'Sad day for charter rights': Police take heat for new mandatory breath sample law

The ability of police in Canada to now demand a breath sample from a driver even without reasonable suspicion they have been drinking has prompted howls of protest.

Some blast change as a step toward a police state, while others applaud move

The mandatory testing enables officers to order the breath sample if a driver has been pulled over for any lawful reason. Police can demand the test even without reasonable suspicion the driver was drinking. (Darryl Dyck/Canadian Press)

A new law that came into effect Tuesday allowing police to demand a breath sample from a driver — even without reasonable suspicion they have been drinking — has prompted both protest and praise.

The changes will have serious consequences, warns one Winnipeg lawyer, while many took to social media to decry the change as unconstitutional.

Police and anti-drunk driving advocates, however, say the new legislation is important.

The Winnipeg Police Service posted a Twitter message Monday afternoon about the new law, which came into effect on Tuesday.

"Research suggests that up to 50 per cent of drivers with a blood alcohol concentration above the legal limit are not detected at roadside check stops," the WPS said in a media release.

"Mandatory alcohol screening will assist in deterring individuals impaired by alcohol from driving, as well as better detect those who do."

Winnipeg criminal defence lawyer Saul Simmonds says he thinks the new legislation is invasive and infringes on citizens' rights by allowing police to essentially go on "fishing expeditions." 

Criminal defence lawyer Saul Simmonds says he thinks the new legislation raises some serious concerns. (John Einarson/CBC)

"And if a person doesn't give a sample that the officer decides is sufficient, they can be charged with the Criminal Code offence of refusing a roadside screening device," he said. 

"That has all the consequences of a criminal case."

Individuals also won't have access to counsel at these roadside tests, even though failing one could result in losing their licence or other consequences, he added. 

"If you don't have a right to counsel, how do you decide as an individual whether you should be answering questions or not?"

He said he expects backlog within the courts to get worse as people challenge the legislation on constitutional grounds.

Change will save lives: MADD

Not everyone is opposed, however. 

Trevor Ens with Mothers Against Drunk Driving (MADD) says the organization believes the legislation will save lives. 

Trevor Ens with MADD says he thinks the new law will deter drunk driving. (John Einarson/CBC )

"Perception is what it is — that police, at any chance, can give [impaired drivers] a screening is something that will deter them," he said. 

"Getting caught is something that will deter people," from driving drunk, Ens said.

In 2017, according to MADD, there were 24 deaths and 756 injuries due to impaired driving in Manitoba.

Mixed reactions

The Winnipeg police Twitter posting received immediate reaction, with the majority declaring it unconstitutional and "a sad day for charter rights."

The Canadian Charter of Rights and Freedoms states that "everyone has the right to be secure against unreasonable search or seizure."

"Rights are rights. We should all be concerned when they're eroded (or just snatched, as in this case)," wrote Twitter user @wpgchrish in response to the police service's tweet.

Others blasted it as a lunge toward a police state and expressed concern that it could lead to racial profiling. Some worried about it being the beginning of a slippery slope leading to police being able to enter homes without reason or warrant.

The mandatory testing is a part of Bill C-46, which was passed by the federal government earlier this year. It allows officers to order the breath sample if a driver has been pulled over for a lawful reason, be it a check stop or a traffic infraction.

Under the old law, officers required reasonable grounds to suspect a driver was impaired before demanding a breathalyzer test.

The Winnipeg police tweet had more than 140 replies and more than 240 retweets as of Tuesday afternoon.

People CBC News spoke with Tuesday afternoon had mixed thoughts on the law. 

Grace Adegunju said she was worried it may create issues of racial profiling. 

"They shouldn't be able to pull over anyone without justification. And I think that that should be a normal rule," she said. 

But Pratipal Singh said he supported it, because many accidents are caused by drug and alcohol impairment. 

"It's not just about us driving our cars," he said. "It's our safety."


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