Derek Neary
Northern News Services

NNSL (Jun 03/98) - Statistics indicate that drinking and driving-related deaths and injuries are a major cause for concern in the NWT.

The Department of Transportation has proposed a number of provisions, currently being considered by the public, to reduce alcohol-related accidents.

But some observers have suggested the provisions proposed by the department could violate Northerners' constitutional rights?

Yellowknife defence lawyer James Brydon said impounding vehicles immediately if driven by anyone with a suspended licence, could make life difficult for others who rely on the vehicle for crucial matters such as employment or regular trips to the hospital for kidney dialysis.

"People have forgotten in the Northwest Territories that the Bill of Rights still applies. It's still valid legislation here and it binds both levels of government here," he said.

"Unless they put a notwithstanding clause in, that section is going to fail. That's the deprivation of property -- and you have to do it according to the Bill of Rights by due process, i.e., go to court."

If a sibling borrows a vehicle, without the owners knowledge, has a few drinks, gets pulled over and the car is impounded, are the courts going to say the owner "should have known better than to be the brother of somebody who would do this," Brydon asked.

The police in Manitoba, where a 30-day impoundment for suspended drivers is the books, have been enforcing such legislation for the past nine years.

Carolyn Halbert, supervisor of driver records and suspensions for the Manitoba Department of Highways and Transportation, said there is an appeal process in Manitoba that normally takes no more than three days. To be successful, drivers must prove that their licence was not suspended or that they were not aware that the person driving your vehicle had his or her licence suspended.

This law has been challenged and upheld in a lower court, Halbert said.

Richard MacDonald, director of motor vehicles for the NWT, said his counterpart in Quebec has told him that since similar legislation was introduced there six months ago, they have impounded more than 10,000 vehicles without a single challenge.

As well, a lawyer pointed out to MacDonald that there is a section under the Charter of Rights and Freedoms that states "reasonable" violations of Charter rights are allowed.

As for the recommendation that anyone who is found to have a blood-alcohol content of 0.04 or higher, or anyone who refuses a to provide a breath sample, immediately has their licence revoked for 30 to 90 days, Brydon said that the courts could maintain they have the right to suspend a privilege, seeing as driving is not a right.

He also noted there is always a chance the breathalyser may be malfunctioning.

MacDonald noted impaired driving doesn't always equate to exceeding 0.08 -- that's why there is an impaired driving charge in addition to the charge of blowing over 0.08.

"You could have a couple of beers with a combination of pills and not be in any shape to drive," MacDonald said.

Brydon asked, what if the person who is stopped is normally a taxi or bus driver? "Is there an appeal mechanism?" he questioned.

MacDonald countered that "any time you're charged, you can always appeal to the courts."