A judgment call

Random Breathalyzer tests could violate the Charter of Rights
A judgment call
Photograph by Jack Sullivan/ Getstock

Osgoode Hall law professor James Stribopoulos, currently a visiting scholar at the Melbourne Law School in Australia, is a specialist in criminal procedure. Earlier this month, he accidentally stumbled into an experiment in comparative search-and-seizure law while on his way to tour a penguin habitat with another Canadian colleague. “I was pulled over by the Victoria police during the drive because I had my headlights on (how Canadian of me; they don’t have daytime running lights here),” he writes by email. “Almost immediately, I was required to furnish a breath sample into a roadside Breathalyzer and to provide a saliva sample. The latter is a new test they are deploying here—essentially they scrape some saliva off your tongue and see how it reacts to two chemicals that are supposed to test for cannabis and methamphetamines.” Declared alcohol- and drug-free, and turned loose, Stribopoulos and his passenger naturally wondered: could such a thing ever happen in Canada?

Last year, the House of Commons justice committee recommended that the Criminal Code be amended to permit random police stops of drivers for mandatory roadside Breathalyzer testing. Justice Minister Rob Nicholson favours the idea, and on Feb. 16 the federal Justice Department issued a discussion paper formally inviting public feedback. But the relevant section of the paper makes no explicit mention of an important obstacle to what the Australians call RBT (random breath testing): the Canadian Charter of Rights and Freedoms.

RBT was relatively simple to introduce in Australia, which had and has no equivalent to the Charter, in the 1980s. (Criminal law is reserved to the states under the Australian constitution. The state of Victoria, where Stribopoulos was stopped, adopted a human rights charter in 2008, but it covers only new laws and provides no avenue of legal action for private citizens.) In Canadian law, random vehicle stops are recognized as a form of Charter-violating arbitrary detention, but the Supreme Court has ruled—most notably in the 1990 Ladouceur decision, which the discussion paper highlights—that such checks are “reasonable limits” to personal freedom under Section 1.

What the paper doesn’t say is that Ladouceur was a close call, decided 5-4. The random checkstops we have come to tolerate were characterized, in a fairly scathing dissent authored by Justice John Sopinka, as “a total negation of the freedom from arbitrary detention guaranteed by Sec. 9 of the Charter.” Meanwhile, the majority in Ladouceur considered checkstops “reasonable” for Section 1 purposes precisely because they are relatively non-invasive. “Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle,” wrote Justice Peter Cory. “Once stopped, the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.” RBT is, by definition, a “more intrusive procedure” undertaken arbitrarily. Ladouceur, far from supporting RBT, would almost seem to rule it out.

On the other hand, the decision is two decades old. Notions of “privacy” and “intrusiveness” are somewhat fluid, and lawyers have learned not to gamble on constitutional questions that ultimately depend on Section 1 analysis. “Clearly, requiring drivers to furnish breath samples is much more intrusive than simply requiring them to stop their cars,” ventures Stribopoulos. “The case could go either way, but if I was a betting man, I would say the odds are 60-40 that it will be found unconstitutional. I think the majority of judges at the Supreme Court would think it goes too far.”

The McLachlin Court has been far from deferential to the police. It has ordered several acquittals on issues related to searches and detentions, taken a broad view of an accused’s right to remain silent, and reined in the use of sniffer dogs to detect contraband. Steven Penney, who teaches criminal procedure at the University of Alberta law school, is less eager than Stribopoulos to hazard a guess on the odds of RBT passing muster, but he notes that Sopinka’s warnings about arbitrary police power may have grown in relevance. “That particular dissent, a lot of people would describe as a particularly powerful and compelling one,” he says. “Sopinka alluded to the problems of arbitrary and potentially discriminatory enforcement. To the extent that police officers may unconsciously be stopping drivers that fit certain criteria, [RBT] would give them one more tool in the arsenal.”