Breathalyzer screeners and “Your Rights”

In Canada, except in BC, courts have accepted that there are certain restrictions on the use of evidence that the police get by violating your rights. There is an understanding that, if the police violate your rights while forcing you to blow into a screener breathalyzer, the evidence won’t be used against you for the purpose of punishing you.

This is important because in Canada, except in BC, people expect that the police and the Government will respect their rights. Historically, governments and the police in Canada have been kept in check by the courts. When they wanted to take away your rights for expediency, ideology or political or financial gain, the courts would step in and strike down the legislation.

Times have changed, at least in BC, and increasingly we live in the Orwellian nightmare that we all hoped to avoid. By creating a society with a separation between governments and the courts, we thought that we would avoid the tendency toward becoming a police state. We made one mistake, however. We idolized the police. We taught our children that police are heroes, rather than a necessary evil. Then we allowed the police to have political influence. That seems to be our undoing.

Perhaps you hoped that the Rule of Law would protect us from the police and the Government and ensure that the Government wouldn’t take away your rights. We’re told that’s the way it still works in Canada, except in BC.

If you think we’re being alarmist, consider for a moment breathalyzer screeners and your rights. In BC we now use breathalyzer screening tests for punishment. How is a breathalyzer screening test an infringement of your rights?

Breathalyzer screening tests

In BC we use screener testing for punishment. When you are issued an IRP, the only basis of the IRP punishment is the screener testing. As the words suggests, however, testing with roadside breath testers (such as the Alco-Sensor IV DWF Screener) are considered unreliable breath testing. Throughout the world, except in BC, these hand-held devices are only used to detain drivers for a very short period to determine whether later testing is authorized.

Back in the 1960s, police around the world began to openly recognize a problem they had, that is that officers at the roadside lack the ability to identify drivers who are impaired in their ability to drive. In the U.S. they developed some standardized tests, such as observing movements of the eyes, having the driver walk in a certain pattern, and holding up one foot while counting. These were intended to help officers sort out (screen) potential drunk drivers from those who were okay to continue on their way.

Then in the 1970s hand-held testers were introduced. Just like the physical tests, the results were used only to identify which drivers should be held for further investigation, and which drivers should be allowed to continue down the road.

In Canada we were quick adopters of the hand-held roadside testers. We came up with a made-in-Canada name for them: Approved Screening Devices. One reason we adopted them quickly was because we recognized the frailties of physical coordination testing. Unlike roadside physical tests, screening breathalyzers provide objective evidence. They may be faulty, but they are not largely dependent on the opinions of a police officer. Another reason we adopted them was because the testing could minimally infringe our rights.

Breathalyzer tests and your rights at the roadside

Long before the Charter of Rights was enacted, in Canada we had our Bill of Rights. Although the Bill of Rights is not a constitutional document, meaning it isn’t a highest level law forming the basic law of Canada, it has been long viewed as a law that takes priority over another when two fall into conflict. So, for example, when the Criminal Code was amended in 1975 to allow for roadside breath testing using an ASD, the law was drafted to respect the Bill of Rights.

The Bill of Rights is the first legislation in Canada guaranteeing in law a right to be represented by a lawyer and the right to contact your lawyer if you are detained by the police. This is considered one of our highest legal rights. In a democracy ruled by law where we respect the rights of the individual and we accept that the individual may need protection from the oppressive apparatus of the state, we have a small number of guaranteed legal rights. Perhaps the most important is the Right to Counsel allowing people to lawyer up to protect themselves from the government.

The Bill of Rights and the Charter of Rights guarantee the right to lawyer up; to contact and retain your counsel of choice if the police are detaining you. Being Canada, however, there are certain limits.

To protect every other person from a dangerous drunk driver, we limit the Right to Counsel. So when the first ASD legislation was written, in deference or to minimally intrude on this right, the writers of the law wrote it so that the breathalyzer test would have to happen fast, it would only be used for screening purposes and it would never be the basis of punishment.

This was all to respect and minimally intrude on the Right to Counsel. Although an ASD test violates your Right to Counsel, you are (or “were” in the case of BC) promised that the results won’t be used against you. If you fail the test (except now in BC) it will only be used to justify later reliable testing. And before you are forced to participate in later testing, you are allowed your Right to Counsel.

Screening tests in law

Except now in BC, screening breathalyzer tests have only ever been used in court to justify or prove that the officer had grounds to proceed with a full-fledged investigation. In that event, the officer would rely on the results of the roadside screening test to form grounds to then obtain evidentiary tests that could then be used for punishment. The legal reason is, as explained above, you have a Right to Counsel. That right is grossly violated when a screening test is forced upon a person. The law was written so that a person would not be entitled to be informed of their Right to Counsel or to exercise it before taking the screening test.

In recognition of the violation of the Right to Counsel, the evidence so obtained in the form of the results of the ASD breathalyzer test are inadmissible for anything that justifies punishment or proves guilt. It was described this way in R. v. Einarson, 2004 CanLII 19570 (ON CA) in paragraph 11:

If the driver provides the sample and registers a “fail” on the screening device, there are no immediate criminal consequences. It is not a crime to fail the screening device, nor can the results be used to prove that a driver was impaired or that his or her blood/alcohol level was over the legal limit. However, if the driver registers a “fail” on the screening device, that result either alone or in combination with other observations made by the officer may provide the officer with reasonable and probable grounds to conclude that the driver had committed a drinking and driving offence. If the officer comes to that conclusion, he or she may arrest the driver and make a breathalyzer demand…

So the primary reason that everywhere in Canada, except in BC, they don’t use screening tests results to punish people is because of the violation of the right to counsel. If you believe that we have and should have legal rights, then you accept that if a person’s rights are violated, the evidence obtained directly from that violation should not be used to form the basis of punishment. Of course, that’s not how it works in BC.

Your rights are violated when you are compelled to blow into a roadside screener. In BC the results (despite having been obtained in breach of legal rights) are used to prove that the driver’s blood/alcohol level was over the legal limit.

In Canada (except in BC) it is accepted that the one result of the violation of your rights is that the evidence won’t be used to punish you. As it turns out, in BC your rights are not protected. We see now that your rights are merely words that can be redefined, renamed and then eliminated.