Alberta's New Traffic Safety Amendment Act and Sivia v. British Columbia (Superintendent of Motor Vehicles)

On December 8, 2011, the Legislature of Alberta's Traffic Safety Amendment Act (the "TSAA") was given Royal Assent, and it will come into force upon Proclamation. This Act implements new measures to combat impaired driving in Alberta, and imposes tough new penalties for drivers found by police to have a blood-alcohol level of .05 or greater.

The key features of the TSAA are summarized in an FAQ prepared by Alberta's Ministry of Transportation and available here. In identifying impaired drivers, the TSAA places dramatically greater reliance upon roadside screening devices. Unlike the impaired driving provisions of the Criminal Code, the TSAA does not contemplate a "warn" or "fail" result from a roadside screening device followed by a more formal (and reliable) breathalyzer test at the police station. Rather, the consequences of the TSAA are imposed automatically as a result of the roadside testing. With respect to reintegrating drivers convicted of impaired driving, the TSAA contemplates an increased use of "ignition interlock devices".

The TSAA is modeled upon certain amendments to British Columbia's Motor Vehicle Act, R.S.B.C. 1996, c. 318, which have been in force since September 20, 2010. The key features of this B.C. legislation are found in ss. 215.41 to 215.51, which have been referred to as the "automatic roadside prohibition" or "ARP" regime.

The ARP regime was the subject of a partially-successful Constitutional challenge in the case of Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639, and it may be safely assumed that the TSAA will faces similar challenges in Alberta. The Constitutional issues raised by the ARP regime include division of powers issues, as well as individual rights protection issues.

The petitioners in Sivia argued that since the ARP regime creates new offences, new penalties, and new search and seizure mechanisms, it constituted criminal law, and as such fell within the exclusive jurisdiction of the federal Parliament under s. 91(27) of the Constitution Act, 1982. In response, the Provincial Crown argued that the ARP regime, in its "pith and substance" is legislation with respect to "property and civil rights" and as such falls within provincial jurisdiction conferred by s. 92(13). In rejecting this challenge, Justice Sigurdson applied the standard established by the Supreme Court of Canada in Chatterjee v. Ontario (Attorney General), 2009 SCC 19, where Justice Binnie stated:

The...