A Saskatchewan provincial court has ruled that random breath testing at the roadside does not pose a sufficient infringement on people’s rights to be unconstitutional. The decision preserves police powers to order mandatory alcohol screening tests to drivers even without a reasonable suspicion they have been drinking.
Acumen Law’s Kyla Lee called the decision a “dark day for Canadian law” on the Driving Law podcast. The mandatory breath testing provisions came into effect in 2018 as part of changes to the Criminal Code. Previously, police needed to form a reasonable suspicion before demanding a breath test, based on observations such as slurred speech or an odour of alcohol. From the beginning, critics argued the changes infringed Charter rights to freedom from arbitrary search and seizure and freedom from unreasonable detention. So there was always going to be a reckoning in the courts at some point and as it so happened it was a case that happened in Saskatchewan.
The case involved a man charged with operating a motor vehicle while impaired and operating a motor vehicle with a blood alcohol content above 0.08. Police officers observed the defendant’s vehicle for 10 minutes prior to pulling him over and they did not observe anything unusual or suspicious. The arresting officer said it was the local force’s policy to conduct breath tests on all drivers stopped between 6 am and 6 pm.
The defence filed for a stay of proceedings on the grounds that the new Criminal Code provisions were unconstitutional. The judicial justice found that random breath testing does infringe the Charter, however, it is justified because there is a pressing objective of reducing drunk driving.
The judicial justice said:
“And since driving … is not an inherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused’s rights in a minimal way.
The Court found that although mandatory breath testing leads to arbitrary detention, it was for a “minimal” amount of time and, therefore, justified the infringement.
Kyla Lee, of Acumen Law, said: “You can’t just say that because driving is not an inherent right and is subject to extensive regulation that you can justify an infringement like this with having these big civil liberty intrusions.”
It is not currently known whether there will be an appeal of the decision, however, Kyla Lee said it was “out of step” with several recent Supreme Court of Canada constitutionality cases.
Listen to the discussion below: