Police can’t justify legal shortcuts to nab drunk drivers

In Canada, of course, criminal law is implemented by government and enforced by the police. That is to say, police do not create laws.

That’s not to say that all laws are enforced exactly the same, though. So while the Calgary Police Service is not responsible for the existence of Canada’s new impaired driving law, it is fair to judge them on how they choose to enforce it.

Calgary police last week very publicly announced an expansion of their “mandatory alcohol screening” program. The name is a little misleading since it has always been mandatory for a motorist to comply with an officer’s demand to provide a breath sample. And while Ottawa has removed the requirement of reasonable suspicion before making such a demand, it is in no way mandatory for an officer to do so.

It would be more accurate to describe this as a universal alcohol screening program. Calgary police want it to be known that every motorist who comes into contact with an officer will be expected to provide a breath sample. All frontline officers will be equipped with screening devices.

That contact would primarily come through traffic stops and Checkstops, but it would be naive to think that’s the extent of it. Police officers are expected to have a reason for pulling a vehicle over, but they have wide latitude when it comes to their power to do so.

Take the case of Victoria, B.C. resident Norma Mcleod, one of the Canadians who have launched a constitutional challenge against this new law.

Last February, Mcleod, 77, was pulled over after a police officer watched her exit a liquor store with a bag. That was all it took for the officer to stop her vehicle and demand a breath sample.

Mcleod, though, is a mouth cancer survivor who also has COPD. Due to those factors, she was physically unable to blow hard enough to produce a breath sample.

It didn’t matter. The officer decided on the spot that her vehicle would be impounded and she would lose her licence for 90 days. That meant a $900 impoundment fee, a $500 fine, a $250 licence reinstatement fee and a $930 safe-driving course. All of that despite the fact that there was no indication at all that she had been drinking, let alone been impaired. (The prohibition was eventually rescinded on appeal.)

And while Alberta’s rules differ somewhat from B.C.’S, we do have our own version of the immediate roadside suspension program. It’s quite possible that we could see similar cases here in Calgary.

Moreover, the manner in which Calgary police are going about this makes it quite likely that we’ll see additional constitutional challenges.

The issue here is the fact that demanding a breath sample constitutes a search. We all want the police to catch the bad guys, but that doesn’t justify legal shortcuts.

Section 8 of the Charter of Rights and Freedoms makes it clear: “Everyone has the right to be secure against unreasonable search or seizure.”

In a landmark decision 25 years ago, the Supreme Court of Canada ruled that the requirement of reasonable suspicion constitutes “not only a statutory precondition to a breathalyzer demand but also a touchstone of the Charter … under (Section 8).” In noting that, the Supreme Court was making it clear that “reasonable and probable grounds” was an important check and balance to the otherwise broad powers police have.

Obviously, police forces can’t anticipate which laws the Supreme Court might strike down.

Governments are the ones who deserve blame when unconstitutional laws are passed.

There is, though, the possibility of an erosion of public confidence in our laws and those who enforce them. In that context, police tactics and priorities definitely matter. In this case, Calgary police may be significantly overestimating the public’s tolerance for arbitrary searches, which could have more serious long-term implications.

This is a problematic approach to a problematic law. Half of that rests on the Calgary Police Service.

“Afternoons with Rob Breakenridge” airs weekdays 12:30-3:30 p.m. on 770 CHQR; rob.breakenridge@corusent.com; Twitter: @Robbreakenridge