An Ottawa police officer interviews a driver during a December 2009 RIDE check. Rules for when people can be breathalyzed are being eased by the federal Liberals, writes Tyler Dawson.

The veil of grief and the badge of noble intent aren’t guarantors of improved policymaking. Just because a law is meant to do good – as with the federal Liberals’ reforms to impaired driving legislation – doesn’t mean it will. 

Between 1986 and 2015, there was a 65-per-cent drop in impaired driving rates, says Statistics Canada. Nevertheless, around 1,000 people are killed annually in Canada, and some 60,000 injured, according to the best estimates of Mothers Against Drunk Driving. 

To change that, the Liberals propose allowing police to demand breath samples whenever they pull someone over, without having to believe the driver is impaired. (This applies only to drunk, not drugged, driving.) 

While one shudders slightly at the prospect of defending drunk drivers, this is a radical change that will force many Canadians to submit to breath testing without justification, and will disproportionately affect minority groups. 

“Yes, there are people that are being injured and there are people whose lives are being lost, and that’s incredibly tragic, but we can’t put that ahead of the Charter (of Rights and Freedoms),” Vancouver lawyer Kyla Lee told the House of Commons justice committee last Wednesday.

The change would upend a longstanding legal standard that officers must be reasonably suspicious there’s impairment before breathalyzing somebody. 

The proposed law, in contrast, “is authorizing a random, roving stop and search by police, and that’s just a big departure from what we’re used to in Canada and it’s not the kind of thing we think should be done,” says Cara Zwibel, with the Canadian Civil Liberties Association. 

The Liberals’ justification is that some 50 per cent of drunk drivers get away with it, even if police stop them. The studies the government cites for this statistic are from between 1986 and 1997, relatively early days in the fight against impaired driving (though it has been against the law to drive inebriated since 1921). Even if the numbers are right, the planned changes to police powers are troubling.

The thing is, “reasonable suspicion” sounds pretty serious, but it’s actually quite a low bar for police. Unbelievably, in June, Justice Minister Jody Wilson-Raybould told the committee studying the bill that mandating breath tests was “similar to the way (drivers) are now required to produce their licence and registration,” ignoring that this checks one’s wallet and glovebox, and not their innards. In 2015, the Supreme Court said breath demands are “more intrusive than a demand for documents,” and amount to “the use of a person’s body without his consent to obtain information about him.”

While there are concerns about the constitutionality of the bill, Canada’s courts are pretty friendly to legislation designed to stop impaired driving. Peter Hogg, one of Canada’s top constitutional scholars, told the committee courts would accept the violations because they make roads safer. 

But that can’t be the only analysis. It’s undisputed that policing practices unequally affect minorities. The Ottawa police’s traffic stop data, released last October, showed that black and Middle Eastern drivers are disproportionately pulled over, which is “consistent with racial profiling,” according to the Ontario Human Rights Commission. 

“Some people are just subject to a lot more police scrutiny than others,” says Zwibel. “They’ll be now subject to this additional intrusion of having a breath sample taken.”

This could, say lawyers, mean getting taken out of the vehicle, questioned and, perhaps, ‘cuffed and placed in a police cruiser – all in public view. “As a Métis person I am very concerned about how this is going to affect people from the Aboriginal community,” Lee told the committee. “We see in B.C. already basically an offence of driving while native, and that’s only going to get worse.”

So the law, if passed, may not be unconstitutional. Many laws, as the late U.S. Supreme Court justice Antonin Scalia was fond of pointing out, are stupid but constitutional. The corollary is that just because something is constitutional doesn’t mean it’s right. 

Yes, drunk driving is horrific. But can parliamentarians tolerate a law that reorients civil liberties and sets out a new way to over-police minority groups?

They shouldn’t.

Source: Ottawa Citizen 


Last updated on: 2017-10-31 | Link to this post