Canada: Experts thought mandatory roadside breath-testing would be unconstitutional, but Canadian judges say otherwise

National Post
Author of the article: Brian Platt
October 25, 2021 

It will soon be three years since Canada enacted a controversial law that allows police to breath-test any driver without needing suspicion of drinking — a law many experts argued was certain to be struck down as unconstitutional.

At least so far, Canadian courts have proven those experts wrong.

There have now been at least six cases across four provinces where Charter challenges were brought against mandatory alcohol screening, and each time the new law was upheld as constitutional. The judges have agreed with the government’s essential argument that too many drunk drivers escape detection when police need suspicion for a search, and that requiring a breath test is a minimal impairment on rights.

“I find that the (mandatory screening) procedure is far less of an infringement than is routinely found at airports or courthouses and enjoys a very high level of acceptance among the public,” wrote Nova Scotia Judge Rosalind Michie in a recent case, R. v. Brown .

“The salutary effects of the legislation are clear, and may become more apparent with the passage of time. It will increase detection and deterrence of drinking and driving and thereby decrease the loss of life, injury, property damage and overall social cost that it too frequently still causes.”

The new law, known as Bill C-46, took effect on Dec. 18, 2018. Many police forces in Canada now have a policy of breath-testing every single driver they pull over.

Bill C-46 did not create a new traffic stopping power for the police. But contrary to popular belief, Canadian police are already allowed to pull over any driver if their purpose is checking for sobriety. Police do not need another reason for the stop, such as a broken tail light.

This means Canadian police are now able to pull over any driver at any time and conduct a mandatory roadside breath test. Refusing the test comes with the same extremely serious penalties as being charged with impaired driving, including an immediate driver’s licence suspension.

When Parliament was considering the legislation, expert witnesses gave substantial arguments on both sides of the debate on whether mandatory screening is constitutional. Police associations were adamant this was a necessary new tool, but other legal groups said the law sets a dangerous precedent for eroding civil liberties, and would likely lead to racialized people being disproportionately targeted.

“The requirement that government justify its forced intrusion into a particular individual’s private life is a fundamental premise of a free and democratic society,” said the Canadian Civil Liberties Association in its submission. “(Mandatory screening) represents a significant departure from standard policing expectations in democracies. It also represents a departure from constitutional norms.”

But so far, judges in provincial courts have swiftly rejected arguments that this new law goes too far. This includes cases in Alberta, Saskatchewan, Ontario and Nova Scotia.

In an Ontario case called R. v. Blysniuk that has quickly become influential, Justice Krista Lynn Leszczynski ruled on a Charter challenge of a mandatory screening conducted near the city of Sarnia on Dec. 22, 2018 — just four days after the new law took effect.

The driver was pulled over to check on a peeling rear licence plate, but the Ontario Provincial Police constable also immediately informed him that due to it being the holiday season and a Saturday night, all drivers were being breath-tested.

The driver failed the roadside test and was arrested; he later registered a breathalyzer reading of 140 mg of alcohol in 100 ml of blood, well over the 80 mg limit.

In her ruling, Leszczynski accepted the Crown’s argument that suspicion-based testing lets too many impaired drivers slip through undetected “as a result of an officers’ general inability to reliably observe indicia that a driver had alcohol in their body during routine traffic stops.”

“The test result reveals nothing about the individual other than their blood alcohol concentration in the context of the highly regulated and dangerous activity of operating a motor vehicle,” Leszczynski went on. “It takes place in the context of a lawful stop and in circumstances where the officer is already justified in detaining an individual for the purposes of investigating their sobriety … As such, (mandatory screening) is reasonable and demonstrably justified in a free and democratic society.”

Ultimately, the constitutionality of mandatory screening won’t be settled in Canada until the Supreme Court of Canada weighs in. But that is likely many years off, given no cases have made it to a provincial appellate court yet.

However, there is still one type of case the courts haven’t yet weighed in on: when someone with a medical disability is unable to blow, but is still criminally charged with refusal despite showing zero signs of impairment.

In one well-known case in B.C., 77-year-old Norma McLeod was charged with refusaleven though she had a mouth prosthesis and a chronic lung condition, and there was no evidence she had consumed alcohol. Her Charter challenge has been delayed due to the pandemic, but is scheduled to be heard in February.

“My primary concern about Ms. McLeod’s case is that the court will overemphasize the need to deter impaired driving and underemphasize the individual rights protected by the Charter,” said McLeod’s lawyer, Jenn Teryn.

“Obviously impaired driving is dangerous and should be strongly discouraged, but Ms. McLeod’s case is a perfect example of how a well-intentioned law can overreach and disproportionately impact some of the most vulnerable members of Canadian society.”