Alberta’s Court of Queen’s Bench weighs in on R v Sohal and pre-trial credit for license suspension

In Alberta, there has been much debate over the last few years regarding license suspensions for impaired driving. Essentially, for the last few years, one’s driver’s license was suspended indefinitely in Alberta pending the result of impaired driving charges. In 2017, the Alberta Court of Appeal struck down the provincial legislation providing for this arrangement, in Sahaluk v. Alberta (Transportation Safety Board) 2017 ABCA 153 (CanLII). The Court found that it was unconstitutional to indefinitely suspend the accused’s license pending the result of the accused’s charges. As a result, the province enacted new legislation that provided for a 90-day suspension only, as of April 2018. However, the question remained as to whether the accused should be granted credit for time served under a provincial suspension if the accused later pled guilty or was found guilty under the Criminal Code of Canada. For example, if the accused pleads guilty to an impaired driving charge, and their punishment under the Criminal Code is the 1-year minimum license suspension for a first-time offender, should they be given credit for the 90 days served under the new provincial suspension (or longer, under the old regime)? The Provincial Court of Alberta has been divided on this issue, with R v Sohal 2018 ABPC 86 (CanLII) and R v Ludwig 2018 ABPC 122 (CanLII) suggesting that it may be granted; and R v Chan 2018 ABPC 155 (CanLII) and R v Kiyawasew 2018 ABPC 160 (CanLII) suggesting that it should not. Sohal has been appealed to the Court of Queen’s Bench in Calgary (Justice deWit presiding). The matter was heard in July 2018, and we are awaiting a written decision on this matter.

The Court of Queen’s Bench did issue a decision on this issue on October 2, 2018, by Justice Mandziuk out of Edmonton: R v Watson, 2018 ABQB 832 (CanLII). This case was an appeal from a decision by Assistance Chief Judge Anderson of the Provincial Court to grant credit for the suspension. In upholding ACJ Anderson’s decision, Watson seems to strongly favour the Sohal line of cases, and suggests that, at least in Alberta, pre-trial license suspension credit may be provided. It will not be surprising if this decision is appealed to the Court of Appeal by the Crown.

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