A judgment call - Macleans.ca

A judgment call

Random Breathalyzer tests could violate the Charter of Rights

A judgment call

Photograph by Jack Sullivan/ Getstock

Osgoode Hall law professor James Stribopoulos, currently a visiting scholar at the Melbourne Law School in Australia, is a specialist in criminal procedure. Earlier this month, he accidentally stumbled into an experiment in comparative search-and-seizure law while on his way to tour a penguin habitat with another Canadian colleague. “I was pulled over by the Victoria police during the drive because I had my headlights on (how Canadian of me; they don’t have daytime running lights here),” he writes by email. “Almost immediately, I was required to furnish a breath sample into a roadside Breathalyzer and to provide a saliva sample. The latter is a new test they are deploying here—essentially they scrape some saliva off your tongue and see how it reacts to two chemicals that are supposed to test for cannabis and methamphetamines.” Declared alcohol- and drug-free, and turned loose, Stribopoulos and his passenger naturally wondered: could such a thing ever happen in Canada?

Last year, the House of Commons justice committee recommended that the Criminal Code be amended to permit random police stops of drivers for mandatory roadside Breathalyzer testing. Justice Minister Rob Nicholson favours the idea, and on Feb. 16 the federal Justice Department issued a discussion paper formally inviting public feedback. But the relevant section of the paper makes no explicit mention of an important obstacle to what the Australians call RBT (random breath testing): the Canadian Charter of Rights and Freedoms.

RBT was relatively simple to introduce in Australia, which had and has no equivalent to the Charter, in the 1980s. (Criminal law is reserved to the states under the Australian constitution. The state of Victoria, where Stribopoulos was stopped, adopted a human rights charter in 2008, but it covers only new laws and provides no avenue of legal action for private citizens.) In Canadian law, random vehicle stops are recognized as a form of Charter-violating arbitrary detention, but the Supreme Court has ruled—most notably in the 1990 Ladouceur decision, which the discussion paper highlights—that such checks are “reasonable limits” to personal freedom under Section 1.

What the paper doesn’t say is that Ladouceur was a close call, decided 5-4. The random checkstops we have come to tolerate were characterized, in a fairly scathing dissent authored by Justice John Sopinka, as “a total negation of the freedom from arbitrary detention guaranteed by Sec. 9 of the Charter.” Meanwhile, the majority in Ladouceur considered checkstops “reasonable” for Section 1 purposes precisely because they are relatively non-invasive. “Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle,” wrote Justice Peter Cory. “Once stopped, the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.” RBT is, by definition, a “more intrusive procedure” undertaken arbitrarily. Ladouceur, far from supporting RBT, would almost seem to rule it out.

On the other hand, the decision is two decades old. Notions of “privacy” and “intrusiveness” are somewhat fluid, and lawyers have learned not to gamble on constitutional questions that ultimately depend on Section 1 analysis. “Clearly, requiring drivers to furnish breath samples is much more intrusive than simply requiring them to stop their cars,” ventures Stribopoulos. “The case could go either way, but if I was a betting man, I would say the odds are 60-40 that it will be found unconstitutional. I think the majority of judges at the Supreme Court would think it goes too far.”

The McLachlin Court has been far from deferential to the police. It has ordered several acquittals on issues related to searches and detentions, taken a broad view of an accused’s right to remain silent, and reined in the use of sniffer dogs to detect contraband. Steven Penney, who teaches criminal procedure at the University of Alberta law school, is less eager than Stribopoulos to hazard a guess on the odds of RBT passing muster, but he notes that Sopinka’s warnings about arbitrary police power may have grown in relevance. “That particular dissent, a lot of people would describe as a particularly powerful and compelling one,” he says. “Sopinka alluded to the problems of arbitrary and potentially discriminatory enforcement. To the extent that police officers may unconsciously be stopping drivers that fit certain criteria, [RBT] would give them one more tool in the arsenal.”


A judgment call

  1. Harper's people have a lot of advisors that worked for John Howard, the ex-Aussie PM, and it shows with this stupid trial balloon. This type of idiotic infringement of rights would never be tolerated here.

    Of course, MADD and the other punishment pimps will be all over this one.

    • Another drunk responds. Must be early in the day, you can still type.

      • If I can randomly be pulled over and given a breathalyser with no probable cause, we might as well abandon the notion that we are a free country. People like you really need to get a grasp on what freedom means. If this goes through, what's next? Random home inspections to make sure you're feeding your kids enough vegetables and not letting them play violent videos games?

  2. I realize it is a close call for many people. "If you haven't been drinking, then you shouldn't care." But it's the randomness of it that bothers me. Why are we wasting time and resources randomly pulling people over to see if they have been breaking the law. Why not put the effort into identifying people who are probably breaking the law and pulling them over. RBT are a waste of resources and a complete bother to innocent citizens (and far more than one of these innocent civilians is going to be totally freaked out by this firmly administered arbitrary test).

  3. The article fails to mention that RBT has, in fact, significantly reduced road deaths in Australia from impaired driving.

    The theory is that the randomness will help to catch and/or put fear into the chronic alcoholics, the kind of folks who are driving blotto at 11 AM on a weekday. (There are a lot more of them than you might think.) The current approach on impaired driving has dealt with "nice" people who are now justly afraid to have that extra drink before going home after a dinner party, but chronic alcoholics don't respond well to those social pressures, and many of them are very adept at hiding their drinking.

      • Canada's so called '"Charter" is a poor puling thing compared with, for example, that of the USA. In fact, it appears to have found its true mission as a whinger's bible, or a handbook for the politically ultra correct metropolitan liberal froth which gets the country widely sneered at in genuinely enlightened society.

    • Using results-based analysis for criminal provisions is dangerous for what the state could justify with such a rationale.

  4. Random breath testing is a human rights violation and also useless in reducing drunk drivers. Less than 2% of drivers tested turn out drunk. The solution that government won't impose is the penalty issue. A 0% alcohol limit, seizure and forfeiture of the vehicle (no matter who the owner is) if over the limit, mandatory jail on first offence and loss of licence for at least 5 years. Result, no drunk driving convictions within 6 months.
    Right now people have the right to drink to the 0.05% limit (mostly by guess), get a small fine, almost never jail unless they kill someone, and only lose their licence, for a short time, after multiple offences. And we wonder why the number of people killed or injured by impaired drives has not changed in decades.

  5. Statistics indicate that about 2000 persons are killed in vehicular accidents on canadian roads every year involving intoxicated drivers. How would you like to be one of them ? Oh, I see, accidents happento other people! Welcome to the club of the stupidly naive ! May the next drunk behind the wheel hit YOU instead of me! But seriously, should we really keep our collective heads stuck in the sand and let this Russian Roulette on the road continue? Just so that our Personal Rights will not be compromised? Why are we not on the barricades against rights infringments when going through security at an airport? Because we do not have a right to fly as little as we have a right to drive a car.Both are priveleges that can be withdrawn if we do not follow the rules. With flying a breach of rule is comparatively easily detected; a drunk driver usually gets away with this breach of rule because Police can only stop him if his driving becomes clearly erratic. Considering that about one million people are in the air at any one time and that loss of life caused by air terrorists is very small, it is hard to grasp how any person with a functioning brain in his head would object to random Police checks ! And I mean checks for alcohol only, not the whole shooting match from wipers to taillight. The main objective has to be to reduce drunk-driving accidents by 95%. And the only way to do this is to get the message through to the drunks that they will be caught. And frequent spot checks are the only way to achieve this. Just look at the success of airport security.

    • I agree with Lutz. I am a fan of the Charter but there must be some balance. 2000 needless deaths per year is inacceptable. I am also a fan of alcohol consumption but zero tolerance would be the most intelligent answer to the needless carnage. It would be so elegantly simple, if you drink you do not drive period. Taxis, friends or reversion to our bi pedal ability is always available. Zero tolerance makes sense but the so called social drinkers like idiot smokers will claim bloodly murder.

  6. I think the Charter is pretty useless one way or the other (and the fact that things like this are reliant on the whims of judges is supports that notion) but I'd have to agree that citizens of a free country shouldn't be subject to RBT (or even random stops).

    What do you do if someone refuses to be detained on the grounds that they haven't done anything wrong and there is no reason to think they have? Arrest them (which used to mean "stop" them) for resisting a capricious demand that they stop?

  7. I would argue that accidents are caused by stupid people/bad drivers, drunk or sober. Sadly, as Texas comedian Ron White observes, "you can't fix stupid". No amount of law-making will fix the problem, it will only further empower "the State as God" meme. Everytime some well intentioned person cries to the state "there oughta' be a law" the state is only too willing to comply. I do not mean to deny the tragedy of those who have lost loved ones, but life is dangerous. But I am terrified of the arbitray imposition of the "lowest common denominator" mentality to complex problems. We are either free, or we are not…like virginity, freedom is an unambiguous state, with only two possible answers. I am reminded of a famous phrase from the American Revolution…he who would sacrifice his freedom for his safety deserves neither and will soon lose both…amen.

  8. I say, people have the right to drink and drive and kill or hurt anyone they want. It is in the Charter of Rights; maybe not in those words exactly, but it is there. Let them do so. It is only human life at risk. Not a big deal at all. A DRUNK'S right to drink and drive MUST be UPHELD!!

  9. The solution to the problem is to privatise the roads. Let the owners decide the rules. A free market will sort out what's important to us, the consumers.

    The Canadian govt. has focussed on driving while drunk. Well, some drunks are very dangerous. Others not. Fatigue is dangerous. Inattention is dangerous. Speeding is dangerous. Slow reflexes are dangerous. Running red lights is dangerous.

    Giving cops more authority is not the answer. They're good at tasering Poles to death, and kicking people when they're down, but they're not very competent at preventing crime, especially their own.

    • Canadian Charter of Rights and Freedoms recognizes under common law that highways are a right and so one cannot privatize a public highway

  10. Do we want to allow the police to pull over young women on some dark street at 1:00 in the morning? Would people want their daughters or wives pulled over, knowing they had done nothing wrong just for a random test?