Canada has become the second country in the world to legalize marijuana nationwide.  By now, many know the fundamental details of marijuana legalization; it is not yet legal to toke up but will be on October 17, 2018.  However, new to many is a second piece of legislation that accompanies the legalization of marijuana, Bill C-46 (the “Bill”).

On December 18, 2018, new laws will come into effect to crack down on impaired driving.  The Bill introduces changes to both alcohol-impaired driving and drug-impaired driving.  The Bill also grants police officers powerful tools to charge drivers suspected to be impaired. 

While there are multiple changes introduced in Bill C-46, the most shocking of them is random roadside breath testing.  Currently, in order to request a roadside breath test to measure intoxication, police must have a reasonable suspicion that the person operating a motor vehicle has alcohol in their system.  This reasonable suspicion may stem from erratic driving, glossy bloodshot eyes, visible alcohol containers in the vehicle, slurred speech, or the smell of beverage alcohol emanating from the drivers mouth.  However, beginning in December of 2018, police will be permitted to require a roadside breath test for any driver – absent a reasonable suspicion of the existence of alcohol in the driver’s system.  The Bill proposes to amend the Criminal Code to include section 320.27(2) which eliminates the requirement for a reasonable suspicion and reads as follows:

320.27(2)   If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

Drivers who refuse the test will face a criminal charge carrying similar penalties to that of an impaired driving conviction.

Random roadside breath testing encompasses a significant expansion of state power and contains numerous investigative and evidentiary short cuts that heavily impact Charter rights.  Notably, there is nothing truly random about police stops.  In 2016, a human rights complaint for racial profiling initiated the “Ottawa Police’s Traffic Stop Race Data Collection Project” (the “Study”).  The Study found that visible minorities are disproportionately subjected to traffic stops.  Furthermore, the Study determined that after being stopped, visible minorities were ticketed for driving infractions less often than their non-racialized counterparts.  As such, the Study indicates that minorities are at a higher risk to be stopped by the police for no reason.  The results of the Study come long after the Supreme Court of Canada had already formally accepted that racism is a reality in Canadian police forces in the decision of R v Golden, [2001] 3 SCR 679.

Applying the findings of the Study to the Bill, it is easy to foresee that visible minorities will be subjected to random roadside breath testing more often than individuals who are not a visible minority.  Readily apparent is the breach of section 15(1) of the Charter which states that:

Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. 

Further, increased police powers to randomly – I use that word loosely – stop drivers and conduct breath tests will result in increased searches and detentions, thereby introducing further constitutional issues under sections 8 and 9 of the Charter.  Sections 8 and 9 of the Charter grant Canadians, of all colours, the right to be secure against unreasonable search and seizure and the right to not be arbitrarily detained.  To be clear, the demand for a breath sample is a search and keeping individuals roadside while explaining the random roadside breath test procedure, demonstrating the operation of the machine, and obtaining a breath sample from them amounts to being detained.

Neither evidence nor statistics indicate a need for this change.  Under the current rules, Saskatchewan, which has the highest rates of impaired driving among the Canadian Provinces, has seen a steady decrease in impaired-driving related deaths and injuries over the last six years.  Specific statistics provided by Saskatchewan Government Insurance of impaired-driving deaths and injuries since 2012 are as follows:

2012: Deaths = 72; Injuries = 756
2013: Deaths = 43; Injuries = 613 
2014: Deaths = 60; Injuries = 560
2015: Deaths = 54; Injuries = 586
2016: Deaths = 57; Injuries = 464
2017: Deaths = 39; Injuries = 340

Even if random roadside breath testing is tolerated by the majority, it is important to remember that protection against discrimination and arbitrary harassment is not determined by what the majority will accept.  While the intent of the Bill to decrease impaired driving is commendable, it is unlikely that it will stop impaired driving from occurring and will successfully introduce a host of constitutional challenges bound to occupy substantial court resources.  The effort to increase safety on our roads is a noble quest but cannot be a burden that is not blindly and equally shouldered by every individual.

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