We have been vocal critics of the Immediate Roadside Prohibition (IRP) scheme since its inception. It has been a long fight, which you can read about on this blog, but we have an important update. We can announce that we are one of the first law firms in Canada to file a constitutional challenge to new mandatory breath test provisions that came into effect in December 2018.
What is a mandatory breath test?
Section 320.27 (2) of the Criminal Code enables police to carry out a mandatory breath test at the roadside. Officers can demand a breath sample at the roadside from any driver who has been lawfully stopped, regardless of whether they suspect the driver is impaired. Under the previous law, police needed to have a reasonable suspicion, such as an aroma of alcohol on a driver’s breath or an admission of having consumed alcohol, before requiring the driver to take a test.
Critics of the new provision said it was unconstitutional and it was only a matter of time before it was challenged for being an unfair infringement of Charter rights. Well, just as we predicted, a case came along which we believe offers very strong grounds to challenge the constitutionality of the new random breath testing provisions.
Mandatory breath test demand
To fill you in on the case, a woman was pulled over after police received a complaint against her. The officer who pulled her over called a supervisor who ordered him to make the driver undergo a random breath test. The officer read her the breath test demand and she complied.
The officer then proceeded to spend 14 minutes waxing lyrical about all of the possible results and variations that the approved screening device (ASD) could give and what could potentially happen to her as a result. This diatribe included several inaccuracies such as getting the thresholds for ‘warn’ and ‘fail’ incorrect.
After he finished, the woman blew a “fail” on the ASD and she was issued an IRP. The woman later challenged the IRP but her appeal failed. So, not only was she out of pocket for the various costs associated with IRPs, such as the fine, insurance premiums, car towing and storage fees, she also spent money on legal fees to no avail.
Our constitutional challenge
The woman who was given the mandatory breath test demand is now our client. We agreed to take her case pro bono. The truth is we have been waiting for a case like this to come along so we could bring our constitutional challenge to the random breath testing provisions to the Supreme Court.
Random breath testing is it is supposed to be “immediate”. There are several reasons for this, not least because of the impact of a roadside stop on a person’s liberty. Another reason is the accuracy of the results depends to a large extent on the test being administered promptly. This was not the case for our client who had to endure 14 minutes of an officer mansplaining about approved screening devices.
We are arguing that the Criminal Code provisions, in this case, are unconstitutional on the grounds that they infringe upon Sections 8, 9 and 10b of the Charter. These sections protect our freedom from illegal search and seizure, arbitrary detention and right to legal counsel. This represents one of the first challenges to these particular Criminal Code provisions in the country.
The review mechanisms the State has offered are not adequate to challenge the IRP in the circumstances of this case. Our client was unable to challenge the IRP on the basis of it being unconstitutional which is why she lost. There is currently no remedy available to her so she’s effectively stuck.
Civil suit
In addition to the constitutional challenge, we have also filed a civil suit against the RCMP in light of our client’s treatment. If the law is found to be constitutionally invalid, then the losses she suffered should be remedied. The Supreme Court offers remedies if your Charter rights are violated. This includes having evidence excluded from a trial as well as any other remedy the court believes is suitable, such as financial compensation.
What’s next for our mandatory breath test challenge?
We advise people to keep checking our blog for updates about this challenge because if we succeed it’s going to be big. The challenge has been filed so it’s now a waiting game to find out a date for a future ruling. This could have implications for the future of the IRP scheme, and anyone convicted under the new mandatory breath test provisions may be able to reopen their cases, depending on the circumstances. Stay tuned.
I was pulled over at about 9:15 AM. I had left my cigarette lighter at a friend’s house the prior night. I barely have any teeth left, and the dentist told me to use mouthwash after brushing to prevent further tooth decay (I’m on disability and cannot afford dental work). The closest store just happens to be a liquor store. I brushed my teeth and gargled with no name mouthwash and drove the 90 seconds to the store to buy a lighter. I had consumed 1 can of beer the previous night between 12 and 1 AM. I drive a 1978 Oldsmobile and have very long hair. Cop stops me as I was parallel parking in front of my house. There was a notorious homeless encampment right next to the liquor store. The first thing the cop asked me was “How much listerine you been drinking today?”. I told him I don’t drink listerine. I told the officer I had just gargled probably less than 5 minutes before he pulled me over. With the admission I had just gargled, the cop immediately pulled out his roadside screening device and of course I complied and blew. It registered a “Fail”. I was shocked. I had not consumed any alcoholic beverages since the one can of beer 8 hours prior. I asked the cop twice to be taken for a blood test. He got extremely angry and started threatening me with arrest and a host of charges. The cop was also very angry when he ran my record and I have never been charged with any crime. I cannot afford a lawyer. This IRP thing violates my rights. I did not show any signs of impairment, yet because I said I had just used mouthwash, I get a massive charge that I cant afford to pay. I had a small part time job driving seniors shopping and to doctors appointments in exchange for gas money. I feel my rights were violated. I have never drank and drove in my entire life (I’m almost 60). I can understand being pulled over if I was weaving all over the road, but I believe I was targeted because of my old car and long hair. I requested a copy of the dashcam video, and was told it was lost. Approximately one month later, another Constable dropped off a copy of the dashcam video, yet the audio was missing. I wish I could call you, but I can’t afford it.