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More Power to the Police for Alcohol and Drug Testing?

Bill C- 46, the current Liberal government’s ‘draft’ set of rules for detecting and punishing drug-impaired driving, and for updating the laws on drunk driving proposes extending authority to the police to obtain roadside breathalyzer samples without any need of ‘reasonable grounds’ for suspecting impairment.

Canadians have grown accustomed to RIDE (Reduce Impaired Driving Everywhere) check-stop campaigns which seem to be essentially just this: random spot checks for drunk driving of a whole line-up of drivers who just happen to be driving the route blocked by the check stop.  Although not legally obligated to answer the questions posed by the police at such a stop, drivers who refuse to answer may be asked to submit to breathalyzer testing.  Refusing this test risks being charged under the Criminal Code.

But because of our now almost universal cultural condemnation of drunk driving, and adaptation to RIDE programs and the relatively recent even stricter administrative rules under provincial Motor Vehicle statutes —in BC, for example, blow .05% BAC or over for impoundment, license suspension, and a host of other penalties— when the Federal Justice Minister, in support of Bill C-46, expressed confidence the changes in Bill C-46 will survive Charter scrutiny, most Canadians were likely easily persuaded there was ‘nothing to see here.’  More specifically she rationalized to the Commons justice committee that assembly-line breath testing was “minimally intrusive” and “that the benefits in lives saved will be immeasurable.”

Drug-impaired and alcohol-impaired driving

“Not so fast,” say some commentators.  Colby Cosh writing in the National Post, 19 June 2017 edition points out, regarding the immeasurability of the benefits in lives saved that “courts reviewing automatic alcohol screening will want to hear precisely the opposite from Justice Department lawyers: that the benefits are measurable and objective.”  As for the minimal intrusiveness of testing—Cosh notes this begs to ask why we bothered “with this “reasonable grounds” nonsense for close to 50 years of drunk driving law? Why wasn’t the law designed to allow random breath sampling in the first place, if it raises no serious question about the unreasonable search of the person?”

Mr. Cosh summarily outlines the development of the law regarding drunk driving both pre- and post-Charter noting that, “the public (and many judges) found breathalyzers hateful and suspicious — a harbinger of a chemical police state.  [Pre-Charter, the government] …was politically obligated to reassure the people by inserting strong, explicit language requiring “reasonable grounds” into the [Criminal] Code itself. … [Post-Charter] …legislation need [not…] specify that the police have to observe personal freedoms that have existed in the English- speaking world for centuries.”

Mr. Colby also observes that “Nowadays we are a little sleepier.  We trust the courts to exercise the strong revision powers we gave them when … the Constitution […was repatriated.]”  In other words, Mr. Colby is saying that excluding a “reasonable grounds” requirement from the text of a rule will not necessarily preclude the courts from interpreting it otherwise.  And, as he points out from “sampling 50-plus years of judicial drunk- driving decisions that judges before and after the Charter often commended the “reasonable grounds” requirement as an obviously positive and necessary feature of the law.”

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