Pol­icy ver­sus pri­vacy

Civil lib­er­ties ad­vo­cates butt heads with anti-drunk driv­ing ac­tivists over new breath­a­lyzer rules that give po­lice more power

StarMetro Calgary - - FRONT PAGE - KEVIN MAIMANN

ED­MON­TON—An Al­berta lawyer says an im­paired driv­ing crack­down tak­ing ef­fect across the coun­try this month will be chal­lenged in court.

Start­ing Dec. 18, po­lice of­fi­cers across Canada will be al­lowed to ad­min­is­ter road­side al­co­hol breath tests on any driver with­out hav­ing rea­son to sus­pect that per­son has been drink­ing.

The new rule passed in June as part of Bill C-46, which le­gal­ized cannabis and over­hauled the coun­try’s im­paired driv­ing laws.

“It will be con­sti­tu­tion­ally chal­lenged, no doubt about it,” said Peter North­cott, who spe­cial­izes in de­fend­ing peo­ple charged with im­paired driv­ing and re­lated of­fences in Ed­mon­ton.

“The ar­gu­ment will be this: that I was ar­bi­trar­ily de­tained, that the law is too broad — it af­fects too many peo­ple in too many sit­u­a­tions with­out any ba­sis for sus­pi­cion of al­co­hol in the body — so a whole bunch of un­nec­es­sary tests.”

Po­lice will still need law­ful cause to pull some­one over.

Sgt. Robert Davis, who is in charge of the Ed­mon­ton Po­lice Ser­vice’s im­paired driv­ing unit, said the new power will def­i­nitely be help­ful for po­lice.

Davis said of­fi­cers will now ad­min­is­ter breath tests to driv­ers who are stopped for stop sign vi­o­la­tions or speed­ing.

Manda­tory al­co­hol screen­ing will also be used dur­ing check stops, which ramp up dur­ing the hol­i­day sea­son.

“For peo­ple that are abid­ing by the law, it’s go­ing to be a very fast stop and they’ll be on their way very quickly,” Davis said.

“For the peo­ple who were slip­ping through our fin­gers that we are go­ing to be able to catch now,

Lawyer Peter North­cott is al­ready pre­dict­ing new breath­a­lyzer rules will be struck down.

I think the gen­eral pub­lic can ap­pre­ci­ate that if we can get even just one im­paired driver off the road, it makes it safer for ev­ery­body else. So I would like to think that peo­ple would ap­pre­ci­ate the fact that we’re just try­ing to make their fam­i­lies safer on the road.”

Re­search sug­gests that up to half of driv­ers with a blood al­co­hol con­cen­tra­tion above the le­gal limit are not de­tected at road­side check stops.

Davis said be­cause check stops are so brief, when an of­fi­cer asks a driver if they’ve had a drink and the driver says no, it can be easy for them to drive off with­out de­tec­tion if there is no ob­vi­ous sign of al­co­hol con­sump­tion.

But North­cott said manda­tory breath tests could vi­o­late the right to life, lib­erty and se­cu­rity of per­son un­der Sec­tion 7 of the Char­ter of Rights and Free­doms, as peo­ple will be de­tained with­out the right to coun­sel while wait­ing for tests to be done.

“The other con­cern is, of course, if (po­lice) just want to has­sle some­one — let’s say some of the marginal­ized groups — that’s the other prob­lem. This will give them a good ex­cuse,” he said. “Oh, hey, I see a guy driv­ing a car that doesn’t look like he should own that car — he’s got the wrong colour of skin or he looks kind of shabby or he’s too young to be driv­ing that car — I’ll just stop him and ask him for a breath sam­ple, and while I’m there, I’ll look around, (for ex­am­ple) look in the back seat, see who his pas­sen­gers are and all that.”

The Cana­dian Civil Lib­er­ties As­so­ci­a­tion has ex­pressed con­cern that manda­tory al­co­hol screen­ing will un­fairly af­fect ra­cial mi­nori­ties who are dis­pro­por­tion­ately sin­gled out by po­lice for traf­fic stops.

Sharon Pol­sky, di­rec­tor of the Cal­gary-based Rocky Moun­tain Civil Lib­er­ties As­so­ci­a­tion, wor­ries about the con­se­quences for those who are not im­paired, but do not want to com­ply with the test.“You ques­tion it, your car gets yanked, you lose your job. And then some­time down the road, this law is de­ter­mined to have been un­con­sti­tu­tional,” she said. “There’s no resti­tu­tion for the peo­ple whose lives have been dam­aged in the mean­time.”



Peter North­cott,, lawyer



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