Alberta hits brakes on traffic court changes

Law360 Canada (January 28, 2022, 1:01 PM EST) -- Alberta has paused its plans to shake up traffic court, proposals which have led to an outcry by lawyers in the province that the changes would ignore due process and create barriers for people who may want to challenge the tickets they have received.

The changes, which were targeted for implementation on Feb. 1 as part of phase two of the SafeRoads Alberta initiative and outlined in a government training document, would have reduced the length of time drivers had to challenge tickets to seven days and would charge a fee of up to $150 to do so, as well as moving many appearances in front of an online adjudicator.

But in a statement released Jan. 26, Minister of Transportation Rajan Sawhney and Acting Minister of Justice and solicitor general Sonya Savage said the phase two rollout would be put on hold for up to four months as the province consults with Albertans. The two ministers also said the training document “did not reflect what the program is.”

“We have clearly heard from Albertans who shared their thoughts with us on traffic safety in this province. We will listen to what Albertans have to say, and we will share the benefits of these changes with them,” the statement said. “Phase two of SafeRoads will free up police and court resources to address more serious family, civil and criminal cases while still allowing individuals to dispute their offences, have their cases heard and be granted extra time to pay if they need it.”

The overhaul of traffic court is part of a larger justice transformation initiative brought in as part of Bill 21, the Provincial Administrative Penalties Act. The first phase, which came into effect in December 2020, created an immediate roadside sanction program for impaired drivers that gave police officers the ability to hand out penalties during traffic stops. Phase three of the plan would expand the administrative adjudication process so that it could be used by any regulated area of provincial jurisdiction.

But the phase two proposals raised the ire of many in the Alberta legal community, which raised concerns about its constitutionality and felt that many people would simply pay the fines rather than fight the charges against them, even if their concerns were legitimate. Jordan Stuffco of Stuffco Law, past president of the Criminal Trial Lawyers’ Association of Alberta, said the proposed changes would “create a process where an individual was guilty unless able to prove otherwise.”

“And tied into that is the inability to cross-examine or even question the officer who gave out the ticket. So, you have a presumption of guilt system with the inability to even examine a witness,” he said. “And the fee means you have to pay money to prove that you are innocent. My experience has shown me that a significant number of people in traffic court are people who struggle working day-to-day, with a lot of young people who have encountered a ticket. So, the abridgment of time in conjunction with a filing fee is sandbagging participants from trying to do something with their ticket.”

Sarah Miller of JSS Barristers said her biggest concern about the proposals was the issue of access to justice.
“Really what the government is saying here is that there is a huge burden on the system, so we are creating a barrier so fewer people can access it,” she said. “Certainly, the government is going to see a higher rate of straight conviction and pay the fine, so from their perspective the program will probably work and reduce court resources — but these are significant fines that are non-refundable, and it just seems so wrong to create this narrower window of time to be able to challenge your ticket.”

Stuffco said the proposals could “absolutely” lead to Charter challenges if implemented.

“It discriminates against vulnerable people and rejects the presumption of innocence,” he said. “The objective it seeks to address is to minimize extraneous court resources for minor infractions, but the harm caused outweighs that because they have curtailed the ability to be heard far too much — and to have to pay to be heard is an affront.”

But Albertans “will always have the right to challenge tickets and due process under the law,” the government statement said.

“Albertans will always have the ability to dispute fines or make their payments quickly and efficiently,” the statement said. “Our government is committed to ensuring that we fix the very real problem facing our justice system. We need our police to fight crime, not sit in courtrooms, and we need our courts to prosecute real criminals.”

The conflict over traffic court comes at the same time Justice Minister and Solicitor General Kaycee Madu, who is currently on a leave of absence, faces an investigation into a phone call he made to Edmonton police Chief Dale McFee after receiving a traffic ticket. Retired Court of Queen’s Bench of Alberta Justice Adèle Kent has been appointed to investigate the call to see whether the call constituted interference or an attempt to interfere with the administration of justice.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.