At the beginning of March, the Regina police announced that they would breath test every driver they pull over, no matter the reason or the offence. A month later the RCMP announced that they would do this in the entire province of Saskatchewan. Many people are not happy. And this policy is likely coming to BC.
Interestingly, in Alberta they adopted a policy of making everyone blow roadside shortly after the law changed that gave the police this power. In December 2018 the Criminal Code was changed to allow the police to make an ASD (Approved Screening Device) demand to anyone they lawfully stop, provided they follow the steps set out in the Criminal Code. Despite this new power, we noticed most police officers in BC continued to operate as before. When they pulled someone over, they would only make the ASD demand that was authorized when they have reason to suspect the driver has alcohol in their body.
An ASD demand is a warrantless search
When the police demand to make a person blow into any breathalyzer, it’s a search and seizure made without a warrant, without prior judicial authorization and on a deficient standard because the lack solid evidence that the person has committed an offence of having a prohibited blood-alcohol level. The only reason the police can conduct this warrantless search is because it’s authorized by law, specifically the Criminal Code. Because it’s warrantless and violated some Charter Rights, the police must strictly abide by the steps set out in the Criminal Code.
A suspicion demand had been part of the Criminal Code for decades. If, during the lawful interaction with a driver or someone who recently drove, the officer forms a reasonable suspicion that the person has alcohol in their body, they could make a demand to blow. In 2018, the Code was amended to add a new provision that if the officer made the demand immediately in a lawful stop, they did not need a suspicion. Interestingly, the change did not allow an officer to have a deficient suspicion and make a suspicion demand, although many police officers haven’t wrapped their minds around it.
Two types of ASD demand
We now have two types of ASD demand: a suspicion demand and a mandatory demand. The police have two ways of coming at it, yet in BC we rarely see mandatory demands. Police continue to try and form a suspicion and make a demand based on a suspicion. It’s unclear why.
A judge presiding over a trial in the Yukon questioned this. He wondered why, when Parliament gave the police this power, they continued to use suspicion demands, particularly where it adds an extra step that they may screw up. Interestingly we see officers screw up mandatory demands with similar consistency.
The Alberta advantage
Albertans talk a big game, but when it comes to being heavily policed, they are the first province to adopt heavy police tactics because the population acquiesces without much fuss. In Alberta they have photo radar at intersections all over the province designed to ticket vehicle owners when they barely exceed the speed limit. No forgiveness for a minor error. It was easy, therefore, to roll out a policy of testing every driver in Alberta because they knew they would get little pushback. And, true to form Albertans were the first to face a policy of mandatory testing for every driver and they did not resist.
The government knew they could expect compliance from Albertans. The drivers of Saskatchewan were a little more resistant but there is nothing they can do. One wonders about BC.
What’s the hold up in BC?
BC describes itself as having the toughest impaired driving laws in Canada. The tough part is not the punishment, which is less than in most of Canada. The tough part is not the possibility of a criminal record, which is now not an issue in the vast majority of DUI cases in BC. The tough part is that the punishment comes roadside based on a screener and the government wrote the laws to make the tribunal and process one-sided against the driver. In other words, the tough part is they took away the procedural protections to protect innocent people. That’s the BC version of “tough.”
One consequence is that a huge number of people end up with 90-day IRP DUIs for refusing to blow, even though they legitimately tried or claim to have tried to blow. The process operates on a presumption of guilt. That’s part of the “tough” aspect of it.
Many innocent drivers are without a remedy because of the way the government designed the process. This is part of the “tough” part – punishing people who are innocent. And often enough, as we see in the news, it’s the disabled, elderly and women over the age of 50 who get IRPs for alleged refusal.
This is one of the key concerns we have with a program of subjecting every person stopped to an ASD breath demand is that such a program disproportionately hurts older people and people with breathing disabilities. Match that with the roadside justice of the IRP scheme, where you’re presumed guilty, and one can imagine many more innocent people will be punished despite their innocence.
It’s coming to BC
British Columbia is filled with Albertans. Although many Albertans hate the idea that some of their income tax should be redistributed to BC, taxpayers in our province pay for the heaviest healthcare costs taking care of Albertans who retire in BC. And the BC police have to put in extra effort to police the highways of Albertans who get overly enthusiastic throwing off their shackles when they drive across the border and discover the police don’t issue speeding tickets with the same zeal in the real west.
Every-stop breath testing coming to BC
Moving west, like so many retired Albertans, is mandatory breath testing at every stop. We tend to know about these things before any public announcements and we have enough information to say at this point that it’s coming. Alberta was the appetizer, Saskatchewan was the salad and British Columbia is the main course. Expect proud announcements from the police in the coming months.
A Vancouver holdout?
One problem is the need for every general duty police officer to have a properly calibrated Approved Screening Device breath tester with them at all times. We are aware that there are grumblings at the VPD about not wanting to go this far, not wanting to waste officer’s time, not wanting to waste the time of drivers and then face a potential loss of pubic support.
Drivers in British Columbia may not be as docile as drivers in Alberta. When more and more stories come out of disabled and elderly people facing 90-day Immediate Roadside Prohibitions for refusal, we hope there will be a vigorous public discussion.