Hey! Look how much we care about drunk driving!!

In what I’m sure is completely coincidental timing, coming as it does as Canadians express their outrage over former Conservative MP Rahim Jaffer (loving husband to boot-throwing, PEI hating, airport security staff berating Conservative minister Helena Guergis) walking into a courtroom facing charges of driving under the influence and possession of cocaine, and walking out with a $500 fine for careless driving, comes this bit of justice-related diversion from Conservative Justice Minister Rob Nicholson:

The Harper government appears ready to move ahead on imposing random roadside breath testing, which a new federal discussion paper says has produced "remarkable results" in catching more drunk drivers in other countries.

The Justice Department is inviting public input on the idea of random sobriety tests and federal officials plan to meet this month and next with provincial ministers and other experts to measure support.

In a rare move, the federal government has posted on its website a discussion paper, weighing the benefits of random testing, seeking feedback by the end of April.

Empowering police to conduct random breath tests would replace Canada's 40-year-old legislation on impaired driving, which dictates that breathalyzer tests can only be administered when there is reasonable suspicion of drunk driving.

You know, my first thought was that this was an attempt to distract from the latest drama of everyone’s favourite Conservative power couple, but on second thought, if it is, it’s a pretty poor one. After all, it only serves to draw attention back to the Jaffer case.

Would this proposed change -- which as I’ve written before is a really bad idea, a completely draconian invasion of privacy, unlikely to do much to prevent drunk driving, and could quite possibly be unconstitutional – have made any difference in the Jaffer case? Not with the facts as they’re known at the moment. (We could use more facts, though.) The police apparently did perform a breathalyzer in this case, which Jaffer is alleged to have failed. If there was a problem with the admissibility of that search, that may have led to the plea bargain, we don’t know right now.

The whole point of this proposal though would be to subject many more people to random searches to see if they happen to be drinking and driving – and maybe have a look around their car for other fun stuff at the same time. If the Jaffer case shows anything though it’s not that the problem is getting them pulled over, it’s what happens after that, and as the case is turned over to the justice system.

Everything in law-making is a balancing act, security vs. personal liberty. And if you’re asking me to sacrifice a great deal of my personal liberty for a marginally greater likelihood of seeing people given meaningless $500 fines, then I’d say no, and try coming up with a plan that isn’t completely stupid, please.

Personally, I think the problem isn't the laws. It's a lack of resources to enforce them. Invest in police, and invest in a justice system so they have the resources to actually try cases. Too often, prosecutors feel pushed into plea bargains to keep their clearance rates up, because they don't have the time to deal with the backlog of cases. There's also the fact prosecutors are judged on their win/loss records, leaving them leery of pursuing borderline cases.

If you really want to get tough on crime, let's start there.

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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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