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Liberals' Marijuana Bill Aims To Erode Our Charter Rights

04/18/2017 09:41 EDT | Updated 04/18/2017 12:34 EDT

It appears that the Liberals are coming through on one of their campaign promises, which was the legalization of marijuana.

Last week, legislation was tabled by our government, seeking to end the 94-year prohibition against the drug. But with it came with some unexpected proposals that are likely to be in conflict with our charter rights. These are the ones aimed at curbing impaired driving.

While the bill's main focus is centred around the legalization of marijuana, controversy is raging over the impaired-driving provisions. They seek to create a scheme that would involve arbitrary and mandatory roadside breath tests for motorists.

liberal marijuana

Minister of National Revenue Diane Lebouthillier, Ralph Goodale, Minister of Public Safety and Emergency Preparedness, Jody Wilson-Raybould, Minister of Justice and Attorney General of Canada, Jane Philpott, Minister of Health and Parliamentary Secretary Bill Blair listen to a question after announcing the legalization of marijuana during a news conference in Ottawa, Thursday April 13, 2017. (Photo: Adrian Wyld/CP)

If this new bill were to pass, police officers would be able to demand breath samples, regardless of the circumstances and even where there is no reasonable basis for doing so.

As the law stands today, police officers can demand a motorist supply a roadside breath sample, using a hand-held breathalyzer device, if they have reasonable grounds to suspect that the motorist has alcohol in their body.

This involves somewhat of an investigation at the roadside. However, it is not a cumbersome one. An officer must simply interact with the motorist, and make note of any observations, such as an odour of liquor on the breath or other symptoms of impairment, that may give them a basis to suspect that alcohol is a factor.

This is why, when you drive into a roadblock, a police officer will ask you to roll down your window and typically inquire as to when you had your last alcoholic beverage. They are doing this in order to look at you, talk to you, and determine whether or not you should be detained for the purposes of furthering the investigation. If not, then they must allow you to carry on.

The failure to conduct a proper investigation in this regard is what sometimes leads to the exclusion of evidence in impaired-driving trials. This has been a source of frustration for some, who accuse high-flying lawyers of exploiting a system rigged in favour of the accused.

No one endorses impaired driving -- but we, as Canadians, also have certain fundamental and inalienable legal rights.

However, we have to remember that the grounds to make a roadside breath demand are onerous for police officers, and this legal requirement is in place for a very good reason. That reason is the Canadian Charter of Rights and Freedoms.

Requiring officers to have valid grounds to detain and make warrantless demands for bodily samples ensure that our basic charter rights are not breached. It balances our individual rights alongside the interests of the public. It ensures that we, as citizens, are not subject to unlawful intrusions by the state and that our personal dignity is upheld.

After all, no one endorses impaired driving -- but we, as Canadians, also have certain fundamental and inalienable legal rights. For one, we have the right to be secure against arbitrary detention by police. We also have the right to be free from unreasonable search and seizure.

These are legal rights afforded to all Canadians, and they have not been afforded to us lightly. They are in place to ensure that we are protected from the overarching reach of the state. They are in place to make sure we are not treated unfairly when confronted by the judicial system and law enforcement. They are just as important as our right to be presumed innocent until proven guilty and not to be subjected to cruel and unusual punishment.

They cannot be -- and should not be -- done away with so flippantly.

Moreover, a number of civil-liberties associations have already expressed concern about the way this legislation is likely to disproportionately affect visible minorities. They fear that African Canadians and indigenous peoples will be more frequently targeted during random road stops and made subject to arbitrary breath-testing procedures. This is certainly cause for concern.


In spite of this, though, the government is justifying its proposal by arguing that such measures are necessary to cut down on impaired driving. It says this is particularly so once marijuana becomes legal. It's concerned about the effects of drugged driving, and wishes to create a scheme that will deter individuals from driving while high or combining alcohol and drugs prior to getting behind the wheel.

However, there is nothing to indicate that the legalization of marijuana will create an upsurge in drug-impaired driving.

Other jurisdictions that have already legalized the drug have actually reported statistics that tend to indicate the opposite: there have been fewer drugged drivers on the road post pot legislation.

In Colorado and Washington, for example, data shows that marijuana use, and as a result, drug-impaired driving, has decreased since the drug was made legally available.

In spite of this, the Canadian government feels aggressive measures must be put in place. The legislation also seeks to increase fines and impose tougher jail sentences for convicted impaired drivers.

The fact that the government is looking to erode our fundamental rights as Canadians, while also creating more punitive measures for those ultimately found guilty of an offence, is extremely troubling.

The Liberals hope to have this bill passed into law by July 1, 2018.

I predict a constitutional challenge to be filed by July 2, 2018.

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