Tories revive random roadside breath test

National Post

Tories revive random roadside breath test

Critics fear racial profiling

National Post, Wednesday, March 10, 2010

By: Janice Tibbetts and Kenyon Wallace

The Harper government appears ready to move ahead with imposing random roadside breath testing, which a new federal discussion paper says has produced “remarkable results” in catching drunk drivers in other countries.

The proposal has encountered skepticism, however, with civil liberties proponents warning that the new legislation could give police the power to detain drivers without reasonable grounds or suspicion.

“The reality is that it creates a bit of a police-state mentality in which an innocent person can be subjected to a whole host of testings,” said Edward Prutschi, a Toronto criminal lawyer.

“One’s going to have to put an awful lot of faith in the typical officer on the road because they are going to be given a dramatically expanded discretion — basically absolute carte blanche — to stop anyone, anywhere, anytime and demand breath alcohol testing.”

Empowering police to conduct random tests would replace 40-year-old legislation, which says the Breathalyzer can be administered only when there is reasonable suspicion of drunk driving.

Justice Minister Rob Nicholson has already said he likes the idea, and Mothers Against Drunk Driving executive director Andrew Murie said the coming talks with interest groups and provincial governments are a sign the government could take action.

The Justice Department is inviting public input on the idea of random sobriety tests and federal officials plan to meet this month and next with provincial ministers and other experts to measure support. The federal government has posted a discussion paper on its website weighing the benefits of random testing and seeking feedback by the end of April.

“I think the tone is that this is something they should do and the discussion paper reflects that,” said Mr. Murie, stressing that he has no knowledge of when, or even if, a proposed new law would be introduced in Parliament.

The discussion paper notes that Canada would be following Australia, New Zealand and 22 European countries that have imposed random testing.

The Justice Department reports that such testing has reduced fatal crashes by as much as 35% in some jurisdictions and, in New Zealand, saved society more than $1-billion in 1997 alone.

But the department does not ask stakeholders whether they think random testing would run afoul of the Charter of Rights and Freedoms guarantee against unreasonable search and seizure.

Kirk Tousaw, a member of the board of directors of the B.C. Civil Liberties Association, sawys his organization would oppose any changes to the criminal code that would allow police to engage in “widespread violations to the Charter of Rights and Freedoms.”

“I’m dismayed that the government of Canada cares so little about basic rights and freedoms that it would even contemplate this type of legislation,” he said, noting that a major problem with random stops is that they are easily susceptible to abuse.

“You can certainly see where some police officers could engage in racial or socio-economic profiling. These are the kinds of abuses that are part of the reason these stops are not permissible.”

Mr. Murie speculated that the courts, in the post 9/11 era when Canadians are used to increased security, would find that the goal of curbing drunk driving would trump any rights invasion.

Mr. Prutschi adds that such legislation could also give police greater latitude to invoke licence suspensions under provincial laws.

Ontario’s new Road Safety Act, for example, allows police to hand out automatic three-day licence suspensions to drivers who register blood alcohol concentrations below the legal limit of 0.08 but above 0.05. While these suspensions are not criminal in nature, they go on a driver’s record and can affect insurance rates.

Mr. Prutschi says officers using federal legislation to randomly pull over drivers to test for blood alcohol levels above 0.08 will also be able to issue suspensions against people in the “warning range” of 0.05-0.08 under provincial legislation.

“There’s no doubt that kind of change in legislation is going to boost the prosecution of impaired driving and I think it will boost the convictions of impaired driving,” he said. “What you won’t see in that statistic is the number of people who are pulled over, subjected to this demand on a capricious basis or some sort of inappropriate basis.”

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