order to have the matter heard in court, and therefore they will have their day in court, albeit at a higher level of court — but those details are unknown to me at this point in time,” he said.

The province is implementing the system to break what it says is court gridlock, while also freeing up police resources and making the process more accessible to Albertans by moving more of it online, including the use of e-tickets.

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Officials say it will process about two million traffic tickets a year.

Traffic whizzes by the cable barrier between lanes on Deerfoot Trail.
Traffic whizzes by the cable barrier between lanes on Deerfoot Trail. Photo by Mike Drew /Postmedia

But while critics such as Seymour say there are good reasons to streamline the system, they say it greatly reduces defendants’ rights and removes the ability to fight fines that should genuinely be either reduced or dismissed.

They note adjudicators won’t be able to reduce fines or suspension durations, only cancel them.

“The big winners are the insurance companies, they’re going to see speeding (convictions more often) and adjust their premiums accordingly,” he said.

A Calgary lawyer said B.C.’s system of processing impaired-driving charges, largely adopted by Alberta 13 months ago, has been challenged constitutionally.

While the country’s Supreme Court upheld B.C.’s law, Tim Foster of the Roadlawyers agency said it ordered it be made more amenable to defendants’ rights.

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Foster said similar challenges can be made to Alberta’s incoming laws covering other driving offences, especially after the courts here ruled against police agencies’ lax maintenance of breath testing devices.

“Since then, a lot of the (impaired) cases have been cancelled, we began winning them in front of adjudicators,” he said.

But in response, he said the province has moved the legal goalposts to shield it from challenges, something he says it’d likely do to fend off challenges to its Feb. 1 changes.

Both B.C. and Alberta say the changes to impaired-driving laws are saving lives and have freed up court capacity, something the UCP government insists will be repeated after Feb. 1.

But Seymour said the approach will make it harder for drivers who have valid arguments to mitigate their penalties.

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“There used to be an opportunity to explain it to a prosecutor — there’s a reason why you were speeding or that your record’s otherwise clean,” he said.

No similar laws exist in Ontario, Quebec or New York state, where his X-Copper agency also operates, he added.

While he said there’ll be fewer clients for his services, that expertise will still be needed because a process to challenge fines still exists.

He said his agency will likely absorb the newly imposed $50 to $150 cost of launching a challenge.

“We’ll have to build that in and take a haircut,” said Seymour.

The Calgary Police Service declined to comment on the new system, only saying it’s working with the province to implement it, partly through a training program.

The provincial government has also refrained from commenting, with a spokesman for Alberta Transportation saying only that it’s part of an ongoing upgrade and that it’ll be making an announcement “soon.”

[email protected]

Twitter: @BillKaufmannjrn

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