Does mandatory alcohol screening save lives or kill rights? A pair of experts weigh in

Under a new law, police have the power to stop drivers for roadside testing for alcohol, even though they might not display any of the usual, visual cues that were required in the past. Is this simply an inconvenience that many of us would put up with to save a life, or is it an assault on the Charter of Rights and Freedoms?

Experts probe the power and the risks of random roadside testing

If a convicted impaired driver wants their Ontario licence back they must have an Ignition Interlock installed in their vehicle. They must blow into the device each time they want to drive their vehicle. (CBC)

As of December 2018, police across the country have the ability to stop and test any driver for potential alcohol consumption — without the need for reasonable suspicion.

Furthermore, any person who refuses to co-operate with the breathalyzer test could be charged with a criminal offence.

The new mandatory alcohol testing is a part of Bill C-46, which was passed by the federal government earlier in the year. 

The CBC requested two Manitoba experts to weigh in on the pros, the cons, the benefits and the risks of this new law.

Here now are their perspectives.

A few puffs can save thousands of lives

By Trevor Ens, vice president, MADD Winnipeg Chapter

What would you give to save a loved one?

Someone taken from you by cancer, heart disease or tragedy.  If you could spend 15 to 30 seconds out of your day to keep them alive would you do it?  If it meant exerting no greater effort than blowing out the candles on your birthday cake to keep your loved one with you, would you do it? 

That's all that new law under Bill C-46 wants to accomplish. That's why Canada  enabled mandatory alcohol screening, also known as random breath testing.  

Bill C-46 does not introduce new powers for police.— Trevor Ens

Bill C-46 does not introduce new powers for police to stop drivers.  Police have always had the authority to pull drivers over, to check the status of the driver's licence, registration and sobriety.  But police now have the ability to demand a breath sample from these drivers as a way of scientifically checking whether they are intoxicated.  

Under previous law, police were only able to demand a roadside breath sample if they had a reasonable suspicion that the driver had been drinking. The officer's reasonable suspicion was based on behavioural clues and observations, admission of consuming, manner of driving, the odour on a driver's breath, lack of co-ordination, bloodshot eyes and slurred or indistinct speech. 

The difficulty is that in the brief interaction drivers have with police, only a small percentage of drinking drivers exhibit clear and obvious signs of intoxication, particularly if they routinely drink and drive. 

By authorizing police to demand a breath sample from any driver lawfully stopped, the number of drivers screened is greatly increased, resulting in more impaired drivers being caught. 

Equally important, this, in turn, greatly enhances the deterrent impact of our impaired driving laws, because drivers know if they are stopped, they can be asked for a breath sample.

'The need for mandatory alcohol screening in Canada is urgent.'- Trevor Ens

The need for mandatory alcohol screening in Canada is urgent. 

We have one of the poorest impaired driving records among comparable, developed democracies, even though most of those countries have higher rates of per capita alcohol consumption.

Millions of Canadians continue to drink and drive because the likelihood of being caught is low. Impaired driving continues to be a leading criminal cause of death in Canada, claiming hundreds of lives and causing tens of thousands of injuries each year.  

Mandatory alcohol screening is effective. In countries such as Australia, it  has helped to reduce overall road crashes and fatalities. The World Health Organization stated that in 2015, 121 out of 180 countries had mandatory alcohol screening programs of some kind.  

Canada is not re-inventing the wheel here, we are simply falling in line with proven methods of prevention.

We at MADD Canada believe it will save 200 lives and prevent approximately 12,000 debilitating injuries every year.  

That's almost enough people to fill Winnipeg's MTS Centre. 
Trevor Ens has been a member of MADD since 2016 and says he has personally been affected by impaired driving. (Submitted by Trevor Ens)

That's hundreds of individuals who won't have their lives cut tragically short. Thousands of individuals who won't have their lives affected and forever changed by devastating injuries. Mandatory alcohol screening will prevent individuals, families, friends and communities from having to endure the horrible and senseless outcomes of impaired driving. It will make our roads safer for all Canadians.  

Simply put, mandatory alcohol screening will save lives.

Mandatory alcohol screening will be challenged under certain sections under the Charter of Rights. I know that.

But I believe mandatory alcohol screening will successfully withstand that challenge. The Supreme Court has already upheld existing law regarding random stops for licence, registration and sobriety checks. This is not different. Nor is it different than the millions of searches at airports, borders, sporting or concert events. Alcohol screening is far less intrusive, inconvenient and stigmatising than many of these. 

So I conclude with the question I started with. What would you give to save a loved one?  

A few puffs into a breathalyser; that's all I'm asking of you. The effort and time you provide will be extremely minimal but the rewards can not be counted.  

This legislation will not bring loved ones back. But it can keep more loved ones with us.

Mandatory screening the start of a slippery slope?

By Saul B. Simmonds, B.A., LL.B., Gindin Wolson Simmonds Roitenberg Barristers

If a person stands at Portage and Main minding his own business why should police have the power to demand he empty his pockets?

Should he have the power to demand the driver empty his or her pockets when a stop occurs? 

The new impaired driving legislation gives officers the power to demand any driver to provide a roadside sample. The officer need not have any suspicion, need not discern or articulate any symptoms of drinking .

 At the officers whim they can now ask anyone to blow . No right to counsel is given a driver. The officer need not smell alcohol. They need not see anything untoward. The officers now have an unchecked power .

The officers now have an unchecked power.— Saul Simmonds

On first blush many would say this is just a minor inconvenience to protect road safety. However, this is a litmus test that must be evaluated and scrutinized before the courts.

The idea that an officer can make such a demand without any reason does not conform to the Canadian Charter of Rights and Freedoms; to the Canadian concept of fairness or to reason. It means officers are unchecked. They can demand and seize a breath sample without reason . 

This is an erosion of the charter. 

When the charter became entrenched into the Canadian Constitution in 1982 , for the first time in Canadian history the people of Canada were protected against unlawful search and seizure. Canadians finally had a guarantee to be able to access a lawyer upon arrest or detention. Authorities were required to demonstrate the basis upon which searches occurred. Judges were given the power to protect the rights of individuals and to balance those rights against the importance of admitting the evidence in question in the interest of the administration of justice. 

Saul Simmonds has practised criminal law since his call to the bar in 1981. He has litigated and lectured on Charter of Rights and Freedoms issues, constitutional law and criminal law in numerous forums. He has appeared in courts from British Columbia to Ontario, including the Supreme Court of Canada. (Submitted by Saul Simmonds)

The Criminal Code struck a balance to ensure authorities followed a reasonable set of rules as they investigated drivers.

Police had the right to stop a car to determine whether the driver was properly licensed and the vehicle insured. The officer was entitled to ask questions to establish whether the driver was drinking. If the officer smelled alcohol, saw behaviours or symptoms such as red, watery eyes or heard slurred speech, or for most any articulable reason formed a suspicion that the driver had alcohol in his or her system, the officer could demand a roadside screening test. 

In other words, they could screen for those who should be taken from the roadside. But this discretion was reviewable by a judge at a trial. The  taking of the sample, the search of the individual, was subject to the charter.

Whatever the officer did, the public could depend on its judiciary to look at issues of proper application of the law.

No more. 

If the person is black, Indigenous or a visible minority, racial profiling comes into play.— Saul Simmonds

If the person is black, Indigenous or a visible minority, racial profiling comes into play.

If an immigrant unable to comprehend the nature of the demand seeks counsel, the officer may determine the driver will not comply and charge refusal . 

Immigrants may, under certain circumstances, be subject to removal or deportation. For anyone convicted of refusal, the consequences are the same as being convicted of impaired or being over the legal limit:  fines, driving prohibitions and seizure of the offending vehicle. 

 Add to this draconian, limitless power, new provincial legislation, under the Highway Traffic Act, will now "fine and suspend" for a roadside test that reads a 'warn' -- a sample over .05,  but not a roadside fail.

The roadside device was not designed for this purpose. It is not as accurate as the breathanalyzing devices. It was to screen, not to punish, to be an investigative tool, not a  determinative tool.

As a society we are watching the supreme document of the country, the charter, being sidestepped . This cannot be allowed. If the government wants to tighten the laws, let them, but do not allow the charter protections to deteriorate .

That person on the corner of Portage and Main will now be subject to a search whenever an officer wishes. These changes are a step backward.

The system works. 

Let's not allow the Charter of Rights and Freedoms to become just another document. It was framed to protect individual rights. It s not designed to surrender rights to police.

This column is part of CBC's Opinion section. For more information about this section, please read this editor's blog and our FAQ.

Read more opinion pieces published by CBC Manitoba.