Random Roadside Breath Testing Coming to Canada?

Sometimes it actually hurts to be right.

If you’ve followed any of my earlier comments on twitter, in the media, or in this space on Slaw (Ontario’s New Road Safety Act) you will be familiar with my growing predictions that Canada is moving towards legalized random breath alcohol testing. Never in my wildest dreams did I think that the timeline for such a draconian measure would be a mere six months.

Yet, today’s National Post (Sunday October 4, 2009) is reporting that the Federal Department of Justice is considering exactly such an amendment.

As you weigh the pros and cons of allowing police the authority to take this extreme step, you will no doubt consider the very real dangers posed by the menace of impaired drivers on our roads. Having said that, it is important to understand fully what is now being proposed. The current RIDE programs and Highway Traffic Act provisions we are familiar with allow an officer to detain your vehicle for a matter of minutes. During that time the officer will ask you some basic questions, shine a flashlight in your face to get a read on your eyes, and lean into your open window to take a whiff of any alcohol-laden breath. In those short moments the officer will either come to a belief that you have consumed alcohol and make a lawful demand for you to provide a breath sample, or send you happily on you way (often with a coupon book for 0% alcohol beer tucked happily into your glove compartment).

If the Department of Justice proceeds with the trial balloon now being floated, officers could dispense with the chit chat and simply demand that any and all drivers submit to a roadside breath test. This is a considerably more invasive and time-consuming procedure requiring you to park your car, exit the vehicle and provide a suitable breath sample into a hand-held measurement device. Fail that and it’s off to the station with you — this time chauffeured behind an inch of shatter-proof glass while handcuffed in the rear of a police cruiser.

Lest you be thinking that the roadside test is merely a ‘screen’ with no consequences for those who don’t fail it, I remind you of the recent introduction in Ontario of the Road Safety Act. The RSA, as explained in detail in my earlier Slaw post, allows your licence to be suspended on the spot even without having failed the test if you blow within the “warn” range. This suspension cannot be appealed and there is no trial.

So, to recap, Ontario drivers may soon be pulled over without cause, detained and required to submit to a roadside breath test considered too inaccurate to be admissible in a court of law, resulting in the administrative suspension of their licence, and the entire process is not subject to trial or appeal. I can’t argue with the serious threat posed by impaired drivers on our roadways, but at what point do we ask — is the treatment worse than the disease?


  1. Interesting to hear of this. Here in Victoria, Australia, we’ve had a similar system to this proposal for many years. I’m no expert on Canadian or USA law, but I understand both often require probable cause — is that the right term? — to enliven various police powers?

    Our police here have the power to randomly intercept drivers, at will. They also have the right to require a person to submit to a preliminary (or screening) breath test using a small portable device. It literally takes about 15 seconds to use, with the driver just blowing into a disposable straw that feeds into the device. (It’s about the size of an old cassette Walkman.)

    If the preliminary device indicates the driver has more than the prescribed concentration of alcohol in their body, they’re required to accompany police for an evidentiary breath test. That can be at a police station, or in the back of a police car on the roadside. We also have ‘booze buses’, that set up on the side of the road with a road-block set up, and every drive going through the block subject to preliminary breath testing.

    Our police have no powers of arrest (save for certain prescribed situations) for these provisions, but it is an offence to decline various requests, with harsh driving penalties: 2 years loss of driver licence for a first offence.

    I guess it is pretty harsh, but we’ve reduced our annual road toll from a peak of over 1000 per year in the 1970s with a population of around 1 million, to a state of 5 million souls now with a road toll around the 400-odd mark, with detailed research to suggest alcohol testing played and plays a large part in that reduction.

    I’m actually surprised to hear of this move in Canada, because I’d never given it any thought and just assumed (with no real basis to do so) you had a similar system to the one I’m familiar with. It’ll be very interesting to see how these proposed provisions fare.

  2. Actually Kyle, the Australian model is one of several touted as an example of why this type of sweeping new police power should be implemented in Canada.

    However, one fundamental difference, at least within the Province of Ontario, would be how the new law interacts with the recently introduced Provincial Road Safety Act.

    The combined operation of these two laws would create a situation in Ontario where licence suspensions could be predicated on warrantless groundless stops with the sole evidentiary foundation coming from the roadside breath machine yielding a “warn” or even a “fail”. Police in Ontario would never have to go the extra step of taking a full-fledged breath test in order to impose a licence suspension. As the RSA has no trial mechanism and no appeal process, there would appear to exist absolutely no oversight or review of this serious deprivation.

  3. There are several problems with todays laws so why the government wants to add to them is rather odd.

    First, the RIDE programs across Canada are illegal.

    Impaired driving laws fall under the federal criminal code.

    In 1985 the Supreme Court of Canada determined RIDE program vehicle stops are illegal but saved under s. 1 of the charter.

    Fair enough, but the Canadian Bill of Rights is still in effect and applies to federal laws ONLY.

    Again, the drinking and driving laws are federal to where the Canadian Bill of Rights apply, thus the RIDE program stops are illegal under s. 2(a) and are not saved by s. 1 of the charter.

    Section 26 of the charter articulates that the charter SHALL not be construed as denying the existence of any other rights and freedoms that exist in Canada; i.e., the Canadian Bill of Rights.

    The federal government has not enacted the Canadian Bill of Rights Notwithstanding clause into the criminal code, thus, again, the RIDE stops are unlawful.

    No evidence collected from an unlawful stop can be used to gain a conviction, thus the breath test search is also unlawful.

    More importantly, drinking and driving is not illegal. It is only illegal under criminal code s. 253(a) if your ability to operate the vehicle is impaired by alcohol or a drug; and 253(b) if you blow over .08.

    If you blow over .08 no other evidence is required, however if you blow under .08 other evidence is required to gain a conviction.

    Thus, even if a driver admit to the cop they’ve had a few drinks, or even if the cop smells alcohol on the drivers breath, or even if his speech is slurred, or his eyes are glossy, this is not reasonable and probable grounds to demand a breath test.

    During a RIDE stop the cop has no idea who you are, they have no clue where you came from, and they did not stop you for a driving matter. The cop has no grounds whatever to demand a breath test even if RIDE program stops were lawful; and they are not.

    The provincial short term suspensions EVERYWHERE in Canada are also unconstitutional.

    The criminal code covers ALL drinking and driving BAC levels, from .01 to infinity.

    The province has no division of power to impose its own pentaly for blowing any BAC level.

    What the provinces have done by enacting short term suspensions intefers with and infringes upon the federal criminal code jurisdiction. The code covers the field exclusively, and there is no room for the province to interfer and NOW eliminate .05 to .08 from the criminal code provisions, which is exactly what it does.

    If you blow in these BAC levels you can NEVER be convicted of impaired driving even if you’re impaired because the province only suspends a driver’s licence for 3 days for a first offence. Under the Provinces scheme, you don’t even receeve a fine, however, the the criminal code calls for a one year licence suspension, a criminal record, a $1000 fine, and possible jail term for a first offence.

    So under the current bizarre Ontario law, you can still be criminally convicted for impaired operation if you blow between .01 and .05 but you cannot be crinimally convicted if you drink more and blow between .05 and .08.

    Dalton McGuilty is retarded. So was Mike Harris and Bob Rae since all were in charge at one time or another.

    Equally important, the Ontatio HTA breath demand falls under s. 48, which relies on the demand being made under criminal code s. 254.

    If you actually read s. 254, the breath demand clause, the breath test results can ONLY be used to impose charges under s. 253 of the criminal code.

    Thus, the province is statute barred from using the breath test results for provincial short term suspensions. DUH!

    As for the licence suspension issues under provicincal law, the express authority to suspend a drivers licence is provided to the Minister under HTA s. 47. The Minister delagates his authority to the Registrar, who delagates his authority to suspend the licence to the street cop.

    The cop requires reasonable and probable grounds to demand a breath test under criminal code s. 254 before a charge is laid and before a licence suspension is issued.

    Once the licence is suspended the Province provide no hearing to the driver to prove the cop had reasonable and probable grounds to suspend the licence. This is a violation of the driver’s charter rights.

    Once a licence is issues it becomes charter protected and can only be taken away from the driver with due process of law.

    None is provided by the government.

    TReasonable and probable grounds bears an onus and standard of proof. The onus is on the government and never shifts to the accused. The standard of proof is beyond a reasonable doubt.

    The driver’s licence suspension is an Administrative matter under Administrative law. Administrative law does not deal with reasonable doubt, they only deal with correctness.

    The licence Apeeal Tribunal, set up by the government, has no jurisdiction to hear the licence appeal because reason doubt is beyond their jurisdiction, and no court hearing is provided to the driver thus no LEGAL decision or court transcript is avaialable for the appeal tribunal to review.

    Thus, the government has NEVER discvharged his burden of proof.

    More problems arise as the HTA does not have a privative clause. Thus when matters are not covered by the HTA the driver has access to the ordinary courts.

    However, a licence suspension under the HTA is provided for under s. 47. As mentioned, this is the express authourity given to the cop to suspend a licence, and ALL licence suspensions under s. 47 are appealable to the Licence Tribunal under s. 50, thus the driver is statute barred from the ordinary courts as the tribunal has exclusive jurisdiction; yet the Licence Tribunal is unlawfully refusing to hear appeals for short term drinking and driving or stunt driving licence suspensions.

    Not one driver stopped under a RIDE prgram should’ve been convicted. Not one driver given a short term suspension, car impoundement, and licence suspension was ever legal.

    Class Action lawsuits should be filed against our governments.

    The laws in this country are a complete mess and they want to make them worse by adding more. It’s a complete bad joke.

  4. I have researched the area of impaired driving for over a year now and the more I read about it, the more I feel our rights are being violated. And here is why….

    Looking at the statistics of alcohol use among fatally injured drivers from 1998 to 2006 available from the Traffic Injury Research Foundation (an independent organization) the percentage of drivers killed with an (old legal limit) BAC of .08 to .16 averages out at 82%, whilst the percentage of drivers killed (while double the old legal limit) averages out at 57%.

    When you look at the statistics for the drivers killed with BAC’s ranging from .05 to .08, the numbers fall off dramatically, averaging at 6% of drivers tested, and the statistics of those at BAC’s from .01 to .049 average at 11%.

    This is what Canada Safety Council insists the problem is with a hard core minority of drivers and maintains, “High-BAC drivers (i.e. those with BACs over 0.15) represent about one per cent of the cars on the road at night and on weekends. Yet they account for nearly half of all drivers killed at those times.”

    (Now before anyone asks, the average testing rate for the presence of alcohol for drivers varies in these years from 83 to 84%, so we know we have covered the bulk of fatally injured drivers)

    The really strange thing is, why bring in Random Breath Testing at a time when the limit has now being reduced to .05 , if the statistics show the problem is with a minority of people who are simply not responsible. Toronto saw the evidence of the hard core drunk driver recently when we saw three lives erased in an instant by a blackguard accomplishing NASCAR speeds on Finch Avenue.

    By introducing the RBT, all you are going to do is widen your net, with a lower BAC to catch the people who we would assume are law abiding, as they were not dying in large numbers from 1998 to 2006, there is no reason to think they will change their spots now.
    Lest you forget every fish you catch is worth a minimum of $150………

    If these new law comes in and we start having to deal with Judge Dredd style law, what is next? These are worrying times. Regarding the use of Ireland as proof for the introduction of these draconian policies, it must be noted, (and special interest groups touting Ireland as a shining example of the success of RBT’s will not tell you this) that in this jurisdiction, you still have to be convicted.

    The majority of people obey the laws of this great land but it is cold comfort when you look up from the operating table to see the surgeon brandishing an axe instead of the required scalpel, and think to yourself.

    “Is the cure worse than the disease?”