Bill C-46 was introduced in the House of Commons last spring by Jody Wilson-Raybould, the Minister of Justice for Canada. Among its sweeping changes to impaired driving legislation in the province was a provision removing the requirement that an officer form a reasonable suspicion of alcohol in the body before asking a driver to blow into a roadside breathalyzer. Instead, the police would be able to demand a sample at random from any driver.
In testimony before the Senate Committee, numerous legal experts opined that this would have a disproportionate effect on people of colour, including Black and Indigenous Canadians, who are already more frequently targeted for random traffic stops and carding.
Historically, the Supreme Court of Canada has found that random roadside breath testing violates the Charter of Rights and Freedoms. Currently, for breath testing to proceed, there are three requirements: a reasonable suspicion to demand a sample; a need to conduct the test immediately; and the guarantee that results of the roadside test cannot be used as proof of impairment or blood alcohol level at trial. However, Bill C-46 would do away with all of these requirements except the prohibition on using the results as evidence in court.
This would have a disproportionate effect on people of colour, including Black and Indigenous Canadians.
The random breath testing provisions in Bill C-46 have been the subject of severe criticism from defence lawyers across Canada, the majority of whom appear to oppose the bill. Defence lawyers argued that these aspects of C-46 were unconstitutional and in violation of the Charter of Rights and Freedoms right to be secure against unreasonable search and seizure.
Advocates in favour of random testing testified before the Senate, pointing to places where random breath testing is used and has been associated with a decline in impaired driving deaths. The debate appears to be focused around the balancing of Charter rights against the need to protect lives. For the Senate, the Charter won out.
After passing third reading at the House of Commons, Bill C-46 was referred to the Senate for study. After hearing months of testimony from legal and constitutional experts, the Committee voted 6-5 in favour of removing the offending provision. One Senator abstained.
Senator Denise Batters announced the amendment on her Twitter feed, with the following press release:
— Sen. Denise Batters (@denisebatters) May 24, 2018
In response to the Senate's action, Justice Minister Wilson-Raybould, however, indicated that she just did not care about the Senate's decision to remove the random testing provision. Her response to the vote was as follows:
"Mandatory alcohol screening is the centrepiece of this legislation," she said. "We are determined to ensure that mandatory alcohol screening goes forward. Partisan politics has nothing to do with saving people's lives, and mandatory screening will save lives."
The problem with the remarks of the Justice Minister is that they are not at all grounded in the work that the Constitutional and Legal Affairs Committee did. There was exhaustive study of the bill to determine whether random breath testing was a viable and constitutionally valid option in Canada. And in the end, the Charter rights of drivers won the day.
The Liberal Government calls itself the Party of the Charter and champions itself as a leader in Charter rights and freedoms in this country. But behaving as though the Charter is an irrelevant consideration when the Senate has determined that it is not only relevant, but paramount, is completely inconsistent with those values.
It was not just the fact that the bill created an obviously unconstitutional law that persuaded the Senators to scrap the provision. There was more to it than that. The Senate looked at its own investigation into court delays, which was commissioned after the Supreme Court of Canada ruled in R. v. Jordan that cases older than 18 months in provincial court and 30 months in Supreme Court will be stayed, absent exceptional circumstances.
It is already the case, after all, that serious charges are being stayed due to a lack of court time. Impaired driving cases clogging up the courts have been identified as a contributing factor in those outcomes. And so there is much at stake in the constitutionality of this provision. It obviously affects the rights of drivers to be secure against unreasonable search and seizure. But it also affects the rights of people who want to access court services without lengthy delays. And it affects the rights of victims of crime, who are seeing their cases stayed due to court delays.
And after considering the fact that challenges to this aspect of the legislation would tie up the courts for about a decade, coupled with the increased burden on the courts from a significant increase in impaired driving prosecutions, the Senate found that the ends did not justify the means. Particularly so where individuals with civil and family law cases are already facing increases in their wait times to access court resources as a result of the prioritization of criminal cases. Challenges to random testing would only increase their wait times in court.
The Senate found that the ends did not justify the means.
So announcing the intention to circumvent the Senate after it did its job, providing sober second thought to deeply flawed legislation, tends to read more like a petulant child stomping its feet than it does a reasoned approach to complex legal issues. There is a reason we have a Senate, and respect for their decisions about legislation should be encouraged.
In circumstances like this, the House of Commons will have the opportunity to either adopt or reject the changes. If the changes made by the Senate are rejected, the bill goes back and forth until both sides can agree. It will be interesting to see how this plays out. But there is a lot more at stake in this bill, and in particular in the random breath testing provision than simply the rights of drivers.
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The changes made in this vote by the Senate are important. They show deference for individual constitutional rights and the rights of participants in the justice system. The House of Commons would be well-served to back down on this point.
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