Provision allowing roadside breath tests without suspicion constitutional: Sask. judge
An RCMP Constable holds a breathalyzer test in Surrey, B.C., in this September 24, 2010 photo. (THE CANADIAN PRESS/Darryl Dyck)
SASKATOON -- A Saskatchewan judge has determined a new section in the Criminal Code allowing police to demand a roadside breath test without suspicion is constitutional.
The legislation was brought in by the Liberal government and came into effect in December of 2018. It amended Canada's impaired driving laws to allow police to conduct mandatory roadside alcohol breath tests on drivers they pull over - without requiring a suspicion that the person had been drinking.
The ruling was made in the case of a man pulled over on the outskirts of Martensville in January 2019.
An officer conducted a breath test at the driver’s window which registered as a fail. The driver was then arrested for impaired driving of a motor vehicle.
The man challenged the provision, declaring it unconstitutional under the Charter of Rights and Freedoms.
However, Judge Morris Baniak ruled that while the new provision does violate a person’s right against unreasonable search and seizure, it is constitutional under Section 1 of the Charter, which provides limits on Charter rights if they can be justified in a free and democratic society.
“Driving … is not an inherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused’s rights in a minimal way.”
Baniak also ruled the driver’s rights were not violated under Section 9, which provides the right not to be arbitrarily detained or imprisoned.
“The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive. Conversely, the public utility of police officers having the ability to detect alcohol in drivers who otherwise do not display any observable signs of alcohol consumption is very high.”
The ruling was made in provincial court and could be appealed.