Guilty until Proven Innocent: Who Pays the Price of Judicial Reform?
Guilty until proven innocent is the new reality for Alberta drivers. Since the implementation of the Justice Transformation Initiative in 2021, Alberta drivers have been denied their day in court. Instead, they are deemed guilty until proven innocent, and if they want to challenge their traffic ticket, they must pay a non-refundable fee to do so within a 7 day period.
The Justice Transformation Initiative (JTI) was brought into effect by Bill 21, the Provincial Administrative Penalties Act, which received Royal Assent on July 23, 2020. The new regime is meant to divert nearly two million traffic tickets from the courtroom, therefore allowing the province to reassign the resources that would have gone to addressing these matters, to more “serious justice matters”.
While the JTI has admirable goals of reducing impaired driving-related offences under the new Immediate Roadside Sanctions (IRS) system, it also brings in sweeping changes to access to justice and procedural fairness. It infringes rights that are protected under part of the Constitution: the Charter of Rights and Freedoms.
The erosion of our Charter rights
Let me explain: in phase one of the JTI, the province created a new adjudication branch. Its mandate is to resolve impaired driving-related contraventions of the Traffic Safety Act, by streamlining traffic matters out of the courts, away from judges, lawyers and the protection of the Charter. According to Charlie Pester of Pointts Calgary, these changes are “an attempt to take away the Charter of Rights from the public in Alberta”.
Previously, if a driver failed a roadside breath test, they were charged with impaired driving under the Criminal Code and they would have their ‘day in court’. This gave them the chance to hire a lawyer or advocate for themselves, including advancing Charter applications if their Charter rights were infringed in any way.
Unfortunately, the new JTI regime strips this from Albertans. The JTI regime requires individuals to pay a non-refundable fee of $150, within 7 days of the ticket being issued, thereby costing Albertans even more money to advocate for themselves. Pester describes the JTI regime as having “no court, no cross-examination, no witnesses. This is simply: if you're charged, you have to prove you didn't do it and you have to pay more money to do that."
Phase two of the JTI was set to implement expanded jurisdiction of the adjudication branch that would address all offences within the Traffic Safety Act - not just impaired driving charges - essentially closing traffic courts down.
Since phase one, the JTI system has been utilized for the new impaired driving sanctions under the IRS system. It isn’t that the JTI regime is conducted through an online system that makes it problematic, but rather that the system declares you guilty until you can pay to prove you are innocent.
Instead of labeling everyone guilty until proven innocent, the province ought to be making access to justice equitable. Despite the assurance that the JTI would be a “fair” system, it is an unfair approach to streamlining court processes because it disproportionately impacts people who already face the most barriers.
Who bears the burden when everyone is presumptively guilty until proven innocent?
According to Sarah Miller, an associate at JSS Barristers, this new system is “removing access to justice” and that denying “people free access to the traffic court system impacts procedural fairness”.
This means that by removing free access to the traffic court system, marginalized groups such as low income households, single parent households, minorities, Indigenous peoples, and students, will bear the burden of this new system. This is not justice. It certainly looks like a bully system with a cash-cow mandate - punish everyone and charge them extra money to dispute it. These kinds of potential abuses are why procedural fairness is constitutionally protected. As Sarah Miller stated, “this is what will drive those constitutional challenges and judicial review - on the ability to have procedural fairness”.
Although the JTI regime was supposed to be expanded to all traffic offences on February 1, 2022, the Alberta government has paused the implementation of phase two due to public criticisms. While this is a step in the right direction, phase one remains in effect, and there remains a significant issue for access to justice and procedural fairness for drivers ticketed under the new regime.
When procedural fairness is lost for everyone, those who are already disadvantaged bear the brunt of the burden. While traffic safety might not seem like it changes lives, when people have offences to their name they lose money, reputation, the chance to drive to work, and so on. When compounded, this turns into lost opportunities to work, have child custody, and so much more.
The fact remains that the JTI regime will disproportionately affect marginalized groups. While there is no dispute that the justice system needs reform, let's make sure the changes we make reduce inequities, rather than making them worse.
Until next time,
 Alberta Government, “Making Alberta Roads Safer” (2022), online: Making Alberta Roads Safer” <https://www.alberta.ca/making-alberta-roads-safer.aspx>.
 Alberta, Legislative Assembly of Alberta, Bill 21: Provincial Administrative Penalties Act, Legislature 30, Session 2, online: <https://www.assembly.ab.ca/assembly-business/bills/bill?billinfoid=11851&from=bills>.
 Alberta Government, “Provincial Administrative Penalties Act Fact Sheet” (October 15, 2020), online (pdf): Alberta Government <https://www.alberta.ca/assets/documents/trans-fact-sheet-provincial-administrative-penalties-act.pdf>.
 Supra note 1.
 Adam Toy, “Upcoming Changes to Alberta Traffic Courts ‘Removing Access to Justice’: critics”, (January 6, 2022), online: Global News <https://globalnews.ca/news/8494169/alberta-traffic-courts-changes-justice-access/>.
 Note: Under the new regime, if a driver blows between 0.05 and 0.079 - which is lower than the limit within the Criminal Code of 0.080, the driver will be issued a Notice of Administrative Penalty under section 88.03 of the Traffic Safety Act, through the Immediate Roadside Sanctions (IRS) Program. If this is the driver’s first offence, they are issued an immediate 3-day driver’s license suspension, a 3-day vehicle seizure, and a $300 fine with a 20% victim fine surcharge. See: Alberta Government, “Immediate Roadside Sanctions: IRS WARN Program (2022), online: Alberta Government <https://www.alberta.ca/immediate-roadside-sanctions-irs-warn-program.aspx>.
 Jordan Kanygin, “Critics Slam Outrageous Changes to How Traffic Tickets are Handled and Disputed in Alberta” (January 6, 2022), online: CTV News Calgary <https://calgary.ctvnews.ca/critics-slam-outrageous-changes-to-how-traffic-tickets-are-handled-and-disputed-in-alberta-1.5730912>.
 “Bill 21: Provincial Administrative Penalties Act”, 2nd reading, Legislative Assembly of Alberta, 30-2, (June 8, 2020) at 1181 (Hon Sonya Savage), online: Legislative Assembly of Alberta <https://docs.assembly.ab.ca/LADDAR_files/docs/hansards/han/legislature_30/session_2/20200608_1930_01_han.pdf#page=17>.
 Supra note 5.
 Supra note G.
 Supra note 5.
 Stacey Hein, “Alberta Pauses Traffic Court Changes After Significant Public Criticism” (January 28, 2022), online: RBTN News <https://www.rtbn.ca/2022/01/28/alberta-pauses-traffic-court-changes-after-signifcant-public-critisim/>. Note: Thankfully, pausing phase two of the JTI also means that phase three will be delayed in its roll out. Phase three would have seen another expansion of the administrative adjudication process which could have been adopted and adapted for use by any regulated area under provincial jurisdiction.
Artwork from: Reimagining Justice Art Submissions | Vermont Law School online: <https://www.vermontlaw.edu/rj-art-submissions>.