The federal government’s Bill C-46, the new impaired driving legislation, has attracted some controversy from civil liberties groups and some members of the legal community.
The bill was introduced in the House of Commons in conjunction with the Cannabis Act, and it features an update to the Criminal Code to prohibit and punish drug-impaired driving. However, the controversial section is buried within the bill’s complete rewrite of offences related to conveyances (transport), specifically alcohol-impaired driving.
Impaired driving is the leading cause of criminal death in Canada, and we have one of the worst impaired driving records in the OECD (Organization for Economic Co-operation and Development). It is these statistics that prompted the government to introduce Bill C-46. This bill removes the need for police to have reasonable suspicion in order to request breath samples for alcohol.
Currently, police can only demand a breath sample if, in their interaction with the driver, they have formed a suspicion through the observation of indicators such as glassy eyes, slurred speech, smell of alcohol, admission of drinking, etc. As the bill is currently written, police with an approved instrument on their person will have the power to demand a breath sample during the course of any lawful traffic stop, be it for a broken tail light, speeding, or at a police road check.
Civil liberties groups and members of the legal community have raised doubts about the constitutionality of this section, and they have concerns about the potential for targeting marginalized groups. Random and mandatory breath tests for alcohol screening could be challenged under S. 8 (the right to be secure against unreasonable search or seizure) and/or S. 9 (the right not to be arbitrarily detained or imprisoned) of the Charter of Rights and Freedoms.
Under S. 1 of the Charter, reasonable limits can be applied to these rights, but they have to be demonstrably justified and stand up to scrutiny in our free and democratic society. The Supreme Court of Canada has been wrestling with this issue for many years, and although there has been openness to allowing random breath testing, a strong minority has stated that there are many issues with this policy.
The minority decision in the 1990 R v. Ladouceur case stated that the power to stop people for no reason could be based on any whim. Some police officers may stop younger drivers or older cars and racial considerations may also be a factor. The police would not have to give a reason, so there is no way to ever truthfully know the reason why someone was stopped.
We will be inviting civil liberties’ and constitutional experts from the legal community to the Standing Committee on Justice and Human Rights to ensure that Bill C-46 receives the scrutiny it deserves.
Laws must balance the need to protect public safety and the need to protect Canadians’ civil liberties under the Charter of Rights and Freedoms. I stand strongly for effective measures that will stop impaired driving, and I believe a strong focus is also needed on deterrents such as effective and well-funded public awareness campaigns to prevent the awful tragedies that affect so many Canadians.
Alistair MacGregor is NDP Member of Parliament for the Cowichan-Malahat-Langford riding.