Mandatory breath tests are becoming the norm for policing on Canada’s roads, but are they legally sound? One accomplished criminal defence lawyer told True North that they hold up to scrutiny and are likely here to stay.
Ottawa was Canada’s most recent jurisdiction to alert drivers that they may be subject to a mandatory breath test, administered with an approved screening device, if they are pulled over, regardless of the reason for the initial stop.
Approved screening devices are commonly referred to as breathalyzers. However, the ASD is a small device that police have on hand to determine grounds for a breathalyzer. It provides the results from a breath sample provided at the scene.
Breathalyzers are larger machines usually found at police stations or inside checkstop vehicles and are used to verify blood alcohol readings for those who have been arrested. Tests with breathalyzers take more time.
“Under Canada’s Mandatory Alcohol Screening law, drivers must comply with a police officer’s demand for a sample, even in the absence of any suspicion that they have consumed alcohol,” said Acting Sergeant Amy Gagnon of the Ottawa Police’s Impaired Countermeasures Unit.
Canada’s Mandatory Alcohol Screening was amended in 2018 to allow police to demand a breath test of any driver, regardless of suspicion.
“Officers are also trained to request drivers to submit to a series of roadside tests if they suspect that the driver is impaired by drugs,” she added.
The potential consequences listed by the Ottawa police for being drunk are the same as refusing to provide a breath sample.
Consequences include having your license suspended for a year, an ignition interlock for one to three years, enrollment in Ottawa’s Back on Track program for rehabilitation, and acquiring a criminal record.
Fines include a $550 penalty, a license reinstatement fee, a minimum fine as part of federal consequences, increased insurance premiums — a minimum of $5,000 a year for at least three years, and legal costs.
The RCMP in Halifax and Saskatchewan previously announced that they would implement mandatory breath tests for all drivers pulled over. The Ontario Provincial Police also did the same.
Each jurisdiction where this rule has been implemented has seen an increase in impaired driving offences. For example, Ontario has seen a 30% increase in impaired driving crashes and charges so far this year. They hope that this measure will bring the numbers down.
Criminal defence lawyer Sean Robichaud said this law is not controversial and is very well settled in the legal sphere.
“What I’m often dealing with as a criminal defence lawyer is explaining to people that you don’t have the right to refuse. You have an obligation to provide a sample to the police when a request is made,” Robichaud told True North in an exclusive interview.
However, Robichaud said that an argument for rights could be made if a police officer made a demand without an approved screening device in their possession. He said police forces are beginning to equip all officers with an approved screening device.
“As far as the Supreme Court of Canada is concerned, it’s minimally intrusive,” he said.
Section 8 of the Canadian Charter of Rights and Freedoms states, “Everyone has the right to be secure against unreasonable search or seizure.” Section 9 states, “Everyone has the right not to be arbitrarily detained or imprisoned.”
While some lawyers have raised Charter concerns surrounding this legislation, Robichaud said it is a “very simple document.”
Although both clauses apply to roadside screenings, Robichaud said that the Charter will provide no defence to civilians as the courts determine how these rights can be applied. He added that the courts up to the Supreme Court of Canada have validated this legislation.
“I don’t see anyone succeeding at the Supreme Court of Canada on challenging that legislation. And if they do, it would cost hundreds of thousands of dollars. So, if you’re sober, I mean, it really takes five minutes,” said Robichaud. Police forces have said it takes even less, with some citing that administering the approved screening device’s breath test will take a mere 90 seconds.
“As much as Canadians may not like it, that’s a legislative change. People don’t get to decide the law; that’s for the legislation to decide. And that’s why we have all sorts of laws that we don’t agree with, but we have to live in a society where we comply with them.”
While Robichaud sees a tenuous chance of someone succeeding in challenging this law as it stands, he said that if some civil libertarians were appointed to the Supreme Court of Canada in the future, it could result in changes.
Until then, the mandatory breath tests administered with roadside approved screening devices are here to stay, with or without cause for suspicion.
EDITOR’S NOTE: This article has been updated to clarify that an ASD and a breathalyzer are two separate devices.
