Random breath samples defended

Lawful under charter, posits justice minister

Demanding a breath sample from a motorist is no different than asking for their licence and registration, Canada’s justice minister argued Thursday as the federal Liberal government defended its proposed new crackdown on impaired driving.

Jody Wilson-Raybould tabled a so-called “charter statement” in the House of Commons comprising the arguments why the government believes the new measures are permissible under the Charter of Rights and Freedoms.

“The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety,” Wilson-Raybould’s statement says. “The information revealed from a breath sample is, like the production of a driver’s licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated contexts of driving.”

Bill C-46, which includes new powers for police and harsher penalties for driving under the influence of alcohol or drugs, was introduced in the Commons last month alongside the government’s long-awaited plan to legalize marijuana for recreational use.

The new mandatory alcohol screening measures would mean police could demand a breath sample from any driver they lawfully stop — even if they had no suspicion the person had been drinking before being pulled over.

The roadside test itself could not lead to a charge, but it would allow the police to continue investigating and to subject the driver to further testing.

The bill would also allow police to demand a saliva sample from a driver if they reasonably suspect the person has drugs in their body, such as by noticing unusually red eyes, abnormal speech patterns or the telltale scent of marijuana.

The proposed legislation has raised eyebrows among some criminal lawyers, who believe it will be challenged in court.

The statement outlines why the Liberal government considers the new powers to be consistent with what the Charter of Rights and Freedoms guarantees about search and seizure, as well as life, liberty and security of the person.

The statement does come with a major caveat: “A statement is not a legal opinion on the constitutionality of a bill.”