The Canadian Press
Joanna Smith
OTTAWA–Demanding a breath sample from a motorist is no different than asking for their licence and registration, Canada’s justice minister argued yesterday as the federal Liberal government defended its proposed new crackdown on impaired driving.
Jody Wilson-Raybould tabled a so-called “charter statement” in the House of Commons, explaining why the government believes the new measures are permissible under the Charter of Rights and Freedoms.
“The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety,” Wilson-Raybould’s statement said.
“The information revealed from a breath sample is, like the production of a driver’s licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated contexts of driving,” she noted.
Bill C-46, which includes new powers for police and harsher penalties for driving under the influence of alcohol or drugs, was introduced in the Commons last month alongside the government’s long-awaited plan to legalize marijuana for recreational use.
The new mandatory alcohol screening measures would mean police could demand a breath sample from any driver they lawfully stop–even if they had no suspicion the person had been drinking before being pulled over.
The roadside test itself could not lead to a charge, but it would allow the police to continue investigating and to subject the driver to further tests.
The bill also would allow police to demand a saliva sample from a driver if they reasonably suspect the person has drugs in their body, such as by noticing unusually red eyes, abnormal speech patterns, or the telltale scent of marijuana.
The proposed legislation has raised eyebrows among some criminal lawyers, who believe it will be challenged in court.
The statement outlines why the Liberal government considers the new powers to be consistent with charter guarantees about search and seizure, as well as life, liberty, and security of the person.
It points out, for example, that while the bill would eliminate the need for reasonable suspicion of drinking and driving, it still only would apply if the driver was lawfully stopped in the first place.
But Anthony Moustacalis, president of the Criminal Lawyers’ Association, said he’s concerned the new law could lead to a higher number of random stops of visible minorities.
“I think the one area of constitutional attack would be that, given the developing statistics on subconscious racism by the police, or unconscious racism, and the increased empirical data on misuse of random stops by police for visible and other minorities.”
Robert Solomon, national director of legal policy for MADD Canada, said people already have to go through mandatory screening in order to do all sorts of things.
“Mandatory alcohol screening serves exactly the same protective purpose as airport, border, and courtroom searches, but is far more effective and addresses a far greater risk,” said Solomon, who also is a law professor at Western University in London, Ont.
