The changes to the Criminal Code sections on impaired driving that came into effect on December 18, 2018, will have a huge impact on the manner in which investigations, prosecutions and the defence of alleged impaired drivers will be conducted. Many of the more disconcerting provisions have not been discussed in the media. The section of the new law that is particularly controversial is the new mandatory roadside breath test provisions; what is commonly referred to as arbitrary testing. An aspect of the discussion involves concerns about bias-free policing.
An unnecessary change
The new law eliminates the requirement that the police have a reasonable suspicion that a driver has alcohol in their body before they make a demand to provide a breath sample into an Approved Screening Device (an “ASD” or “roadside breath tester”). The test in the Criminal Code for decades had been that the officer satisfy themselves that they suspect on the basis of a reason that a subject has alcohol in their body. It was not a difficult test.
The reason could be slight. The officer could stick their face in the driver’s face and smell liquor on their breath, or in most cases obtain an admission of recent consumption or have some other reasonably reliable information about drinking. It was an easy test, but it was a test. It accomplished a number of good things. It was very quick so it allowed an officer to check and clear many people very quickly. As a consequence, they could check more drivers in a period of time. It ensured drivers who hadn’t been drinking were not unnecessarily detained and subject to a warrantless search. It ensured that drivers who hadn’t been drinking were not subject to a violation of their right to talk to a lawyer, their right not to be arbitrarily detained and their right to be secure from participating in a compelled search and seizure. It was a good test.
Also good was that people understood the test. As a driver, you knew that if you wanted to avoid being detained, all you had to do was not drink. If you chose to have something to drink, you accepted the possibility of detention and police scrutiny.
Perhaps the most important aspect, however, was that there was a test. Regardless of who you are, your skin colour, ethnicity, age or native language, you would only be tested if the officer had reason to suspect you had alcohol in your body.
The concern
The new Criminal Code provision abolished that test. Although there is a section of the Code that maintains part of it, there is another entirely new section that completely eliminates the need to rely on it. Now the only requirement is one that always existed: that the police made a lawful stop of the vehicle.
The problem, however, is that unlike in the USA, the police in Canada can stop you on a whim. They can stop you to look at your driver’s license. They can stop you to assess your sobriety. It’s really akin to a police-state concept and something that most Americans would think is repugnant to the concept of living in a free country, but in Canada, the police have almost limitless powers to pull you over while driving.
Again, unlike in the USA, we really have no legal test to limit the ability of the police to stop you, which is the essence of the concern. In Canada, we have an international reputation for racial bias in policing. We know from the experience of many of our clients that racial bias comes into play often enough to be a significant concern. Many other lawyers across Canada have also identified this issue as a threat to equality in our country.
The police concerns
In the weeks leading up to the law coming into effect, we spoke out regularly about this particular concern. Officers we spoke to at traffic court expressed concerns from the other side. They were worried that the lack of a test opened them up to the allegation of bias. Simply put, most drivers wonder why they were singled out to be pulled over. Many assume they were pulled over due to their ethnicity. Now they will assume that they’re being asked to blow due to their ethnicity. It is inevitable that people who view themselves as vulnerable due to their ethnicity will come away feeling they were tested due to bias. They will feel less secure in their country. They may feel this is another example of racism holding them back.
It’s safe to say that most stops and compelled breath samples will not be motivated by racism. But that’s not to say it won’t be the understanding of the individual subjected to testing. And it’s reasonable to expect that some people will complain about racial bias.
Our information campaign
We spent weeks leading up to the change in the law trying to get the word out, not just to our former clients but to the drivers of British Columbia. Kyla was on radio and television news shows to talk about it. We want to ensure that drivers at the roadside don’t refuse to blow just because they haven’t been drinking. We wanted everyone to know that it no longer mattered if there was no odour or alcohol consumption.
We also spoke regularly about the steps the police need to take to ensure they can defend themselves from any allegation of bias. Just before Christmas, we published an infographic advising the police to take good notes so they at least have some good record to justify their actions.
Our Christmas gift to police officers in BC this season is a quick flow chart to explain the importance of good note taking under the new impaired driving laws.
Please share with your fellow officers and take care out there. #policing pic.twitter.com/i7Rg8N8RVU— VancouverCriminalLaw (@VanCrimLawyer) December 24, 2018
The BC government knows
As we were discussing this in our office in the weeks leading up to the change in the law we had two concerns: notifying the public and notifying the police. We got the word out and the BC government and RCMP clicked in. On December 18, 2018, a new version of the ASD manual went online at RoadSafetyBC with a funny paragraph tacked on the end. The very last paragraph, on the final page, instructs police officers on how to protect themselves from allegations of bias:
8.3 Bias-Free Policing
When exercising the authorities granted by Section 320.27(2) of the Criminal Code as they pertain to Mandatory Alcohol Screening, it is expected that claims of bias will arise. It is important to ensure that this authority is being utilized responsibly. Thorough note-taking of what transpired before the breath demand is vital.
Even though it’s tacked on to the end, we’re glad to see that the BC government and police are responding to our concerns. Unfortunately, they can’t respond to the way many drivers will inevitably feel when they are subject to arbitrary breath testing.
The perception problem
Good note taking may protect the police from allegations of bias. It does nothing to address the sense of discrimination many drivers will feel when they compelled to blow for no apparent reason other than perhaps from their perspective, the colour of their skin.