The Liberal government will soon table a defense of its sweeping reforms on drug and alcohol-impaired driving in Canada.
The charter statement will explain why Justice Minister Jody Wilson-Raybould believes the legislation upholds Canadians’ constitutional rights. It was scheduled to be tabled in the House of Commons Wednesday afternoon, but has been delayed due to a late change in the minister’s schedule.
The bill was tabled last month at the same time as legislation to legalize marijuana, and includes tougher penalties and new powers for police to demand mandatory roadside breath samples. The government has maintained it is charter-proof, but many legal experts say new provisions go too far and violate fundamental rights.
Edmonton-based defence lawyer Steve Smith expects the bill will face a swift series of challenges, of which many will be successful. One of the biggest will come to a proposed mandatory roadside breath sample, on the grounds it breaches Section 8 of the Charter of Rights and Freedoms, which protects against unreasonable search and seizure.
The bill could ultimately “rise or fall” under a test around Section 1 of the charter, which allows imposed limits to an individual’s rights as justified for the public good, Smith said.
Right now, an officer must have reasonable grounds to suspect a driver is impaired before demanding a breathalyzer. Under the bill, anyone could be required to blow after being lawfully stopped in their car.
Mandatory breath sample
“They can make a demand for a breath sample without having any reason to believe there is any alcohol in the person’s body at all. They can do essentially random roadside tests on drivers,” Smith said.
The government has said the goal is to nab more people who are now managing to elude detection, and also to reduce legal action over whether an officer actually had reasonable grounds for suspicion to demand the breathalyzer.
But Smith believes the legislative overhaul will lead to more legal action, adding to the problem of widespread court delays.
“I find it very interesting that the government, which is apparently so concerned about courts being overburdened and cases being overturned and stayed as a result, has decided to overhaul one of the most frequently litigated and complex areas of the law, which is going to have the effect, at least in the short term, of dramatically increasing litigation in this area.”
To confront drivers impaired by pot or other drugs, the legislation allows police to demand a driver provide a saliva sample if they suspect he or she is impaired by drugs. A positive reading could lead to further testing, including a blood test.
Smith said there’s a potential challenge there, if scientific evidence shows having a…