Do you ever get the feeling that the federal Liberals’ left hand hasn’t the slightest idea what its right hand is doing? Like, not the first clue?
On Dec. 18 of this year, Canada’s impaired driving laws will undergo a significant overhaul. Part of this is to update the laws to reflect the recent legalization of cannabis, and some of the legal wrinkles that has created. Another part is aimed that bringing down the rate of impaired driving, which though lower than before, remains stubbornly stuck at unacceptable levels. To try and catch drivers who might currently be slipping through unnoticed, the most controversial aspect of the law is changing when an officer can request a breath sample.
Under the current law, an officer needs reasonable cause to request a breath sample. Erratic driving would count. So would slurred speech observed during a roadside checkpoint or a stop for another reason. The smell of alcohol, or even simply admitting to consuming some alcohol, would also give the officer reason. Under the new law, that won’t be necessary. An officer will be able to request a breath sample during any lawful stop, without any further or specific grounds to suspect impairment. The breath test, if it suggests impairment, would be grounds for further investigation, including blood work, at a police station.
This, to put it mildly, has alarmed civil libertarians. When the law was being debated in Parliament, the Canadian Civil Liberties Association, for instance, warned that giving police officers broader ability to test random citizens at their own discretion would disproportionately affect ethnic minorities. Quoting from their submission to Parliament, the CCLA argued, “Experience has … unfortunately demonstrated that ‘random’ detention and search powers are too often exercised in a non-random manner that disproportionately targets African-Canadian, Indigenous, and other racial minorities. … In a recent study, researchers found that black youth in Toronto were 4.1 times more likely to be stopped and questioned for traffic reasons than their white counterparts, in spite of evidence suggesting no sound basis for stopping black youth at a rate higher than white youth.”
But the Liberals aren’t worried! The Justice Minister, Jody Wilson-Raybould, has said she expects there to be a volley of court challenges to the new law, but believes the government is on firm legal footing. Organized Crime Reduction Minister Bill Blair was even more blunt, asserting that a non-random stop would be inherently illegal, and thus any evidence gathered would be no problem.
Easy-peasy! Nothing to see here, folks, move on.
The problem is, the federal Liberals are not entirely consistent with their views on this issue.
It wasn’t that long ago that a senior Liberal was talking about this very topic at an event, and recounting when his younger brother was caught with drugs. “My dad said, ‘OK. Don’t worry about it,’ reached out to his friends in the legal community, got the best possible lawyer, and was very confident that we were going to be able to make those charges go away,” the senior Liberal explained. “We were able to do that because we had resources, my dad had a couple connections, and we were confident that my little brother wasn’t going to be saddled with a criminal record for life.” This senior Liberal candidly acknowledged that his family’s background — white and affluent — was a huge help when it came to getting slack from police officers. He agreed with an audience member who noted that Canadians who are ethnic minorities can’t count on the same generosity from law enforcement. The senior Liberal called this “one of the fundamental unfairnesses” of the Canadian justice system.
The “senior Liberal” was Prime Minister Justin Trudeau. The event was in 2017, a town hall on cannabis legalization being hosted by Vice News’ excellent Manisha Krishnan, and the Prime Minister was talking with a young black man who was facing charges for possession of marijuana. The story Mr. Trudeau told about his brother, the late Michel Trudeau, was clearly to signal that the Prime Minister understood the blindingly obvious — affluent white guys like the prime minister (and me!) tend to have way better experiences with the police than other Canadians can expect.
I don’t have a story quite as dramatic as the prime minister’s, but I’ve spoken openly about being caught dead to rights by an officer on a late-night patrol with an open container of alcohol on public property. A friend was going through a rough patch, and we took a walk. I brought a bottle of something tasty to take the edge off his hurt. We stopped in a public place — the steps of our former high school, actually, which was appropriate for the evening’s topic of discussion — late at night and were taking the odd sip when a police officer arrived. He shone his light in our faces. I told him, respectfully and truthfully, that we were exactly what we looked like — two young guys out late, having a drink and sharing our troubles. The officer paused for a minute, shrugged, put away his flashlight and lit a cigarette. “Screw it,” he said, “you guys aren’t causing any problems.” We enjoyed a very amicable casual chat. The officer finished his cigarette, wished us a pleasant evening, told us to stay out of trouble (he said that with a wink) and drove off.
WATCH BELOW: York regional police begins naming drivers charged with impaired driving
I was lucky. The prime minister’s brother was lucky. Trudeau and I might not agree on everything, we’d agree on that — we benefited from the discretion of police officers in a way many other Canadians would not. In fact, the prime minister was so aware of his luck — privilege is actually the preferred term, I believe — that he committed his government to the massively complex task of cannabis in part because he felt it was essential to make our justice system fairer by leaving less up to the discretion of police officers! Because, guess what? That discretion is not working out equally for everyone.
How strange it is, barely a year later, to hear cabinet ministers arguing in favour of increasing the very type of police discretion that the prime minister himself, in only a slightly different context, recognized as a fundamental unfairness. Why, it’s almost like they haven’t entirely thought through their position on this at all!