The federal justice minister is considering a new law that would allow police to conduct random breathalyzer tests on drivers, regardless of whether they suspect motorists have been drinking.

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Mothers Against Drunk Driving says the federal government is considering adopting random breathalyzer testing, following the June 2009 recommendation of a House of Commons justice committee. ((CBC))

Justice Minister Rob Nicholson raised the prospect recently at a meeting of Mothers Against Drunk Driving, according to MADD chief executive Andrew Murie.

If random testing were to be adopted, it would be a major change to Canada's 40-year-old breathalyzer legislation, which stipulates that police may only administer a test if they suspect a driver has been drinking.

In June, a House of Commons parliamentary committee recommended changing the legislation to allow for random testing, arguing it is an effective deterrent.

The change would also bring Canada in line with a number of other countries in Europe and countries like Australia, which have adopted similar measures.

Murie said its biggest selling point is that it improves road safety, with drunk driving fatalities dropping 36 per cent in Australia after legislation was introduced, and 23 per cent in Ireland when it made the change.

Tests could infringe on civil liberties

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Justice Minister Rob Nicholson introduced legislation in 2008 that compelled drivers stopped by police to take a roadside test, such as walking a straight line. ((Adrian Wyld/Canadian Press))

"In the European Union, they demand that their countries, as part of membership for road safety, have sophisticated random breath testing because of the difference it's made in lives saved," he told CBC News.

Murie said the change would allow police at roadblocks to conduct about three times as many breathalyzer tests because they would not need to spend time determining whether there is "reasonable" suspicion a driver has been drinking.

The issue for civil libertarians, however, is that changing the law to allow random testing would be a violation of a person's right to protection against unreasonable search and seizure.

"It has no real place in a democratic society," said Richard Rosenberg of the British Columbia Civil Liberties Association.

"Giving police power to act on a whim is not something we want in an open democratic society."

Liberal MP Ujjal Dosanjh, the former attorney general of British Columbia and a member of the House justice committee, said the question of whether any legislation would be allowable under the Charter of Rights and Freedoms would come down to implementation.

Constraints on police power needed: MP

"It remains to be seen what the actual legislation is when the minister brings it forward because we want to make sure that it's appropriately constrained and it's not too much of an infringement on civil liberties," Dosanjh told CBC News.

Dosanjh said the charter does allow for constraints on rights when they are deemed reasonable, but said he would need to see how those constraints are implemented before judging any future legislation.

"For instance... I wouldn’t want the east side of Vancouver monitored more than the west side of Vancouver because there is a clear economic division in the city," he said.

"We want to make sure that areas are not unnecessarily excessively focused on and that's why I think that we need to make sure that the legislation is properly drafted with appropriate constraints and guidelines for the police," he said.

But Dosanjh pointed out that driving is not a right itself, but rather a privilege subject to licences given by government authorities.

Nicholson could not be reached for comment.