I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
One of the worst changes to the impaired driving laws proposed by our government is with respect to the introduction of random breath testing. The theory is that police will be able to compel any driver who is lawfully stopped to provide a breath sample into an approved screening device. I have previously written about the broad and almost absolute authority that police in Canada have to conduct random traffic stops.
Because this authority is so broad, it means that anyone anywhere at any time could be asked to provide a breath sample. While that might seem like a powerful weapon in the battle against impaired driving, it is not only unnecessary but also unconstitutional.
This is a significant departure from the constitutional safeguards we have established. Even more troubling is that this comes on the anniversary of the Charter – something that Jody Wilson Raybould, who backed the legislation tweets about having framed in her office. She might have it framed, but it’s questionable that she read it before putting her stamp of approval on such short-sighted legislation.
The Charter guarantees the right to be secure against unreasonable search and seizure. What this means is simple – the police cannot search you without a warrant or without a lawful basis for doing so. If there is no warrant, as is the case for breath samples, the Court reviewing a search asks the following questions to determine whether a search is reasonable:
Is it authorized by law?
Is the law reasonable?
Is the manner in which the search conducted reasonable?
The problem that arises is this – approved screening device testing, or roadside breathalyzer testing as it is commonly known, has already been held to violate Section 8 and 10(b) of the Charter. The seminal case on this issue is R. v. Thomsen. There, it was held that the search that is undertaken by police on the basis of only a suspicion of alcohol in the body is contrary to Section 8 of the Charter.
So why are the police allowed to do it? The answer comes in Section 1 of the Charter, which allows the government to “save” a law from being found unconstitutional if it minimally impairs rights, is rationally connected to the objective of the law, and is proportional. This is known as the Oakes test, for the famous case that defined it.
The only reason this law does not totally violate the constitution is the fact that the testing is required to be done immediately, on the basis of a reasonable suspicion standard, and that there is use immunity in respect of the results obtained.
But if we change the law to remove one of the significant constitutional safeguards – the obligation that the police form a reasonable suspicion – then no longer is the law saved by Section 1.
This about saving lives and stopping drunk drivers
Now, I know many people may think that this is a fair trade-off because impaired driving is a public safety issue and there is a problem with deaths and injuries on our roadways. And while there are tragic cases of preventable deaths, creating laws that are essentially arbitrary and depend upon what is already an absolute power exercised by police is dangerous.
First of all, there is little support for the fact that random breath testing actually reduces death and injury rates. Just look at Australia. There, they have no Charter equivalent and the road death rate is increasing over previous years, in large part due to drunk driving. In Canada overall in 2015, we had the lowest rate of impaired driving historically recorded. And if you check out those statistics then you can see that British Columbia, which boasts the harshest drunk driving laws in the country, doesn’t even lead in the decline in drunk driving. In fact, in BC despite the severity of the laws and the penalty, the drunk driving rate may be on the incline.
The decline in road deaths is attributable to so many factors. We have developed laws that pertain to safety, like mandatory seat belts and electronic device regulations. Car companies are using technology to build safer cars, including cars that stop automatically and stay in the lane of travel. Crash resistance, crumple zones, and airbag technology have improved dramatically over the past few years. Strengthening laws is not necessarily the cause of any reduction in death tolls on the roadway.
What this legislation does is prey on the fear-mongering associated with drunk driving deaths. Sacrifice your constitutional rights or risk your life at the hands of a possibly impaired driver. History tells us that this is the same type of tactic used by totalitarian regimes as they begin to unwind constitutional protections.
But is this law even necessary?
Frankly, I do not think so. People are going to drink and drive. The problem with combining alcohol and judgment is that the two do not mix. The more you drink, the less good your judgment. That’s indisputable. But the problem is that as your judgment decreases, so too does your ability to remember the fact that there is random breath testing. It’s not going to stop people from getting behind the wheel in the first place.
Studies have shown, however, that education and visible and consistent enforcement does.
Moreover, the law is not necessary to make impaired driving cases easier. The Government claims that police are having too much difficulty identifying impaired drivers in traffic stop scenarios and gathering the grounds for a demand. This is far from true. I challenge the government to produce some statistics to show a high number of drivers involved in death or injury collisions who were previously stopped by police in the same driving event, and who then were undetected as impaired drivers, and who then killed or injured someone.
It doesn’t happen.
So what constitutes reasonable suspicion?
The reasonable suspicion standard is low. Exceedingly low. Excruciatingly low from a defence counsel perspective. It can be frustrating. It’s not a reasonable suspicion of impairment, or a reasonable suspicion that alcohol is affecting your ability to drive, or even a suspicion that you are over the legal limit. Rather, the police only have to suspect that there is alcohol in your body.
That could mean that the police can suspect you had a drink, without even believing or suspecting that you are impaired by that drink, if it was close enough in time to when they stopped you.
Generally, the police can form a reasonable suspicion on the basis of one of two factors: an admission to consuming alcohol with sufficient proximity to the time of driving, or detecting an odour of liquor on the breath of the driver. This is very easy for the police to do.
Surprisingly, despite the right to silence, most drivers tend to admit they have been drinking.
As for detecting an odour of liquor, drivers are required pursuant to Section 73 of the Motor Vehicle Act to state their name and address upon request by a police officer. Every province and territory has a mirror provision. This allows the officer to engage in questioning the driver for the purpose of detecting an odour of liquor on the breath, but can also give them the opportunity to listen for slurred speech.
Police can even request a driver to blow in their face, a practice that has been upheld by the BC Court of Appeal.
And if the officer smells liquor in the vehicle but not on the breath, the officer has powers at common law to request the driver to exit the vehicle in order to separate them from the odour of liquor inside the vehicle. This also gives police opportunity to detect balance problems.
And even if there is no odour detected on the breath or an admission of consumption, a constellation of objectively discernible facts that point to alcohol being in the body is sufficient to give an officer a reasonable suspicion. For example, a person observed leaving a bar at closing time, with slurred speech and bloodshot eyes might demonstrate a sufficient basis for the officer to demand a roadside breathalyser sample.
It’s not a hard standard. All it requires is a little bit of investigative work by the police, the work they are paid tax dollars to do. The work we expect them to do. The work they are trained to do. And the work the law as it stands already allows them to do.
We don’t need to have random breath testing to allow police to catch impaired drivers. If there is any difficulty, it comes from the police not using the tools they have available to them, or not knowing due to a lack of training. Those problems can be corrected without sacrificing the constitutional rights of Canadian citizens.
Oh, and one other thing.
Many people have been critical of defence lawyers like myself for stating that this law is unconstitutional. The frequent complaint is that we are just saying this because it’s going to hurt our bottom line. The reality is the opposite: if there are more drunk driving cases, if the penalty is more significant, and if the cases become more difficult, more people will be hiring lawyers. It’s simple math: the more people stopped and charged with drunk driving, the more work for us.
Despite the common mythology, defence lawyers are by and large not about lining their own pocket. We see ourselves as playing an important role in ensuring the integrity of the justice system and protecting the rights of private citizens from intrusion or overstepping by the state. I do not criticize this law because I think the current legal system will make me more money, but because I think the proposed law is wrong.
I respect anyone’s right to disagree with us, but I do not believe it is fair to insult our integrity or respect for the justice system.
And these proposed changes show a disregard for the justice system.