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Limiting the right to procedural fairness

New Alberta regime expands administrative powers and penalties.

Downtown Calgary

As the second wave of the COVID-19 pandemic surged in Alberta, the Provincial Administrative Penalties Act (PAPA), was proclaimed in force. It received little fanfare. The PAPA regime, introduced as part of the "Justice Transformation Initiative,” removes procedural protections and imposes serious and immediate penalties for administrative offences. For now it only applies to offences like impaired driving under the Transportation Safety Act (TSA).

But it is clear that PAPA could someday apply broadly to govern administrative offences in Alberta. The Immediate Roadside Sanction program introduced by the PAPA empowers peace officers to impose new and strict administrative penalties at roadside. It also contemplates a rapid, abridged review process for challenging penalties.

The Justice Transformation Initiative contemplated "freeing up police and courts to make Alberta safer," and described a "simplified, accessible and swift system" for resolving most first-time impaired driving and other traffic safety offences. Of note, disputing administrative penalties for impaired driving and some other TSA offences have long been the purview of the Transportation Safety Board and not the courts. Under PAPA, as before it, impaired driving penalties are imposed by the police.

The new regime expressly limits the right to procedural fairness for persons disputing penalties. These limits may have a constitutional dimension, as may the new roadside penalties. While administrative decision-makers may not be required to determine if Charter rights have been breached, if a person’s "life, liberty, and security of person" are at stake, courts have held procedural protections afforded by the Charter cannot be limited by statute. Courts in Alberta have recognized that a person's "life, liberty, and security of the person" are not only engaged by imprisonment. As yet, there is no decision from an Alberta court tackling a judicial review application under PAPA, nor any meaningful Charter challenge to the new regime. These must be expected.

Key features

PAPA applies to a person (a "recipient") when an "officer" (a peace officer or other person with legislative authority to enforce a statute) issues a "notice of administrative penalty" (NAP).  The penalty for a NAP may be a fine, or "any other administrative consequence" including a sanction, restriction, prohibition, requirement, condition, suspension, disqualification or cancellation – but does not include imprisonment.

The timelines for disputing an NAP are rapid, with limited exceptions available. The recipient of an NAP must file a request for review within seven days after the NAP was issued and pay a fee to do so. Then, an adjudicator must conduct a review of the NAP within 21 days from the date the NAP was issued. Review of an NAP may only be sought on "prescribed grounds", and the adjudicator must cancel the NAP if satisfied that the prescribed grounds for cancelling the NAP have been met. Review decisions must be given within 30 days of the NAP being issued.

While PAPA is an effort by the government to promote access to justice and reduce strains on a backlogged judicial system, there are many features of the Act that should cause concern to those who might become subject to its operation.

Procedural fairness limitations

In addition to the expedited time constraints imposed for the review process, PAPA expressly limits procedural protections that may otherwise be available at common law.  

Each element of the review procedure is closely governed and limited by the Act. The review is presumptively to be conducted in writing, but under the Provincial Administrative Penalties Regulation, it may be conducted orally if requested by the recipient. This oral hearing may be by telephone or other electronic means, may not exceed 30 minutes, and may not be conducted in person. Cross-examination is expressly prohibited in a review. The rules of evidence applicable to judicial proceedings do not apply.

As well, PAPA places the burden of proof in a review on the person seeking review – the recipient of the NAP. The recipient must disprove the allegations against them to have the NAP cancelled. This is a significant change from the prior regime governing traffic offences, in which the recipient bore the onus of establishing a Charter breach, but the onus was otherwise upon the government. These provisions will inhibit challenges to the evidentiary basis for NAPs.

The procedures set out in the PAPA also raise the possibility that a recipient will have to make their review submissions before they have adequate notice of the case against them. The PAPA obliges the adjudication branch to provide certain prescribed information to recipients seeking review, however, there is no deadline to do so. Scant information is required to be included in a NAP. Under these constraints it may be difficult for a recipient to discharge their burden of disproving the alleged contravention.

Legislated standard of review

In addition to facing a reverse onus in an administrative review of a NAP, those who apply for judicial review of adjudicators' decisions under PAPA must also meet a stringent standard. The standard of review applicable by the courts to adjudicators' decisions is the deferential reasonableness standard.

Charter concerns

It is a principle of administrative law that the legislature can abrogate common law procedural protections through clear language to that effect. However, where an individual's "life, liberty, or security of person" is at stake in administrative proceedings, section 7 of the Charter affords procedural protections that cannot be overridden by statute. Canadian impaired driving legislation has been struck down in the past, under section 8 of the Charter, where searches were authorized without sufficient procedural protections.

It is clear that PAPA will not apply where imprisonment is a potential consequence of a contravention. This likely precludes an individual from arguing their section 7 Charter rights have been engaged, in most circumstances. However, imprisonment is not the only consequence that threatens a person's "life, liberty, and security of person", as Canadian courts have recognized.

Although PAPA is presently only integrated with the Alberta impaired driving regime, its provisions clearly contemplate broad application. "Administrative penalty" for the purposes of PAPA is defined to include a "fine or any other administrative consequence […]" that "does not include imprisonment.” PAPA applies by regulation, or express legislative provision in any Act, to anyone who may be liable to an administrative penalty. PAPA will not apply to any administrative penalties imposed under the prior regime, or where legislation expressly excludes its application. As well, the Justice Transformation Initiative contemplated three phrases, in the third of which PAPA would be "adopted and adapted for use by any regulated area of provincial jurisdiction."

The government has indicated the application of PAPA to laws other than the TSA will be tailored to the context as applicable, but all sectors should be aware of the key features of PAPA and consider taking proactive steps to anticipate its potential effect on compliance risk. Whether or not the Charter may oust procedural limitations imposed under PAPA will depend in large measure on the legislation to which it may be extended.