Monday, October 05, 2009

Random breath tests: A frightening trial-baloon from Rob Nicholson

I'm loathe to fall into tired rhetoric and hyperbole by throwing around terms like police state and big brother run amok, but this trial balloon from Conservative justice minister Rob Nicholson is frightening, with a myriad of troubling consequences:

The federal Justice Department is considering a new law to randomly force drivers to take roadside breath tests, regardless of whether police suspect they have been drinking, Canwest News Service has learned.

Random breath testing, if adopted, would replace Canada's 40-year-old legislation on impaired driving, which dictates that police can only administer breathalyzer tests if they have a reasonable suspicion of drunk driving.

Justice Minister Rob Nicholson publicly raised the prospect of random testing recently at the annual gathering of Mothers Against Drunk Driving.

"He has his Justice officials putting together the legal parameters," said MADD chief executive officer Andrew Murie.

Nicholson, when asked whether he is considering a new law on random testing, said: "We are looking at all options in that regard."

This is a bad idea on almost uncountable levels.

Firstly, I'm curious to see how they'd get around charter provisions against unreasonable search and seizure. The police can't just stop you and compel you to submit to search. They need to have reasonable grounds for suspicion, they need probable cause. That's a fundamental tenet of a free society, and is a key part of personal liberty. It's what separates us from police states.

Secondly, is it really going to be "random" searches? I don't buy that one for a second. I'd bet good money that certain demographics would get "randomly" pulled over for testing a lot more than other demographics. And it probably wouldn't be the same demographic responsible for the bulk of drunk driving offenses.

Thirdly, I'm a decided legal layman, but this would seem to open up a huge can of legal worms. You randomly pull someone over for a random breathalyzer test, someone that under normal circumstances you have no legal probable cause for doing so. And in that process, while they blow clean you discover they have committed another offense: let's say, the possession of a small amount of marijuana.

Normally, that would be inadmissible because you had no probable cause for the search. But does the "random breathalyzer" law get your foot in the door and make an otherwise inadmissible search become admissible? Would the breathalyzer law be used as an end-run around the wider search laws to widen police powers in ways not intended by the law, and that are contrary to the charter?

For many reasons, I think this is a horrible idea. Look, I support strong sentances for drunk drivers. And if the government has sensible ideas, if they have effective proposals for police tools that will actually work, I'm willing to listen. But a shredding of the charter of rights and a curtailing of civil liberties that would have repercussions far beyond those intended is not the answer here.

Of course, such legislation would never pass without a Conservative majority. Which makes this just yet another example of the Harper Conservatives substituting politicking and appealing to fear for actual effective anti-crime legislation.

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The Rat said...

Stupidest idea ever. Drunk driving is now so socially unacceptable that all but the most die-hard drunks wouldn't consider it. The problem is that the drinking-nazis at MADD won't stop. How can they? Once they say the law is good enough they're out of a job. So instead they keep playing off province against province saying serially that X has a tougher law, what a shame you are soft on drunk drivers! Nicholson is a fool to listen to MADD and a bigger fool if he thinks this appeals to the Conservative base. It doesn't.

Mike said...

The federal Justice Department is considering a new law to randomly force drivers to take roadside breath tests, regardless of whether police suspect they have been drinking

Seig Heil.

Screw reasonable and probable grounds eh?

Idiot Conservatives. At least this kind of legislation would never survive a charter challenge.

Barcs said...

for all the reasons you listed Jeff. I agree with you.

And I hope that like Mike says that it wouldn't pass a charter challenge.

But I am not so sure as he is. it occurs to me that they don't really need probable cause to stop you and talk to you now.... only to search.

MississaugaPeter said...

Sorry, I disagree. I think it is a great idea.

I was stopped in Sydney, Australia, in the middle of the day, with my wife and four children in tow. Had nothing to drink earlier that day. Passed the quick blow test (didn't really blow, just counted 1,2,3,4 into some wand).

Felt great the rest of the day knowing that the Aussies consciously were keeping drinkers off the road. Don't get me wrong, I HAVE NO PROBLEM WITH PEOPLE DRINKING, I DO HAVE A PROBLEM WITH PEOPLE DRINKING AND DRIVING!

BTW, I would support Nicholson in pushing the allowable level to 0.05 from 0.08 (something the Aussies did in 1991).

rockfish said...

Unfortunately, I'm betting a majority of Canadians feel the surrendering of rights on this issue are within reason (I'm half-way to agreeing myself)... The public demands action on what is perceived as lax if not soft sentences in these cases; they are also wanting better ways to prevent the tragedies that drinking and driving so often becomes. Show me how Scandinavian countries have dealt with this, and what were the ramifications when Ireland passed it. Besides the charter issue, I am not so certain that there can't be some stipulation that "roadside checkpoints be places where random breathalyzers are permitted."
If we keep fighting the public opinion on these issues (instead of granting that some leeway has to be found) I suggest we will soon be considered unelectable.

lyrical said...

So the Conservatives want to have random breathalyzer tests to catch drinking drivers, but they don't want to prevent VLT addicts from gambling in bars and restaurants.

It looks like they're getting sloppy with the lobbyists.

MadMaxians said...

Why not just cut to the chase. Go for the police state and rewrite the constitution. After all, they have our best interests in mind (don't they always).

Why the heck do cops need probable cause anyway? D-uh.

Completely unacceptable. What next?

Can't believe our gov't is considering such.

How far we have fallen.

This is not progress.