Police still need cause for breath test
Bill C-46 gives more latitude, but does not grant the state powers you might think it does
Breathalyzed simply for returning a lot of empties? Not so fast.
The introduction of a new Canada-wide law giving police far more latitude when it comes to making a driver produce a breath sample has resulted in a much-clicked headline. A Toronto man claims that after an officer saw him returning what he deemed “an excessive amount of beer bottles,” he was consequently pulled over in a traffic stop by that officer. He hadn’t been drinking, but the new law meant the officer could make him produce a breath sample, reasonable suspicion of imbibing be damned.
But hold up: Yes, the new law, contained in Bill C-46, gives police the right to demand a breathalyzer test at roadside even if they don’t see evidence that you’ve been drinking — if you’ve already been lawfully stopped. The click-bait headlines are missing this part.
From Sergeant Alex Crews with Toronto Police Traffic Services: “Mandatory alcohol screening (MAS) can only be used by officers who lawfully stop a motorist. That means if police stop you for speeding, a stop-sign or red-light violation, that sort of thing, then and only then, can they make a demand for a roadside test without having reasonable suspicion that you have alcohol in your body. So the example of the individual getting in and out of the car with the empties, would not be a lawful stop, and the officer would not be able to make a demand for MAS.”
Beer Empties was either doing something after he left the store that caused him to be stopped, or if he wasn’t, he can file a complaint against the officer and an investigation will be carried out. This has echoes of the mechanics of a RIDE check.
The officer in a RIDE check who waves you over can assess only if you’re impaired; he or she cannot issue you a ticket for a busted headlight or other infraction. However, the next cop down the line may.
It’s estimated that 50 per cent of drivers who have been drinking get away with it, even if they’ve been stopped. The on-demand testing is now in use in 40 other countries around the world, and it’s been a success in all.
In some, including Ireland, it reportedly has resulted in a 40-per-cent decline in traffic fatalities in just four years. With numbers like those, it’s little wonder police welcome the new laws.
Ian Savage, president of the Criminal Defence Lawyers Association (Calgary), unsurprisingly questions not just the constitutionality of the new legislation, but even the reliability of the studies that are deemed to support it.
He questions how they can attribute declining fatalities without taking into consideration factors like cars that are consistently getting safer.
“The threshold for police performing a breathalyzer test is already low. This (C-46) eliminates even that minimum,” he says. He predicts the courts will be clogged and many convictions, especially those for refusing to give a breath test, will be tossed out.
What if a judge finds the forced breathalyzer to be unconstitutional, but the driver blows over?
“That’s up to the judge. Some may support the finding, others may throw the whole thing out. This law will be a huge intrusion impacting thousands of people unfairly.”
C-46 is a federal law, aimed at streamlining a hodgepodge of laws that began in the early 1920s in Alberta, when it was determined it was illegal to drive your Model T after consuming too much bathtub gin. Bill C-46 seeks to deliver a comprehensive and cohesive mandate on dealing with drivers impaired by alcohol. When science catches up with more definite ways to measure impairment from other drugs, expect the law to be amended.
Sergeant Crews points out a crucial part of the new law: It’s finally a way to start taking apart the “bolus” drinking defence, or intervening-drink defence.
What is the bolus defence? Consider that your blood alcohol concentration (BAC) continues to rise for 30 to 90 minutes after your last drink.
Some drivers will drink right before they drive (or as they drive), anticipating they can get to their destination before their BAC hits an illegal level. The new law can measure you two hours later, capturing your true impairment level. I don’t know about you, but I’d rather not be on the road with someone who is getting drunker by the minute.
The intervening-drink defence is another gambit drivers try when involved in a crash. They admit to drinking, but claim it was only after the crash but before the breath test. “I drank to calm my nerves,” they claim. But because the new law changes “the time frame of the offence (i.e., to being at or over the offence level within two hours), the argument that post-consumption alcohol was the cause of the high blood alcohol concentration is no longer relevant.”
Much is being said that this means the cops can barge into your house and demand a breathalyzer. The legislation includes room for the defence: “The driver drank after driving but had no reason to expect that they would be required to provide a sample of breath.” Like, you didn’t just do a hit-and-run.
I detest the invasive searches carried out whenever I board a flight, but I resignedly admit that if I’m pulled over by a cop and asked to take a breathalyzer, I’ll just breathe and go. Our roads are far more dangerous than our skies. But Savage, the defence lawyer, believes that people who readily accept airport security will not take to C-46 in the same way.
He predicts waves of roadside refusals. And a month into the new law, he already has cases ready to go.
After this column was written, another member of law enforcement in Ontario reached out to me to explain that officers do, in fact, have the right to pull over any driver for a sobriety test, at any time, whether they’ve committed a moving violation or not. They frequently stop vehicles leaving banquet halls, beer stores, and bars. This is not a new thing under Bill C-46; this is current law. The officer who stopped the driver leaving the beer store conducted a lawful traffic stop.