By: Dylan Finlay
PDF Version: Smoke and Mirrors? With Marihuana Legalization, Parliament Proposes to Drastically Expand Police Power
Legislation Commented On: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, 1st Session, 42nd Parliament, 2017
Parliament is toting marihuana legalization as a necessary public safety measure. With this sentiment, Parliament is revisiting not only drug-impaired driving laws, but also alcohol-impaired driving laws. Part 2 of Bill C-46 would, if passed, allow police officers to demand that a driver provide breath samples without any suspicion that the individual had been drinking. The relevant section is reproduced below:
Mandatory alcohol screening
320.27 (2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the 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, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
Parliament seeks the moral high ground in selling its proposed legislation to both the public and the judiciary. To the public, the Liberals hope to sway voters who find a ‘tough-on-crime’ agenda attractive – the same segment of the population that supports stiff mandatory minimum jail sentences. To be fair, as far as politics go, this strategy is sound; the segment of the population that supports legalization of marihuana because prohibition never made much sense to begin with will likely support the Bill no matter its complexities.
The judiciary will be harder to convince. Mandatory alcohol screening (as it is proposed by Bill C-46) violates ss 7 (the right to life, liberty and security of the person), 8 (the right against unreasonable search and seizure), 9 (the right not to be arbitrarily detained), and10(b) (the right to counsel on arrest or detention) of the Canadian Charter of the Rights and Freedoms (the Charter). Parliament must to cast mandatory alcohol screening as a reasonable limit prescribed by law and demonstrably justified in a free and democratic society to ‘save’ it under s 1 of the Charter.
The groundwork is being laid for such an argument. On CBC’s ‘The House,’ Justice Minister Wilson-Raybould stated: “I am confident [mandatory alcohol screening] will survive a constitutional challenge. It can be justified in terms of public safety, and safety on the roads, and preventing death” (April 13, 2017).
I do not share the Justice Minister’s confidence. Mandatory alcohol screening (as it is proposed) is a flagrant affront to Charter-values and Charter jurisprudence. The Supreme Court should not find such a law constitutional.
A constitutional battle lies ahead. This post will provide a summary of police procedure and the law as it relates to alcohol screening, present arguments for and against mandatory screening’s constitutionality, and ultimately conclude that mandatory alcohol screening is unconstitutional. For the purposes of this post, the focus will be on s 10(b) of the Charter, as this is the focus of the prevailing case law on alcohol screening generally. Continue reading