Why you should worry about new impaired law
The veil of grief and the badge of noble intent aren’t guarantors of improved policymaking — as with the federal Liberals’ reforms to impaired driving legislation.
Between 1986 and 2015, there was a 65 per cent drop in impaired driving rates, says Statistics Canada. Nevertheless, around 1,000 people are killed annually and 60,000 injured, according to the estimates of Mothers Against Drunk Driving.
To change that, the Liberals propose allowing police to demand breath samples whenever they pull someone over, without having to believe the driver is impaired.
While one shudders at the prospect of defending drunk drivers, this is a radical change that will force many to submit to breath testing without justification, and will affect minority groups disproportionately.
“Yes, there are people that are being injured and there are people whose lives are being lost, and that’s incredibly tragic, but we can’t put that ahead of the Charter (of Rights and Freedoms),” Vancouver lawyer Kyla Lee told the House of Commons justice committee last Wednesday.
The change would upend a longstanding legal standard that officers must be reasonably suspicious there’s impairment before breathalyzing somebody.
The Liberals’ justification is that half of drunk drivers get away with it, even if police stop them. The studies the government cites for this statistic are from between 1986 and 1997, relatively early days in the major fight against impaired driving. Even if the numbers are right, the planned changes are troubling.
“Reasonable suspicion” is quite a low bar for police.
In June, Justice Minister Jody Wilson-Raybould told the committee studying the bill that mandating breath tests was “similar to the way (drivers) are now required to produce their licence and registration,” ignoring that this checks one’s wallet and glovebox, and not their innards. In 2015, the Supreme Court said breath demands are “more intrusive than a demand for documents,” and amount to “the use of a person’s body without his consent to obtain information about him.”
While there are concerns about constitutionality, Canada’s courts are pretty friendly to legislation designed to stop impaired driving. Peter Hogg, one of Canada’s top constitutional scholars, told the committee courts would accept the violations because they make roads safer.
But that can’t be the only analysis. It’s undisputed that policing practices unequally affect minorities. The Ottawa police’s traffic stop data, released last October, showed that black and Middle Eastern drivers are disproportionately pulled over, which is “consistent with racial profiling,” according to the Ontario Human Rights Commission.
“Some people are just subject to a lot more police scrutiny than others,” says Cara Zwibel of the Canadian Civil Liberties Association. “They’ll be now subject to this additional intrusion of having a breath sample taken.”
This could, say lawyers, mean getting taken out of the vehicle, questioned and, perhaps, cuffed and placed in a police cruiser — all in public view. “As a Métis person I am very concerned about how this is going to affect people from the Aboriginal community,” Lee told the committee. “We see in B.C. already basically an offence of driving while native, and that’s only going to get worse.”
Just because something is constitutional doesn’t mean it’s right.
Yes, drunk driving is horrific. But can parliamentarians tolerate a law that reorients civil liberties and sets out a new way to over-police minority groups?
They shouldn’t.