Bill C-556: The NDP and Random Breath Tests

Last week the NDP introduced private member’s Bill C-556.  The bill would expand the power of the state by granting police the authority to randomly stop motorists and conduct a search and seizure of breath samples in the absence of any grounds.    

Granting the police power to conduct searches without any reason is extraordinary and should justifiably attract the closest of constitutional scrutiny.  

As it stands, police are authorized to randomly stop vehicles in order to inquire into a driver’s sobriety.  If the random stops generates any suspicion that the driver had consumed any alcohol the police can demand a breath sample.  The standard of suspicion can be met through observations of bloodshot eyes, slurred speech, the smell of alcohol, erratic driving, or the admission of any consumption.

The current standard of suspicion is routinely and easily met.  The NDP’s bill seek to eliminate even this lowest of thresholds.

The NDP’s motivation cannot be faulted.  It is impossible to disagree with the Supreme Court of Canada’s recent comment: “there is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective”.

Intentions, however, no matter how bona fide, are no substitute for restrained and constitutional criminal law policy.

Regardless of the purpose of a bill, the starting point in any legislative evaluation must be its constitutionality.  There is little doubt that the arbitrary detentions and groundless searches authorized by Bill C-566 would violate both sections 8 and 9 of the Charter.    

The Supreme Court of Canada has already made it clear that random stops amount to an arbitrary detentions and a violate of section 9 of the Charter.  In R. v. Hufsky the Court held:

The random stop of the appellant for the purposes of the spot check procedure, although of relatively brief duration, resulted in a detention of the appellant within the meaning of s. 9 of the Charter. By the random stop for the purposes of the spot check procedure the police officer assumed control over the movement of the appellant by a demand or direction that might have significant legal consequence, and there was penal liability for refusal to comply with the demand or direction.

The random stop for the purposes of the spot check procedure nevertheless resulted, in my opinion, in an arbitrary detention because there were no criteria for the selection of the drivers to be stopped and subjected to the spot check procedure. The selection was in the absolute discretion of the police officer. A discretion is arbitrary if there are no criteria, express or implied, which govern its exercise. The appellant was therefore arbitrarily detained, within the meaning of s. 9 of the Charter.

Despite violating section 9, the Supreme Court found – in the context of simple checks of licences, registrations, or typical evaluations of sobriety –  that the random detentions of drivers is demonstrably justified in a free and democratic society.  The Charter violation is saved by section 1 of the Charter.

C-556, however, goes well beyond mere random and arbitrary detentions.  

The bill would also authorizes the police, in the absence of any grounds, to compel a driver to submit  to a breathalyzer test (under threat of criminal prosecution for non-compliance).  This means that any vehicle, at any time, anywhere, for no observable reason can be stopped by the police and the driver of that vehicle, who may show no signs of consumption, can be forced to provide a sample of their breath.

In this context there is a strong possibility that C-556 would violate the right to be free from unreasonable search and seizure – section 8 of the Charter.  

It is antithetical to Canadian constitutional values to permit the police to search a person for absolutely no reason.   A 2009 Report of the Standing Committee On Justice and Human Rights concurs in this assessment:

One caveat that must be raised when it comes to the proposed adoption of RBT is the possibility of it being challenged under section 8 of the Canadian Charter of Rights and Freedoms, which states that everyone has the right to be secure against unreasonable search or seizure and under section 9, which states that everyone has the right not to be arbitrarily detained or imprisoned. By its very name, random breath testing indicates that it is not based on the reasonable suspicion that a driver has consumed alcohol but is carried out purely at random. At face value, this would appear to be an “unreasonable” search and an “arbitrary” detention, contrary to the Charter.

Despite the fact the the government’s own report finds a likely Charter violation (all be it one that would be saved by section 1), there exist divergent opinions (commissioned by MADD).  Opinions can differ, but before parliament grants the police extraordinary powers a rigorous analysis of the possible (and I would argue likely) Charter breach should be required.

There also exists the possibility that an expansion of police power under C-556 will have unintended negative consequences.  For example, experience has shown that police often utilize discretionary power to target certain individuals or groups.  It is a sad reality that police discretion is not exercised uniformly; as a result disadvantaged or ethnic groups often find themselves disproportionately affected by over-policing.

Proponents of C-556 and the resulting expansion of police power often point to other jurisdictions to demonstrate the effectiveness of random breath testing in reducing impaired driving.  These studies must be carefully evaluated and applied in the Canadian context.  

For example, Australia instituted random breath testing in the late 1970s and early 1980s to great effect.  However, it has been noted that prior to random breath testing Australia had permissive driving laws and undertook little enforcement of impaired driving.  Before the Australian experience is blindly applied to Canada detailed reviews of that evidence should be conducted to determine the actual effect random breath testing had and to determine if that success would be transferable to Canada.

Two things are clear: There is no magic bullet to eliminate impaired driving and an abandonment of our constitutional values should not be undertaken lightly.  

In proposing C-556 the NDP advocate a dramatic change in police powers and in doing so drives us on to a very slippery slope.