Racism lurks in im­paired driv­ing laws

National Post (National Edition) - - EDITORIALS -

Has the self-styled “party of the Char­ter,” as Prime Min­is­ter Justin Trudeau still, curiously, calls the Lib­er­als, ac­tu­ally even read the Char­ter? Have the Lib­er­als, for that mat­ter, paid much at­ten­tion to what their own prime min­is­ter has been say­ing?

Canada’s im­paired driv­ing laws un­der­went a ma­jor over­haul last month, cour­tesy of the fed­eral Lib­eral govern­ment. Some of the changes were nec­es­sary to rec­og­nize the changed re­al­ity of le­gal­ized cannabis. Oth­ers were sim­ply in­tended to fur­ther re­duce rates of im­paired driv­ing, by drug or al­co­hol, on our roads. This is a goal ev­ery­one shares — im­paired driv­ing is the lead­ing crim­i­nal cause of death in Canada, way ahead of any­thing else. It’s a stub­born prob­lem that gov­ern­ments are right to try to ad­dress, par­tic­u­larly a govern­ment that has re­cently le­gal­ized a whole new cat­e­gory of in­tox­i­cant.

But the new laws have given to po­lice sig­nif­i­cant new pow­ers. In a free so­ci­ety, that’s never some­thing to be done lightly. And in this par­tic­u­lar case, what is be­ing done is es­pe­cially bizarre be­cause the Lib­er­als are now in­sist­ing that such pow­ers will not be abused even while in­sist­ing, in a slightly dif­fer­ent con­text, that they in­evitably will be.

One of the new pow­ers given to po­lice is the right, un­der cer­tain cir­cum­stances, to de­mand a breath sam­ple from some­one who has not pro­vided any sign that they might be im­paired. Pre­vi­ously, a po­lice of­fi­cer needed at least some grounds to in­sist on such a test — the of­fi­cer could have ob­served er­ratic driv­ing be­fore pulling the car over, for in­stance, or sus­pected a whiff of al­co­hol on a driver’s breath. Un­der the new law, a driver stopped by po­lice for any law­ful rea­son what­so­ever (which is a very low bar) may be sub­jected to a breath test. Re­fus­ing to pro­vide one is it­self a crim­i­nal of­fence. Cana­di­ans ef­fec­tively have no choice but to com­ply.

This is a mean­ing­ful ex­pan­sion of po­lice search pow­ers, and it will ab­so­lutely be chal­lenged — hope­fully suc­cess­fully — as a vi­o­la­tion of Cana­di­ans’ fun­da­men­tal pro­tec­tions against un­rea­son­able searches. This is also an ex­pan­sion of po­lice au­thor­ity that the Lib­er­als were ex­plic­itly warned would re­sult in abuses of power, most likely tak­ing the form of ra­cial dis­crim­i­na­tion. “There will be noth­ing ran­dom with this breath test­ing,” de­fence lawyer Michael Spratt told a par­lia­men­tary com­mit­tee re­view­ing the bill be­fore it be­came law. “Vis­i­ble mi­nori­ties are pulled over by the po­lice more of­ten for no rea­son. That’s what is go­ing to hap­pen here.” The Cana­dian Civil Lib­er­ties As­so­ci­a­tion sounded a sim­i­lar warn­ing in its own fil­ing, writ­ing, “Ex­pe­ri­ence has also un­for­tu­nately demon­strated that ‘ran­dom’ de­ten­tion and search pow­ers are too of­ten ex­er­cised in a non-ran­dom man­ner that dis­pro­por­tion­ately tar­gets African-Cana­dian, In­dige­nous, and other ra­cial mi­nori­ties.” It con­tin­ued, “... the re­al­ity of ra­cial pro­fil­ing and the in­creased in­va­sive­ness that at­tends a manda­tory al­co­hol screen­ing means that the prac­tice will ad­versely im­pact those dis­pro­por­tion­ately tar­geted by po­lice for ve­hic­u­lar stops, in par­tic­u­lar African-Cana­dian, In­dige­nous, and other ra­cial mi­nori­ties.”

The ratch­et­ing-up of sys­temic racism might nor­mally be an is­sue you would ex­pect the glo­ri­ously woke fed­eral Lib­er­als to be fall­ing all over them­selves to fix, or at least to tweet pi­ously about. That’s not the case here. The Lib­er­als have read­ily ac­knowl­edged that they ex­pect that this new law will be chal­lenged in court, but say they will de­fend it, and are con­fi­dent it will sur­vive the chal­lenges.

There’s rea­son enough to be alarmed at the ex­panded use of po­lice pow­ers, even if they weren’t bound to be tar­geted dis­pro­por­tion­ately at ra­cial mi­nori­ties. Ran­dom, ground­less searches con­ducted by whim of the au­thor­i­ties are man­i­festly a gross vi­o­la­tion of Cana­di­ans’ fun­da­men­tal rights. Now that the law is fi­nally be­ing used, there are al­ready un­set­tling sto­ries of such manda­tory searches start­ing to emerge: Global News re­ported this week that a Toronto-area man, who was not in the slight­est bit im­paired, was given a breath test after a po­lice of­fi­cer ob­served him re­turn­ing empty beer bot­tles to a store for recycling, as if he’d knocked them all back on the way over in his car.

But the thing that makes this so es­pe­cially strange is how the Lib­er­als, not long ago, were em­brac­ing the very same ar­gu­ments they now say con­cern them not at all. Dur­ing the run-up to the le­gal­iza­tion of cannabis, no less an au­thor­ity on right-think­ing Lib­eral val­ues than Justin Trudeau him­self ex­plained that it was im­por­tant that Canada le­gal­ize cannabis be­cause of — wait for it — ra­cial fac­tors, that saw po­lice ap­ply­ing mar­i­juana laws with dis­pro­por­tion and dis­crim­i­na­tion against mi­nori­ties. The prime min­is­ter even shared an anec­dote about how his own late brother, Michel, after be­ing ar­rested for pos­ses­sion of cannabis, was able to have that charge qui­etly taken care of. It helps to be a pow­er­ful white guy, the prime min­is­ter con­fessed, es­pe­cially one as well-con­nected as the son of a prime min­is­ter. “That’s one of the fun­da­men­tal un­fair­nesses of this cur­rent sys­tem is that it af­fects dif­fer­ent com­mu­ni­ties in a dif­fer­ent way,” he said in 2017, ac­knowl­edg­ing that ran­dom screen­ings are rarely truly ran­dom, and that dis­cre­tion is rarely equally ap­plied.

The prime min­is­ter was right. So was Mr. Spratt and the CCLA. Be­yond the ba­sic of­fence to ev­ery­one’s rights con­sti­tuted by such ran­dom and base­less searches, these ex­panded po­lice pow­ers will ob­vi­ously be ap­plied un­evenly, and that is fun­da­men­tally un­fair. Why was that so true for cannabis that the prime min­is­ter used it to jus­tify why le­gal­iza­tion was nec­es­sary, but the Lib­er­als deem it to be of no con­cern what­so­ever for im­paired driv­ing?


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