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More Police Power in Dealing with Suspected Drunk Drivers

On May 11, 2017, Canada’s Minister of Justice tabled a ‘Charter Statement’ in the House of Commons equating demanding a breath sample from a motorist with asking for their licence and registration and, hence, permissible under the Charter of Rights and Freedoms.  The Minister did so in support of Bill C-46, recently introduced in the House of Commons to amend the Criminal Code in a number of respects including giving police additional powers for detecting driving under the influence of alcohol or drugs.

The Minister’s Statement says, “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.  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.”

Permission to demand a breath sample

Most significantly, Bill C-46 grants authority to the police to demand a breath sample from any driver they legally stop, even without suspicion the driver was drinking before being pulled over. While the roadside test administered under this new power, without more, cannot lead to a charge, it will allow for continuation of the investigation thereby allowing for further testing. Of this testing the Statement says, “It does not reveal any personal or sensitive information and taking the sample is quick, and not physically invasive.”

Dealing with impaired driving

The Statement, while expressly qualifying that it is “not a legal opinion on the constitutionality of [the] bill” defends the consistency of these new powers with the Charter guarantees regarding search and seizure, and life, liberty, and security of the person.  Currently, it has been said that police officers have difficulty identifying “a driver who should be administered a breath test.” This change, it says, “would reduce the impact of this kind of human error.”  Another supporting rationale: it will increase “the deterrent effect of roadside stops by eliminating the perception that motorists could avoid having to give a sample by hiding their impairment.”

Breath samples in other countries

The Canadian Press [Joanna Smith, May 12, 2017] reported the Statement also referenced “research done in other countries that have taken a similar approach, including Australia, New Zealand and Ireland [showing that such measures have] helped reduce serious car crashes by 20 to 35 per cent.”

Additionally the above-mentioned article reported that MADD Canada (Mothers Against Drunk Driving) had put out a statement that “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.”

Supporting the proposal

A Globe and Mail Newspaper/Nanos Research poll taken a few days later found “only 44% of respondents supported or somewhat supported the proposal, while 55% opposed or somewhat opposed it.”  Critics say the law is unconstitutional and could lead to a higher number of random stops of visible minorities.  In contrast, the Justice Minister said, “If [Bill C-46] passes Parliament, it will be one of the strongest impaired-driving pieces of legislation in the world. … Ensuring that we have safety on our roads and our highways is of paramount concern.”

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