Newly-proposed roadside alcohol screening measures could violate people’s Charter rights, according to the Canadian Civil Liberties Association.
These new measures, introduced alongside the federal government’s marijuana legislation, will make it easier for police to make drivers blow into a breathalyzer. Under the proposed measures, police could demand a breath sample from any driver they lawfully stop — without first having a suspicion the person has been drinking.
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The aim is to help police catch more drivers at the wheel with more than the legal limit of alcohol in their bloodstream.
This is a laudable goal, said Noa Mendelsohn Aviv, director of the CCLA’s equality program. However, she thinks that this legislation, if passed, will affect some Canadians more than others.
“Having random roadside tests for alcohol levels essentially allows officers the discretion to stop people and require a breath sample in ways that are likely going to have a disparate impact on African-Canadians, indigenous individuals and other marginalized and racialized individuals because those already are the people who are disproportionately stopped by police,” she said.
Although she hasn’t had time to read through the details of the bill, introduced Thursday afternoon, what she has seen so far in the government’s news releases worries her.
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A mandatory roadside alcohol test, she said, is “an intrusion into a person’s personal privacy, into their human dignity, and it’s the courts who have recognized this.”
“So we need to have a high justification if we’re going to intrude, and a random test does not seem to rise to that level of justification.”
Specifically, she thinks that the rules could violate a person’s right against unreasonable search and seizure, to life, liberty and security of the person, and the right to equality — because these rules could potentially have a greater effect on some communities than others.
Justice Minister Jody Wilson-Raybould said in a press conference that she is “confident” in the constitutionality of these rules and will be tabling a Charter statement about the measures soon.
“In terms of police officers pulling people over for the reasons that they can legally, that is the premise of this piece of legislation. And no matter who is sitting in the driver’s seat, they are able to ask for the roadside test,” she said.
Breath tests and the courtroom
Some groups, like Mothers Against Drunk Driving, support the proposed measures. MADD has been pushing for these changes for at least six years, according to Carolyn Swinson, a national board member and spokesperson for the organization.
“I’m thrilled to see the mandatory alcohol screening,” she said. It’s an issue close to her heart because her eldest son was killed in an impaired-driving crash. Although the accused’s blood alcohol level was two-and-a-half times the limit, Swinson said, the driver was acquitted because her rights were violated when the police demanded a breath test.
“One of the frustrating things about going into a courtroom for impaired-driving trials, the first thing is there will be legal arguments to disallow that breath test. And it takes up so much time and it’s so difficult for families to listen to and to see cases thrown out due to technicalities — which if you look at it, timeframes and things that really don’t make sense when somebody’s blown two, three times the legal limit.”
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Mendelsohn Aviv thinks that having such limits is appropriate. “A person suspected of murder also gets put on trial and they get protections within that system to ensure that the way in which they were treated by police was nonetheless constitutional,” she said.
“Individuals are presumed to be innocent and they have a fair trial and all of these rights are written into our constitution because sometimes people are innocent.”
Deterrence
Swinson also believes that the proposed rules will have a deterrent effect. “We know a lot of people get through the RIDE spot checks without being detected. And also a lot of people who drive impaired do so because they know the likelihood is that they will get away with it.”
“So the mandatory alcohol screening will allow more people to be picked up going through the RIDE spot checks who are driving impaired, and it also gives people the impression out there that there is more likelihood that they will be caught.”
Countries such as Australia and New Zealand which have adopted mandatory roadside testing have seen a big reduction in deaths and injuries due to impaired driving, Swinson said, something also mentioned by the justice minister.
Mendelsohn Aviv disagrees, saying that these examples aren’t applicable to the Canadian context. She believes that current programs, like RIDE, could equally deter people from driving while impaired.
And with increased powers, she said, police will have to demonstrate that they are applying the rules equally by providing data on who they’re stopping and why, so they can be held accountable if they appear to be targeting visible minorities, for example.
MADD also does not want to see this legislation affect marginalized groups disproportionately. “That would be absolutely the wrong use of bringing this in,” said Swinson.
With files from the Canadian Press
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