The B.C. Supreme Court struck a good balance in tossing part of the province’s new drinking-driving laws.
Justice Jon Sigurdson upheld the provisions that penalize people who blow between .05 and .08.
But he ruled that the use of the same approach to levy much tougher penalties for those who blow over .08 — the Criminal Code definition of impairment — is unconstitutional because it violates the Charter of Rights protection against “unreasonable search and seizure.”
The difference is the severity of the penalties. Sigurdson found that the Charter violation was tolerable in the case of the lesser penalties, given the importance of reducing impaired driving.
But the sanctions for blowing over .08 on a roadside screening device are much harsher. People have a right to a reasonable, independent appeal process when they face severe penalties, Sigurdson ruled, and the government has failed to provide one.
The fear that police officers effectively become judge and jury, without an adequate appeal process is well-founded.
It’s not a surprising ruling. The government’s aim — besides reducing impaired driving — was to save money by shifting impaired driving cases out of the courts.
Instead of laying a criminal charge, opening the door to a not guilty plea and trial, the government wanted to come up with similar penalties that could be imposed cheaply. Impaired cases make up about one-third of the caseload in provincial courts, in part because tougher penalties have given drivers a greater incentive to fight the charges.
The changes worked. The deaths linked to impaired driving fell 40 per cent in the year since the change was introduced, and the number of impaired driving charges fell by almost 75 per cent.
But the change, Sigurdson ruled, also violated British Columbians’ rights.
The courts have ruled that when a police officer has a “reasonable suspicion” a driver is impaired he could require a roadside breath test. But the test was simply an indicator that the driver should submit to a proper breathalyzer exam.
If he failed that, criminal charges could be laid. The driver would then have a chance to challenge the charge in court, cross-examine the officer and introduce evidence in his defence.
The provincial regulations skip all those steps. There is an appeal process, but it involves a strictly limited written appeal or hearing before a motor vehicle branch employee. Police don’t have to disclose evidence and there are no questions allowed.
Sigurdson found the province’s penalties for blowing over .08 were significant enough to require better safeguards to prevent innocent people from being wongly punished.
Drivers lose their licences for 90 days and face a $500 fine and the $880 cost of a remedial course. They are required to install ignition interlock devices once their licences are returned, which requires them to provide a clean breath sample before the car will start. Those cost more than $1,500. All in the total cost is more than $4,000, and some people, of course, lose their jobs. (Those who blow between .05 and .08 face a three-day suspension for a first offence, rising to seven days for a second infraction and 30 days for subsequent offences. They face fines of $200 to $400 and a $250 fee to have the licence reinstated. Repeat offenders also must take a course on drinking and driving, which costs $880, and have their cars impounded.)
The government has already been warned about problems with the regime. Earlier this year, a Supreme Court decision noted the appeal process was “fundamentally at odds with basic concepts of fairness and impartiality.”
There are easy fixes, at least going forward. The government can bring in a proper appeal process that respects Charter rights, or it can reduce the penalties.
It’s important to deter impaired driving. But it’s also important to respect basic principles — like innocence until proven guilty, and the right to a fair hearing before serious punishments are imposed.
Footnote: In the first 12 months, police imposed about 25,000 roadside suspensions. About 15,000 involved the more serious penalties for failing the roadside test or refusing to blow. It’s unclear whether drivers will challenge those penalties as a result of the ruling.
Friday, December 02, 2011
Thursday, December 01, 2011
The facts on the Attawapiskat housing and community crisis
I have been meaning to try and sort through the claims about funding for the Attawapiskat First Nations community. The northern community is a disgrace. The Conservative government have attempted to blame poor band management, pointing to $90 million in funding over the past five years.
Fortunately, I don't have to, because âpihtawikosisân lays out the facts here, with useful links to the source documents, including band financial reports.
Well worth a read.
Fortunately, I don't have to, because âpihtawikosisân lays out the facts here, with useful links to the source documents, including band financial reports.
Well worth a read.
Tuesday, November 29, 2011
Gloomy forecast sinks balanced budget plan
Amid all the gloom - and there was buckets of it - a glimmer of good news shone through Finance Minister Kevin Falcon’s quarterly report on the province’s finances and economy this week.
Mostly, the news was bad. The outlook for the economy is worse than it was three months ago, and it wasn’t great then. The deficit for the year is now forecast at a record $3.1 billion, $331 million worse than Falcon predicted in his last forecast. (Though the actual number is misleading, since about $1.6 billion reflects the one-time HST incentive to be repaid to the federal government .)
And things could get still worse in the coming months.
The good news is that Falcon is backing away from the ill-considered and potentially disastrous commitment to balance the budget by 2013-14.
Falcon still says that’s his goal. But he now acknowledges the target might be impossible.
British Columbians should heave a collective sigh of relief.
Sure, it’s embarrassing for the government to have to adjust its deficit target again and the whole notion of balanced budget laws is starting to look silly. The Liberals introduced a law making deficits illegal beginning in 2004. They amended it in 2009 to allow two years of deficits, then amended it again to allow two more years. Now, it looks like there’s a good chance of a new amendment, meaning the laws on balanced budgets changes about as often as the ministers responsible for Community Living B.C.
But clinging to the target would be destructive, with the goal of a balanced budget by 2013-14 achieveable only with deep spending cuts that would slash services and hurt the economy.
Falcon is in good company. Federal Finance Minister Jim Flaherty said last month the Harper government won’t likely balance its budget until 2016, two years later than the budget promised. The Ontario government expects to run deficits until 2017, and that target appears optimistic.
What’s happening is a return to traditional Keynesian economic theory. Governments should budget for surpluses when times are good and use money to pay down debt, the approach dictates.
But when there is a recession, governments should be prepared to run deficits both to maintain services and avoid weakening the economy further by reducing demand.
The real-world risk is that governments never quite get around to balancing the budget when times are good, meaning mounting debt, higher interest costs, an increasing burden for future generations and, as we’re seeing in the case of Greece, a nasty day of reckoning when lenders won’t extend more credit.
B.C. is a long way from that point; the province’s credit rating is good and the debt-to-GDP ratio moderate.
Falcon can’t be made to wear all the blame for the growing deficit. The Finance Ministry’s assumptions about economic growth were more moderate than the independent panel of economists that advises government. The problem is that things keep getting worse than expected.
The U.S. economy is stalled, Europe is in crisis and demand in China is falling. B.C.’s export-dependent economy is being badly hurt by reduced demand and falling commodity prices.
And falling financial markets have meant losses in ICBC’s investment portfolio, with the result that the government now forecasts the corporation won’t be able to deliver the budgeted $290 million in revenue.
At the same time, the government can be criticized for unrealistically low spending budgets, which have created crisis in the courts and Community Living B.C.
The expense budgets are even more out of whack for the next two years. Most ministries face two years of budget freezes; health spending is forecast to rise three per cent in each of the next two years, half the rate of the increase this year.
All of which makes the balanced budget target even more out of reach — and Falcon’s retreat even more welcome.
Footnote: Falcon delivered some additional bad news. The move from the HST back to the PST is more complicated, and going more slowly, than anticipated. It looks like the change will take a full 18 months, until March 31, 2013. That’s bad for homebuilders and other economic sectors, and for the Liberals.
Mostly, the news was bad. The outlook for the economy is worse than it was three months ago, and it wasn’t great then. The deficit for the year is now forecast at a record $3.1 billion, $331 million worse than Falcon predicted in his last forecast. (Though the actual number is misleading, since about $1.6 billion reflects the one-time HST incentive to be repaid to the federal government .)
And things could get still worse in the coming months.
The good news is that Falcon is backing away from the ill-considered and potentially disastrous commitment to balance the budget by 2013-14.
Falcon still says that’s his goal. But he now acknowledges the target might be impossible.
British Columbians should heave a collective sigh of relief.
Sure, it’s embarrassing for the government to have to adjust its deficit target again and the whole notion of balanced budget laws is starting to look silly. The Liberals introduced a law making deficits illegal beginning in 2004. They amended it in 2009 to allow two years of deficits, then amended it again to allow two more years. Now, it looks like there’s a good chance of a new amendment, meaning the laws on balanced budgets changes about as often as the ministers responsible for Community Living B.C.
But clinging to the target would be destructive, with the goal of a balanced budget by 2013-14 achieveable only with deep spending cuts that would slash services and hurt the economy.
Falcon is in good company. Federal Finance Minister Jim Flaherty said last month the Harper government won’t likely balance its budget until 2016, two years later than the budget promised. The Ontario government expects to run deficits until 2017, and that target appears optimistic.
What’s happening is a return to traditional Keynesian economic theory. Governments should budget for surpluses when times are good and use money to pay down debt, the approach dictates.
But when there is a recession, governments should be prepared to run deficits both to maintain services and avoid weakening the economy further by reducing demand.
The real-world risk is that governments never quite get around to balancing the budget when times are good, meaning mounting debt, higher interest costs, an increasing burden for future generations and, as we’re seeing in the case of Greece, a nasty day of reckoning when lenders won’t extend more credit.
B.C. is a long way from that point; the province’s credit rating is good and the debt-to-GDP ratio moderate.
Falcon can’t be made to wear all the blame for the growing deficit. The Finance Ministry’s assumptions about economic growth were more moderate than the independent panel of economists that advises government. The problem is that things keep getting worse than expected.
The U.S. economy is stalled, Europe is in crisis and demand in China is falling. B.C.’s export-dependent economy is being badly hurt by reduced demand and falling commodity prices.
And falling financial markets have meant losses in ICBC’s investment portfolio, with the result that the government now forecasts the corporation won’t be able to deliver the budgeted $290 million in revenue.
At the same time, the government can be criticized for unrealistically low spending budgets, which have created crisis in the courts and Community Living B.C.
The expense budgets are even more out of whack for the next two years. Most ministries face two years of budget freezes; health spending is forecast to rise three per cent in each of the next two years, half the rate of the increase this year.
All of which makes the balanced budget target even more out of reach — and Falcon’s retreat even more welcome.
Footnote: Falcon delivered some additional bad news. The move from the HST back to the PST is more complicated, and going more slowly, than anticipated. It looks like the change will take a full 18 months, until March 31, 2013. That’s bad for homebuilders and other economic sectors, and for the Liberals.
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