Will the new roadside testing rules pass a Charter challenge?

By Justin Ling April 21, 201721 April 2017

Will the new roadside testing rules pass a Charter challenge?


Much has already been made of the Liberal government’s pledge to legalize marijuana, and parliamentary debate has yet to even begin.

But one element of the massive legislative effort that has received less scrutiny is a pledge to implement mandatory roadside tests for intoxication — the common breathalyzer test for alcohol, and the still-unproven oral swab test for THC, the psychoactive component in marijuana.

Bill C-46, the legislation updating the Criminal Code’s impaired driving sections, reads that a police officer may, in their “lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law … by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath.”

That change, which appears to apply only to testing for alcohol intoxication, is possibly unconstitutional, and is far from new.

In 2013, CBA National went through a chain of proposed drunk driving bills that were designed to toughen the Canadian laws, but appeared to run afoul of all of the jurisprudence on the matter — specifically, the Supreme Court of Canada’s pronouncement in R. v. Bernshaw that: “’reasonable and probable grounds' is not only a statutory precondition to a breathalyzer demand but also a touchstone of the Charter."

It is difficult to guess at what probable cause could be found to administer a breathalyzer in a situation where a driver’s tail light is out or because their vehicle matched the description of a stolen sedan.

The government’s legislation here, at least, is much more narrow than past proposals — which called for random tests of anyone found inside a motor vehicle in any situation — but that doesn’t necessarily mean it will pass a Charter challenge.

Police will still need reasonable grounds to suspect that a person has alcohol or drugs in their system before pulling them over and administering a test in all other circumstances. That still presents challenges, as lawyer Jordan Gold writes for Robichaud Law, noting that the science behind the saliva tests for THC remains far from perfect: “Canadians may be subjected to questionable scientific schemes and subjective police arbiters on impairment. And the liberty of those Canadians will be at stake.”

But the mandatory aspect of the test outside the narrow requirements is very new.

“This is a significant departure from the constitutional safeguards we have established,” writes Kyla Lee, a Vancouver criminal lawyer who focuses on impaired driving.

As Lee notes, and as CBA National noted four years ago in reviewing the various other doomed pledges to reform the law, all warrantless roadside breathalyzer tests raise constitutional concerns, and are saved by s.1 only by weighing the infringement against the public good served by fighting drunk driving and by the officer’s assurance that they have reasonable grounds to suspect a crime had occurred.

“If we change the law to remove one of the significant constitutional safeguards – the obligation that the police form a reasonable suspicion – then no longer is the law saved by Section 1,” Lee writes.

The legislation hasn’t had its day before committee yet, but there seems to be little appetite to even consider holding the line on the current drunk driving laws, given that the private members’ bills — the ones that appear to have little chance of surviving a challenge — had been introduced in recent years by both NDP and Conservative politicians.

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