Is our justice minister laughing at us?

Back in the bad old days, under the Conservative federal government we rejected in 2015, there was a very popular complaint that the Tories liked to waste time and money by creating statutes they knew the courts would chuck out for Charter reasons. Anybody remember this? You seen any of those people lately? I mostly hear a hushed, ghostly silence in these days of enlightened Liberal government.

This silence seems particularly interesting in view of Bill C-46, the government’s effort to create a framework to detect and punish drug-impaired driving and to “modernize” the law on alcohol impairment. C-46 would, for the first time, allow the police to require breathalyzer samples from drivers at the roadside without having other “reasonable grounds” for suspecting impairment.

Justice Minister Jody WilsonRaybould is confident that the change will survive Charter scrutiny: she told the Commons justice committee on Tuesday that assembly-line breath testing was “minimally intrusive” but promised that “that the benefits in lives saved will be immeasurable.”

I feel sure that, given a moment to reflect, she would take back the “immeasurable” part. When the time comes, courts reviewing automatic alcohol screening will want to hear precisely the opposite from Justice Department lawyers: that the benefits are measurable and objective. But the claim that breath testing is “minimally intrusive” seems harder to justify as a mere figure of speech.

Canadian citizens may well ask: if breath sampling is minimally intrusive, why did we bother with this “reasonable grounds” nonsense for close to 50 years of drunk driving law? Why wasn’t the law designed to allow random breath sampling in the first place, if it raises no serious question about unreasonable search of the person? Is the Justice Minister having a laugh?

It’s an interesting piece of caginess. Wilson-Raybould can exude confidence about her bold counterfactual precisely because the “reasonable grounds” requirement is written explicitly into the Criminal Code sections on breathalyzer use, and has been there since blood alcohol limits were added to the Code in 1969. Early breathalyzers started to be deployed by Canadian police experimentally before this, but they got a rough ride in the courts until having a certain blood alcohol level was made an offence unto itself.

The public (and many judges) found breathalyzers hateful and suspicious — a harbinger of a chemical police state. With no Charter of Rights in place to protect citizens from arbitrary police intrusion, the government of Trudeau I was politically obligated to reassure the people by inserting strong, explicit language requiring “reasonable grounds” into the Code itself.

That is part of what has made the drunk-driving part of the Code so anomalous and complex now. When you are writing legislation in a post-Charter world, you don’t need to specify that the police have to observe personal freedoms that have existed in the English-speaking world for centuries. Nowadays we are a little sleepier. We trust the courts to exercise the strong revision powers we gave them when we patriated the Constitution.

What this means is that there has never been much Charter-testing of whether a breathalyzer is analogous to a search, or whether it can be justifiable under the Charter to require drivers to give a breath sample without probable cause. There is certainly a mountain of case law about the “reasonable grounds” for a breathalyzer test. Hundreds of lawyers have made nice livings knowing their way around that mountain. But with the “reasonable grounds” requirement written into the Criminal Code by Parliament, it has never been usual or necessary to invoke the Charter in these cases. That allows Wilson-Raybould to fantasize without fear of contradiction.

With due respect to her credentials and her army of elite opinionmongers — none of which seems to have counted for much, as I say, when we had Conservative justice ministers — I noticed when I was sampling 50-plus years of judicial drunk-driving decisions that judges before and after the Charter often commended the “reasonable grounds” requirement as an obviously positive and necessary feature of the law.

Courts before and after the Charter have endowed the police with broad rights to pull over a motor vehicle, even more or less randomly, and they have recognized that roadside screening devices have a different status from the more formal breathalyzer tests that the police can use to convict you. Refusing a roadside breath test remained a per-se offence after the Charter was introduced, and you are not entitled to legal counsel immediately if you come under reasonable suspicion during a regular checkstop. That suggests that Wilson-Raybould’s optimistic view of roadside breath screening may survive.

But in the case law, the existing structure is always described by judges as a “balance,” and always admiringly. Wilson-Raybould would have you believe that we now know better: that this universal respect for the previously existing “balance” was just a half-century of ignorant tomfoolery. This, at least, would seem to be a necessary premise behind doing away with it. And does it really conform to our ordinary understanding of English to describe sticking a scientific instrument in one’s mouth, on pain of detention, as “minimally intrusive”? Can she perhaps have meant “maximally”?