New random breath testing will turn everything into an airport

Provision under Bill C-46 is ripe for a charter challenge, Colby Cosh writes.

Bill C-46, the Liberals’ revamp of impaired driving in the Criminal Code, became law on June 21.

But I haven’t been able to stop thinking about it, partly because I wonder if detainees who will one day bring charter challenges against its various provisions have already, somewhere out there in the vast expanse of this land, had their historic run-ins with the law. The main purpose of C-46 is to amend our criminal law to allow for the investigation and punishment of driving under cannabis influence but, as an odious bonus, the law also removes the requirement for cops to have cause for suspicion before submitting drivers to alcohol breathalyzers.

I suppose I am dwelling on C-46 because I have a bad conscience. I write about marijuana and the law as often as I write about anything in particular, and even the best of us in the newspaper business are prisoners of grand narrative. This is the Year of Cannabis in Canada. The “mandatory alcohol screening” provision in C-46 has thus received less attention.

And this is not because criminal defence lawyers have not been raising holy hell about it. The Canadian Bar Association criminal justice section’s official advice on the subject of random breath testing was that it is, constitutionally, for the frickin’ birds. The old check-stop procedure, requiring an officer to have reason for suspicion before making a breathalyzer demand, is acknowledged in our case law to be a violation of the charter, but it is a violation deemed to meet the tests for reasonability. Invasive searches of persons chosen at random would, by contrast, seem to defy the reasonability rules in R. vs. Oakes almost on their face.

The Oakes test says measures that violate our charter rights must not be “arbitrary.” A procedure that incorporates randomness by design would seem to present obvious problems. Moreover, violations of the charter have to be “minimally impairing ” to pass the test. That is surely going to be a problem for any streamlining or intensifying of an established criminal procedure because the old rule being superseded gives a court a convenient minimum with which to contrast the new rule.

Supporters of random breathalyzer testing insist that the randomness is a feature, not a bug.

There is, the argument goes, bound to be less elbow room for racism or other prejudices if drivers are detained and tested randomly. But do we really expect the police to select the locations of the new-style check stops at random?

I have trouble believing that random breath testing will survive charter analysis if it comes before the Supreme Court. This is an issue with some potential to bring woke liberals and cranky libertarians together. Another defence of C-46’s breathalyzer provisions, provided recently by Robert Solomon and Erika Chamberlain in the Canadian Criminal Law Review, is that Canadians are already subject to search of the person, without charter fuss, in settings like airports, border crossings and courthouses.

Reducing drunk driving is arguably a much more pressing concern of the state than anything that these tolerated searches might prevent. (Although what makes a previously unthinkable policing method suddenly imperative in 2018 – with automotive fatality rates per registered vehicle already cut in half over the last 20 years – is not explained.)

So, hey, why not extend the legal regime that applies in an airport to the interior of your Subaru?

This is surely the sort of argument that will only sound convincing to someone who had already decided to agree with it. To one who does not, the mere mention of airports and border crossings can only induce a nearfrenzy of civil-libertarian rage.

As a society, we consent to be treated like livestock in airports because preventing airborne terrorism, at some particular point in time, seems extremely urgent and legitimate.

Eventually, someone happens along to point out that a lot more folks die on regular roadways than from bombs on planes, so why not treat drivers in the manner of air passengers?

And so we are punished for the indignities we previously agreed to overlook: they become active pretexts for the next one.