A Calgary Criminal Lawyer's musings on Mandatory Roadside Sobriety Testing

mandatory roadside testing

The Federal Government has recently further relaxed what was already an exceptionally soft detention/investigation regime governing screening for impaired drivers.  No longer are police required to use even a modicum of investigative sense, for the law now empowers them with near absolute power to force citizens to conscript evidence against themselves as part of mandatory roadside sobriety testing. 

Though there are many good reasons to replace time-consuming coordination tests with fast roadside breath testing, the question is, have we gone too far? The video below is a humorous example/parody of a roadside coordination test. This type of investigative technique is today, virtually a thing of the past.

no more reasonable suspicion

Prior to December 2018, to authorize the use of an “Approved Screening Device” (ASD) it was incumbent on police to minimally have a “reasonable suspicion” that the operator of a motor vehicle had “alcohol in his or her body”.  The “reasonable suspicion” procedure was Constitutionally challenged and upheld by our Supreme Court of Canada. 

An “approved screening device” -- or ASD -- is an investigative tool used by trained police officers to provide an indication of the tested subject’s blood-alcohol level.  “Suspicion” is one of the lowest evidentiary standards in our criminal law.  Suspicion does not require proof beyond a reasonable doubt, proof of reasonable and probable grounds or proof on the balance of probabilities; the threshold for suspicion is much less. Despite the low “suspicion” threshold -- further diminished by the fact that the suspicion need only be that the motorist has alcohol in “the body” -- the Trudeau Liberals decided that this test was still too onerous for law enforcement; their response was to legislate an even easier test.  Today, the Criminal Code authorizes mandatory screening for impaired drivers.  

Though it’s hard to imagine that the low threshold test for “suspicion of alcohol in the body” is onerous, it is true that many accused successfully defended their impaired driving charge(s) based on evidentiary frailties or errors committed by the investigating police.  To address problems that could be corrected by proper training and thorough investigation, the Government’s response was simply to lower the evidentiary standard to a point where training is no longer necessary. This means that in today’s legal climate police no longer need to suspect a driver has alcohol in the body, for they can now make an Approved Screening Device demand (ASD demand) on anybody, even if there is no evidence of alcohol consumption.

mandatory breath testing today. what's next?

By way of example, a police officer no longer needs even a scintilla of information to justify roadside breath testing. 

Think about it.  How hard is it to smell the odour of alcohol?  How hard is it to ask a simple question: “have you consumed alcohol”?  How hard is it to listen to the motorist’s manner of speech or to look into his/her eyes to see if they are red or bloodshot?  How hard is it to observe things in plain view inside the vehicle, such as liquor bottles or other consumption paraphernalia?

Yes, mandatory screening will capture some persons that might have previously gone undetected; but it will also expose persons who haven’t consumed a drop of alcohol to a mandatory and arbitrary screening test.  A consequence is that every person exposed to mandatory breath testing is at risk of being charged with the crime of failing or refusing to provide a breath sample. Most troubling for this Calgary criminal lawyer, is that roadside breath testing constitutes a reasonably prescribed by law breach of the section 10(b) right to counsel.  With that in mind, a plain reading of the Canadian Charter of Rights and Freedoms might inspire an ordinary person to refuse to blow, which will get them charged with a crime. In this writer’s view, this is a serious problem; especially when innocent Canadians are at risk.

police state

The question is, how much power should police really have?  As we start to move the dial towards mandated compliance with police demands without reason, our society arguably shifts towards a Police State. 

Remember, the presence of a Police State may not happen overnight.  It can sneak up on us over years of surgical dissections to our civil liberties; one day we wake to see a Canada that we never thought would exist.  Today, it’s mandatory breath testing, tomorrow, mandatory blood testing, next week, mandatory psychological testing, next year, mandatory DNA testing.  When does it end?

Any dim mind can be convinced to damage to civil liberty for the purpose of public safety. It is important to remember that fear mongering on the back of risk to public safety is easy advertisement.  Living in a free and democratic society takes work.  In the words of Thomas Paine: “Those who expect to reap the blessings of freedom must…undergo the fatigue of supporting it”.

History informs about the taints of power and the evils of Government.  “Power tends to corrupt”, said Lord Acton, and “absolute power corrupts absolutely”.  It seems that no matter how well intended, even the least intrusive Governments mutate and self propagate -- like a cancer that sometimes rests benign but eventually becomes a malignancy. “Society in every state”, said Thomas Paine, “is a blessing, but government, even in its best stage, is but a necessary evil; in its worst state an intolerable one”.  

Our Supreme Court of Canada recognized this in the famous case of Hunter and Southam:

Without such an important protection, even the most democratic society could all too easily fall prey to the abuses of excesses of a police state.  In order to safeguard the liberty of citizens, the Criminal Code requires the police, when attempting to obtain a warrant for an arrest, to demonstrate to a judicial officer that they have reasonable and probable grounds to believe that the person to be arrested has committed the offence.

Again, reasonable grounds are not required for police to make a mandatory screening device demand.  In fact, nothing is needed, the police are simply authorized by operation of our Criminal Code.

Ironically, it was Justin Trudeau’s father, Pierre-Elliott Trudeau who was responsible for our Constitution and Canadian Charter of Rights and Freedoms.  These powerful laws were enacted to constrain Government action, not to authorize it. These instruments were crafted for the purpose of placing limits on the Government, including police power; for history has long recognized the abuses that flow from power in the hands of armed law enforcement.  Today, it appears that our present Government is bend on undoing the work of the past. 

There is little doubt that our Charter is an inconvenience to the Government and law enforcement, but it is a necessary a inconvenience.  Will mandatory roadside testing survive a Constitutional challenge?  Only time will tell.

David Chow is a Calgary impaired driving lawyer (Calgary DUI lawyer) who has been defending impaired driving, "at/over 80" and refusing to blow since 1999. He offers a flat fee defence and a free telephone consultation. Call 403.452.8018.