Alberta's Administrative Penalties Act: Justice More Expedient, or Justice Denied?

 In July 2020, Alberta passed a bill which makes sweeping changes to what it euphemistically calls "Administrative Penalties" (basically anything you might get a ticket for) and the way that they are handled. Bill 21, The Administrative Penalties Act, dramatically changes the scope of what police or other enforcement officials can do when they hand out tickets.  

First of all, a ticket is no longer a "summons" to appear in court.  It becomes an "administrative penalty", which is extremely broadly defined:  

So, basically, this is just about anything up to, but not including being imprisoned. When you start considering that can include impounding your vehicle, seizure of property, imposing restrictions on your driver's license, etc., that's a lot of potential consequences. 

This legislation is a lot more slippery than merely giving police enormous powers over your life. 

Restricted Challenge Framework

In itself, moving to an "administrative penalty" model isn't entirely bad news.  I wouldn't be writing this if all the government had done was move to this model.  However, what they have also done is create a regime that severely limits the parameters within which you can challenge the application of a penalty.  Allow me to illustrate. 

First, you have to decide that you're going to challenge the ticket issued at roadside within 7 days of receiving it:  

There are two points here:  First, seven days is a very short timeframe for most people, and it doesn't say "7 business days", it says "7 days", so if you are issued a ticket on a weekend, you likely only have until the end of business on the following Friday to request a "review".  Second, you still have to pay the penalty itself, AND you also must pay whatever "fee" the government decides you must pay in order to file a challenge.  

Remember the days of getting a traffic ticket, where all you had to do was show up at Traffic Court on the date?  Yeah - not so much now.  If you don't have the additional fee money available that week, too bad.  

From here it goes downhill fast.  

First of all, note the use of the language "satisfactory to the Minister" here. This does not reference to "The Regulation", but rather puts the decision firmly in the offices of the politician currently sitting as Minister of Justice.  This is a problem.  It means that we are now subject to a process that can be changed pretty much whenever the Minister happens to feel like it - without notice. 

The Review Process

The review process laid out in the legislation is even more troubling.  Mostly because the entire process appears to be stacked against the individual, placing the burden of proof on the accused and insulating both the government and the accusing peace officer from scrutiny.  

First, let me observe that there is absolutely no requirement here for the 'adjudicator' to have any experience with, or knowledge of, the law.  These people could be anyone from former judges (with actual experience with law) to hiring grandma off the street (whose idea of law comes from Judge Judy - if you're lucky).  Even if I presume that the government will at least provide basic training here, I find this deeply problematic simply because it's so damned arbitrary.  

But, it gets MUCH worse when we start looking at the rules of evidence.  Our courts have very well defined rules of evidence, and in fact you have a legal right to examine and challenge the evidence being used against you.  The rules of evidence being used here are designed to tie one or both of your arms behind your back.  Consider the following:  

Notice that S12(2) basically says "well, unless the regulation requires it, there is no obligation to provide YOU (the defendant) with the records being used to accuse you".  Think about this - at this point, the police officer could have written any old thing in their report they want to, and there's NOTHING you can say about it because you haven't even seen it. You could be accused of belligerence, or smelling of alcohol, or whatever that might prejudice the adjudicator, and you won't even know what's been said.  

Section 13 does say that you are allowed to submit arguments in your defence, so there's that, I suppose. 

 

Sections 14 - 18 tie your hands behind your back in a much more substantial way though.  Let's start with Section 14, which reads as follows: 

That's right - anything the officer records in their notes is assumed to be correct - in fact, it goes so far as to be equivalent to sworn testimony in a court.  WITHOUT the officer ever having sworn an oath, and further without you necessarily having any right whatsoever to even see those records and examine them. 

I don't know about you, but when the officer at roadside has the power to seize my vehicle, ban me from driving, and other penalties that could substantially impact both my life and my ability to earn a living, I'd sure like to be able to review, and challenge, the content of that officer's notes or testimony.  This assumes that law enforcement officials simply never lie or impose their biases at roadside ... I consider this a very dangerous assumption.  

Section 15 ties your hands even further. 21 days is a very short time period to retain counsel and assemble any kind of meaningful defence.  (That's 3 weeks, and less than that if the adjudicator's calendar has an opening sooner than that from the day you file notice. This appears to be specifically designed to prevent most people from retaining counsel and putting together the pieces needed for a defence.  

Section 16(3) is curious indeed.  While talking about the means and mediums that may be used for conducting reviews, the government chose to slip in S16(3), which further constrains your ability to challenge the evidence being used against you.  Again, in combination with S14, this further insulates peace officers from challenge.  

Section 17 further constrains your right to submit materials and arguments under S13.  The Director can place all sorts of rules and limits on your submissions, while there are effectively NO limits placed on peace officers' notes and documentation.  The Director can decide you can only submit 1 page of handwritten material to argue your case, and that's all you're allowed.  They can forbid recordings of what happened at roadside, and you can't say a thing about it. 

Section 18 is even more troubling for a number of reasons.  First, it places the burden of proof on the accused in S18(1).  This is an inversion of a fundamental principle of law and justice in Canada.  In our courts, the burden of proof lies primarily with the accuser.  Here, what has happened is the government has basically anointed peace officers as "never telling lies", and then making it your job to prove that they are in the wrong - with all of the evidentiary rules firmly stacked against you.   But it gets worse as you read S18... 

First of all, it allows the adjudicator to arbitrarily accept or ignore evidence before them in S18(3).  In other words, you might provide exculpatory evidence that clearly shows the peace officer's ticket was unjustified, and the adjudicator is NOT required to give it any weight at all.  Remember S14, which made a peace officer's notes effectively sworn testimony?  Well, nothing you provide is given that kind of standing. 

Then we hit S18(4), where the rules of evidence that bind court proceedings in Canada don't apply at all. No justification is provided for this, it's simply declared along with the other parts of this act which strip a defendant of any significant right to defend themselves from unjust accusations. So, the "rules of evidence" are, more or less, whatever the adjudicator decides they want them to be (excepting, of course, that the peace officer's notes are considered to be "sworn testimony").  

Appealing To The Courts

Section 24 basically says "You have no right to appeal to the courts".  If the arbitrary rules of evidence involved weren't bad enough, stripping people of the right to appeal these matters to the courts basically creates a separate (in)justice system that can ignore just about every standard of law at will, and unless you have a spare million or so lying about to launch a constitutional challenge of this legislation, you're basically hooped.  

Conclusions

This legislation is hugely problematic from where I sit, and it suffers from numerous flaws that render it fundamentally unjust from the outset.  

First of all, treating a peace officer's notes or other documents as sworn testimony while failing to provide a reasonable opportunity for it to be challenged and examined before the adjudication panel is deeply problematic. It presupposes that peace officers have no biases, don't have "bad days" or lapses of good judgment.  It also creates a very dangerous situation where the officer can simply make things up ("Oh, the car had a broken taillight"), and there's precious little that a defendant can do to challenge that.  

Second, it arguably violates S7 and S8 of The Charter.  I believe that the following elements of the adjudication process violate the principles of fundamental justice stipulated in S7:  

S18(1) - Placing the burden of proof on the accused is an inversion of a tradition that has been part of Canadian justice going back to English Common Law.  Inverting that places an inappropriate burden on the accused. (Principles violated:  Arbitrariness, Vagueness: why invert something so basic to our legal processes?) 

S14 - Assuming that a peace officer's records are equivalent to sworn testimony, but denying any such status to records and submissions of the accused imbalances the system against the individual, further violating another principle of fundamental justice. (Principles violated:  Arbitrariness, Overbreadth: Arbitrary because it's making assumptions that are not reasonable; Overbreadth because the government appears to be doing so to insulate itself from being challenged)

S16(3) - Removing the right to cross-examine submissions may seem like a procedural efficiency, but the reality is that doing so removes a person's right to point out when a peace officer is misrepresenting things, or to be heard when their experience of the events as described differs from that of the peace officer's.  (Principles violated: Right to make a full answer and defence)

The review process as a whole is clearly designed to insulate the agents of the state from challenge, and further enables those agents to hobble a person's ability to defend themselves with rules that could be seen as arbitrary and capricious. The timelines being put in place for challenges are unreasonable for any person seeking to access legal counsel, or even to reasonably put together their own records to defend themselves.  (Principles violated: Arbitrariness, Overbreadth, Right to make a full answer and defence)

By removing the right to appeal a decision to the courts in S24 is arguably inappropriate.  These administrative penalties can have significant repercussions on a person and their ability to earn a living. To prevent the decisions of the adjudication process from being reviewed in a court of law is also a violation of principles of justice in itself. (Principles violated:  Arbitrariness, Right to make a full answer and defence)

Note:  I have used the descriptions of Fundamental Justice from the Wikipedia Article on Section 7 for simplicity.  More detailed legal examinations of the matter from sources like Osgoode Hall Law School, and Justice Canada's analysis of Section 7 in their Charterpedia seem to generally agree with what is in Wikipedia at the time of writing. 

The government has attempted to sidestep this by writing this as "an administrative act", but at the end of the day, they are handing out tickets as punishment for infractions.  Surely that constitutes an administration of justice.  

In their rush to achieve a "more expedient" system for so-called "administrative" issues, the UCP government has created a situation which substantially grants the state unchallenged rights to levy penalties, and no opportunity for individual citizens to have these penalties reviewed in a reasonable, just, and objective manner.  They may have been trying for "fast food justice", but what they have created is injustice.