Canada Proposes Tougher Drinking and Driving Law
Police to Get Power to Conduct Random Breathalyzer Tests
Oct 8, 2009
Under existing law, police have the right to randomly stop vehicles in order to determine if the driver has been drinking. But in order for a police officer to demand that the driver supply a suitable breath sample or samples, the officer must have a reasonable suspicion that the driver has alcohol in his or her system. The proposed amendment to the Criminal Code would do away with that requirement and greatly expand the power of police.
Since drinking and driving went from a being socially acceptable practice to being considered a serious criminal offence, many current offenders are the hard core drinkers who see nothing wrong with getting behind the wheel while impaired. And it is the experienced drinker who is best able to hide the symptoms of impairment from a police officer conducting a random stop. Requiring all drivers who are stopped to provide breath samples would be sure to catch more people who are in no condition to drive.
Law Would Reduce Deaths Caused by Drunk Drivers
The proposed legislative change is being heralded in many quarters. While the opposition parties characterize most criminal law amendments put forward by the governing Conservatives as too draconian, this suggested toughening of drinking and driving laws appears to have all party support. Victims’ organizations such as MADD Canada and the general public support the move. According to the National Post, deaths caused by drunk drivers dropped 36% in some Australian states and 23% in Ireland when the ability of the police to demand random breath samples was legislated.
Critics Argue Proposal Unconstitutional
But the proposal to give the police more power over citizens also has its critics. Criminal defense lawyers and civil libertarians argue that permitting random breath tests without a suspicion on the police officer’s part is unconstitutional; a violation of the rights of Canadians to be free from arbitrary detention and unreasonable search and seizure. The same argument was made when police began to conduct random stops for the purpose of determining whether or not a driver was under the influence of alcohol. The Supreme Court of Canada held that although these random stops did amount to arbitrary detention, that detention was justified under the Charter of Rights. The period of detention was short and the inconvenience to innocent drivers was outweighed by the danger to the public by those who drink and drive.
The current proposal is of different than merely being stopped on a random basis. Police can require people to provide possible incriminating evidence against themselves by providing samples of their breath when police do not even have a reasonable suspicion that they are breaking the law. The danger in passing this type of law is that it could lead to a slippery slope where peoples’ rights to be free from arbitrary detention and unreasonable search and seizure will be compromised in other situations.
Taking Away Rights Could Lead to a Slippery Slope
Drinking and driving offences are not the only actions that can lead to innocent people being seriously injured or killed. Notwithstanding studies that indicate violent crime is decreasing, gun murders occur all too often in Canada’s major cities. If drivers can be stopped randomly and be required to give samples of their breath, why shouldn’t police be able to randomly stop people, for example young people coming out of clubs at 2 a.m. and search them for guns and other weapons? A quick pat down search would take no more time than providing breath samples would take; And the rationale would be the same; the potential to save others from serious injury or death.
There is an Alternative to Random Breath Tests
There is another alternative to random stops. Taking part in an argument in the National Post, David Asper suggests that the same goal could be accomplished by making ignition interlock devices mandatory in all vehicles. These devices require that the driver blow into a breathalyzer installed in his or her vehicle prior to turning on the ignition. If the amount of alcohol in the driver’s system exceeds the amount that the device is calibrated for, the engine will not start. Several jurisdictions require ignition interlock systems be used for a certain period of time after those who have been convicted of drinking and driving offences become eligible to drive again.
There are two arguments against this mandatory requirement. One is that it inconveniences drivers because they have to provide a sample of their breath before they put their vehicle in motion. But people will get used to it; the same argument was raised years ago when wearing seatbelts became mandatory. It took too much time to buckle up before driving away. But a more valid argument is the cost that would be added to the purchase of vehicles. Currently these devices cost from $50 to $100 to install and up to $100 a month to use. As with anything, if they were to become standard, the cost would come down. Although certainly not foolproof, use of these devices would protect people not only from impaired drivers but from unwarranted interference by the state.
If the proposed law is enacted one thing is certain. The legality of random breath tests will end up before the Supreme Court of Canada.
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