Sarah Leamon: Trudeau government creates legal quagmire with law allowing random, mandatory roadside breath tests

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      This holiday season, police will be armed with a new law to detect impaired drivers.

      Starting on December 18, officers throughout Canada will be able to enforce random, mandatory roadside breath tests for drivers at their discretion. 

      The Liberal government first introduced the notion of random, mandatory breath tests in Bill C-46.  This is the companion bill to Bill C-45, which legalized recreational cannabis earlier this year. 

      While some provisions in Bill C-46 are already in effect, such as per se limits for the level of THC in a driver's body, others—like the mandatory breath-testing regime—are still waiting to be rolled out.

      Unlike with cannabis, police officers already have fairly reliable tools to test drivers who may be affected by alcohol at the roadside. Screening equipment to evaluate alcohol impairment has been around since the 1970s. In 1976, Parliament created laws allowing police to use roadside screening devices to test for alcohol. 

      In British Columbia, police use the Alco-Sensor FST to test for alcohol on the roadside. While this device is not infallible, even ardent defence lawyers like myself have to reasonably agree that it is relatively accurate, so long as it is maintained and operated according to proper procedures. 

      And although its use has been subject to various legal challenges throughout the years, the law around roadside alcohol screening devices is well-established. 

      There is a certain degree of legal clarity, which is very desirable thing in all judicial proceedings.

      Currently, police can demand a driver to provide a breath sample using a roadside alcohol screening device if they have reasonable grounds to do so. Legally speaking, this means that the officer must both subjectively and objectively suspect that the driver has alcohol on their body. 

      The grounds for establishing this suspicion are relatively low. While there is no magic formula for doing so, there are guiding principles. An odour of liquor on the breath, an admission of recent consumption, or clues to impairment like slurred speech or problems with fine motor skills may all be relevant factors in determining whether reasonable grounds have been formed. In a number of provinces, courts have held that an odour of liquor on the breath by itself is enough to demand a roadside breath sample. 

      The vast majority of police officers are clear on what is required and how to properly administer a roadside breath test under current laws. They know what to do, and how to do it. 

      What is also clear is that the reasonable suspicion requirement is functional on a legal level. It is in place for a purpose. That purpose is to ensure that charter-protected rights and individual liberties are not improperly eroded. 

      After all, Canadians have a right not to be arbitrarily detained by police or subject to unreasonable search and seizure. Reasonable suspicion prior to breath testing helps to protect these rights and to ensure that drivers’ who have done nothing wrong are not impeded in their liberty or subjected to an invasive search for a bodily sample without reason. 

      On December 18, however, the law will change and certainty will be replaced with uncertainty.

      From that date forward, police will have a new set of rules when it comes to roadside breath testing, which means new training and new growing pains from an enforcement perspective. 

      Without the reasonable suspicion requirement, police will be able to demand that anyone who is driving or found to be in care or control of a motor vehicle provide a breath sample using a roadside breath-testing device. Police will not need any reason to do so. 

      However, there is a legislatively mandated disclaimer: the officer must have a breath-testing device with them at the time that they make the demand for a breath sample. 

      If they do not have the device, it does not mean that they are out of luck, though. They can still make the demand. In those narrow circumstances, the officer must simply form a reasonable suspicion of alcohol in the body. 

      This safeguard is ostensibly meant to provide some degree of protection against unlawful detention by ensuring that drivers who have not consumed alcohol are not detained for an extraordinary amount of time before the test is able to be administered. 

      It also tacitly endorses the current scheme around roadside breath testing as being an effective and fair measure between community safety and individual liberties, which is something that is sure to be argued when this new procedure is inevitably challenged through legal proceedings. 

      However, even in spite of the uncertainty and difficulty it may garner, the Liberals continue to justify this legislative change. They say that it is necessary for public safety and based on concerns around impaired driving following the legalization of cannabis.

      This is an easy moral argument. After all, no one wants to see an increase in impaired driving in their community, or anywhere else. 

      But this argument is disconnected from reality.  

      There has been absolutely nothing to indicate that impaired-driving rates have risen in Canada since October 17. Police forces throughout the country have reported no spike whatsoever in either cannabis-impaired or alcohol-impaired driving since legalization. 

      This means that there is no empirical evidence to support the notion that random, mandatory breath testing is required to enforce existing impaired driving laws. It also means that the legal argument for doing so may be tenuous at best. 

      Experts and lawyers from all over the country have been vocal in urging the government to reconsider its plans for random breath testing. 

      Some civil liberties groups have pointed to the distinct possibility of racial profiling, while others highlight the charter implications for all Canadians. The Senate actually removed this provision from bill C-46, only for the Liberals to re-add it in the House of Commons prior to passing it into law. 

      They are committed.

      But with the rationale behind their commitment eroding more and more with each uneventful passing day since October 17, the future of the impaired-driving law in this country is becoming unclear. 

      Perhaps the only thing that is clear is that on December 18, this holiday season will deliver the gift that keeps on giving for criminal lawyers all over this country—charter challenges for years to come.