Random breathalyzer tests constitutional, judge rules

SASKATCHEWAN Rural road check not unreasonable, lower court finds

A Saskatchewan judge has ruled that a new law allowing police to demand a roadside breath test from any driver without needing suspicion of drinking is constitutional.

This appears to be the first ruling on a Charter challenge of mandatory breath screening, federal legislation that was passed by the Liberal government and took effect in December 2018. Prior to the new law, police required some reason — such as slurred speech, bad driving or the odour of alcohol — to demand that a driver take a breath test.

The ruling was made in a lower provincial court, meaning it is not binding on other cases but will likely be taken into consideration.

Judge Morris Baniak found that mandatory screening violates the Charter’s Section 8, which protects against unreasonable search and seizure. However, Baniak concluded that the violation is acceptable under the Charter’s Section 1, which allows for limited Charter violations if they can be justified in a free and democratic society.

“Courts have recognized for a long time that detection of impairment by police officers through observation or interrogation is often ineffective,” Baniak wrote in his analysis.

“Previous attempts or strategies to detect alcohol in a driver such as observation for signs of impairment like slurred speech or bloodshot eyes, smell of alcohol, questioning of a driver about his alcohol consumption and field sobriety tests have all had varying degrees of success but also of failure,” the ruling goes on to say.

“And since driving … is not an inherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused’s rights in a minimal way.”

In the case, police had pulled over driver Andrew Morrison in a rural area outside Saskatoon just after midnight. “They observed the vehicle for some ten minutes before effecting the stop and did not observe anything unusual or suspicious about Mr. Morrison’s driving,” Baniak wrote.

A Corman Park Police Service constable told the court it was a routine traffic stop, and said it is now the service’s policy to conduct a breath test on all drivers pulled over between 6 p.m. and 6 a.m.

Baniak ruled that the random nature of the stop did not violate the Charter’s Section 9, which protects the right not to be arbitrarily detained or imprisoned. He cited law that allows police to conduct brief traffic stops to check for licence and registration, vehicle fitness, and sobriety.

“The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive,” Baniak wrote. “Conversely, the public utility of police officers having the ability to detect alcohol in drivers who otherwise do not display any observable signs of alcohol consumption is very high. I find that Mr. Morrison’s Charter rights were not breached.”

A similar ruling on random stops was recently published by Alberta’s superior court in R v. Labillois. In that case, an Alberta RCMP constable was recorded incorrectly telling the driver that “the new law gives me authority to stop you.”

In reality, the mandatory screening law did not give police new powers for pulling over a driver, only for conducting a breath test once a driver is already pulled over. However, Justice Keith Yamauchi still concluded police had not violated the driver’s Charter rights in conducting the stop.

In the Saskatchewan case, Morrison registered a fail on the roadside screening device. The police officers told the court that Morrison had initially told them he hadn’t been drinking that night, but then later said he’d consumed two “tall boy” cans of beer at a friend’s house.

The ruling — which addressed the constitutional challenge and a few other procedural issues — does not say what Morrison’s blood alcohol limit was when he was later given a full breathalyzer test at the police station. Morrison, however, was subsequently charged with impaired driving and with having a blood alcohol concentration above the legal limit within two hours of driving.

Morrison’s lawyer, Michael Owens, did not immediately respond to a request about whether he’ll appeal the ruling.

There are numerous other Charter challenges against mandatory screening ongoing across the country, though many have been delayed due to the pandemic that shut down courts this spring.

The mandatory screening legislation was heavily debated in Parliament, particularly in the Senate where concerns were raised that the law is unconstitutional and could see racial minorities disproportionately targeted. Critics also pointed to the fact that impaired driving rates have fallen steeply in Canada over the past two decades.

In his ruling, Baniak wrote that he believes the new law will be proven effective at further preventing impaired driving.

“The salutary effects of the challenged legislation may become more apparent with the passage of time,” he wrote. “However, even at this early stage it is becoming clear that it is helpful to police in detecting the presence of alcohol in drivers who do not display readily discernible symptoms. The present case is an example of that.”

MORRISON’S CHARTER RIGHTS WERE NOT BREACHED.