National Post (National Edition)
IF POLICE CAN BREATHALYZE ART, 70, FOR RETURNING EMPTIES, WHAT WILL THEY DO TO YOU?
Global News published a neat sign-of-thetimes story on Tuesday: Art, last name withheld, 70 years old and from Streetsville, Ont., reports recently being pulled over by the local constabulary and ordered to provide a breathalyzer sample on pain of arrest. The officer’s stated reason, by Art’s account: at the Beer Store Art had just returned for refund what the officer considered “an excessive amount of bottles.”
Art was sober as a judge, but he cries foul: “They shouldn’t have that right to pull a person over unless there is a good sign the person is doing something wrong.”
Art sounds like a reasonable guy. I imagine a fair number of readers agree with Art, and would be surprised to learn that the simple act of recycling could be grounds for police to jam a doohickey in their mouths. In fact, though, thanks to Bill C-46, which recently came into effect, cops no longer need any reasonable grounds to suspect impairment before demanding a breathalyzer test. So long as they pull you over legally, you’re fair game — and police have virtually unlimited legal powers to pull you over.
Global chalks Art’s situation up to C-46, but I’m not sure that’s right. An officer suspecting impairment always had the power to stop and breathalyze. The basis for this officer’s suspicion happened to be ridiculous, but presumably that would be a matter for a judge.
What C-46 might well be doing, however, is emboldening a certain kind of police officer to further test the limits of what constitutes both legitimate suspicion of impairment and a legal traffic stop.
There was certainly no shortage of voices warning the Liberals — the “party of the Charter” as Paul Martin famously called them — that they were straying into dangerous moral and constitutional territory.
“Let’s just cut to the chase here,” criminal lawyer Michael Spratt told the Commons committee reviewing the bill prior to its passage. “There will be nothing random with this breath testing. … Visible minorities are pulled over by the police more often for no reason. That’s what is going to happen here.”
Indeed. It is 100 per cent guaranteed. And everyone from the justice minister to the pro-c-46 Toronto Star editorial board will pretend to be shocked by it.
Then there’s Section 320.14 of C-46, which establishes the offence of being impaired by alcohol or drugs within two hours of having operated a vehicle. Some lawyers predict folks like Art will soon get knocks at the door from officers demanding a breath sample on grounds someone (legitimately or maliciously) reported them driving erratically, or get tapped on the shoulder at the bar they drove to before downing six pints, never mind if they intended to cab it home.
True enough, the Criminal Code lets Art off the hook if he consumed all that alcohol after driving — but it also lobs the burden of proof into Art’s court. Art must have “had no reasonable expectation that (he) would be required to provide a sample of breath or blood,” and he must provide evidence that his blood-alcohol content “is consistent” with his having been under the legal limit while operating the vehicle.
Presumably Art’s highpriced lawyer will be able to handle this. Presumably yours will as well.
Meanwhile, over at Tvontario’s The Agenda, Const. Andy Pattenden of York Regional Police expressed his dismay that as many impaired driving charges as his force is laying, they’re only catching a fraction of the number of impaired drivers. He lamented that the numbers don’t seem to be going down, even after the highly publicized case of Marco Muzzo, the billionaire’s failson who stumbled off a private jet from his Miami bachelor party and promptly T-boned a minivan, killing three children under 10 and their grandfather.
Muzzo blew at more than three times the legal limit. Yet Pattenden somehow found his way to arguing we ought to lower the limit to zero.
I wouldn’t put it past this government, which seems determined to crack down on the least-impaired drivers. But those drivers are simply not a useful place to devote resources. In 2014, according to Traffic Injury Research Foundation statistics, 864 fatally injured drivers were tested for alcohol consumption. Of the 283 who tested positive, threequarters were over the legal limit; more than half were over twice the legal limit.
Those ratios have stayed relatively constant even as the raw numbers of traffic deaths, alcohol-related and otherwise, have declined hugely. The most drunk drivers remain, unambiguously, the greatest menace. They are the easiest to catch. And when we catch them, we continue to coddle them outrageously. Muzzo’s 10-year sentence, at least, is no joke — but the fact he’ll get his driver’s licence back is a sick one.
We don’t have to choose, of course. We could crack down on very drunk drivers and also dispense with various frivolous freedoms in pursuit of not-dangerous people who had a beer with lunch or a glass of wine at dinner. But for God’s sake, why would we do that to ourselves?