Sweeping changes to Impaired Driving Laws

[RCDtpr]

It gets worse

"OTTAWA -- The Supreme Court of Canada is upholding procedures that permit shortcuts for allowing a motorist's breathalyzer test results into evidence -- even in cases where demanding the breath sample may have been unlawful."
http://www.ctvnews.ca/canada/supreme-court-of-canada-upholds-procedure-for-allowing-breathalyzer-evidence-1.3491387

and

"Legislation allowing alcohol testing of drivers without prior suspicion tabled on Parliament Hill
If Bill C-46 is passed into law, “police officers who have an approved screening device on hand would be able to test any driver they lawfully stop, even if the officer does not suspect the driver has alcohol in his or her body,” the federal justice department states on its website."
http://www.canadianunderwriter.ca/insurance/legislation-allowing-alcohol-testing-drivers-without-prior-suspicion-tabled-parliament-hill-1004112201/

I understand that police can stop anyone operating a motor vehicle and I am OK with that.

But i don't want to see our rights eroded by stealth

Just to be clear.......you are aware we can demand an ASD already without reasonable grounds to believe you're impaired right?  Reasonable suspicion and reasonable grounds are two very different things and suspicion is all that is required for an ASD demand whereas reasonable grounds are what's required to make an arrest.

Either way......no police officer anywhere is going to waste their time administering an ASD if there's no reason to think a person will fail.  There is absolutely no benefit to me by making you blow into an ASD that I know you'll pass.

 

[RedcapCrusader]

How often are the approved screening devices calibrated and recorded in a log book?

When marijuana is legalized, there will be problems with testing. In the US (all US States???) if police smell it during a vehicle stop, the occupants and vehicle can be searched.


http://www.canadianunderwriter.ca/legislation-regulation/new-impaired-driving-laws-let-majority-stoned-drivers-escape-prosecution-advocacy-groups-1004117528/

New impaired driving laws could let ‘majority of stoned drivers’ escape prosecution: advocacy groups

States that have recently legalized have had their state courts rule that the smell of marijuana is no longer sufficient probable cause/reasonable suspicion for a search.

The same will likely occur here.

 

[brihard]

How often are the approved screening devices calibrated and recorded in a log book?

They are calibrated against an alcohol standard monthly.

 

[ModlrMike]

States that have recently legalized have had their state courts rule that the smell of marijuana is no longer sufficient probable cause/reasonable suspicion for a search.

The same will likely occur here.

So kind of how the smell of alcohol thing works then?

 

[RedcapCrusader]

So kind of how the smell of alcohol thing works then?

Can't get a search warrant for smell of alcohol, but I can demand a breath or blood sample.

 

[shawn5o]

Just to be clear.......you are aware we can demand an ASD already without reasonable grounds to believe you're impaired right?  Reasonable suspicion and reasonable grounds are two very different things and suspicion is all that is required for an ASD demand whereas reasonable grounds are what's required to make an arrest.

Either way......no police officer anywhere is going to waste their time administering an ASD if there's no reason to think a person will fail.  There is absolutely no benefit to me by making you blow into an ASD that I know you'll pass.

Good points - Thanks exRCD

 

[Rifleman62]

How often are the approved screening devices calibrated and recorded in a log book?

They are calibrated against an alcohol standard monthly.

The reason I asked was that in BC several years ago the RCMP could not prove the ASD were calibrated and when.

 

[brihard]

Reviving a necrothread with the latest.

Mandatory Alcohol Screening has survived its first direct challenge on Charter S.8 grounds for unreasonable search and seizure.

BLUF: The constitutionality of MAS was challenged under S. 8 and 9 of the Charter in a voir dire in Saskatchewan provincial court. The judge found no breach of S.9. The judge found a breach of S.8, but it was saved by S.1. The evidence flowing from the MAS test was admitted. This decision is not binding on other cases or other jurisdictions, but there is now a well articulated Charter analysis of MAS

More detail: The traffic stop (Corman Park Police, Saskatchewan) was completely random, purely for the purpose of checking driver and vehicle fitness. The court's analysis followed the familiar case law in Dedman and Ladouceur. The court found no issues with the stop. A MAS demand was made, the driver blew a fail, and was arrested. He provided a breath sample at the station, which apparently resulted in him being charged with over 80.

Defence filed a number of challenges. One, a challenge under S.9 of the Charter, resulted in the judge finding that there was not an arbitrary detention or arrest. The vehicle stop was well within established statute and common law.

The challenge under S.8 - unreasonable search and seizure - is basically 'the big one' that has been anticipated since MAS was first proposed. The court looked at it and, as would be expected, found that there was a breach of S.8, as the search was, on its face, unreasonable. The court then did a S.1 analysis, applying the Oakes test to see if the law could be saved.

Ultimately the court found that:
- The law pursues a pressing and substantial objective. The court explicitly took note of Parliament's comments in the preamble of the law that amended the impaired driving laws, and basically highlights 'what we were doing wasn't cutting it, and this was the next logical step to try".
- The law is rationally connected to the objective (no difficulty with this one).
- The law is minimally impairing of rights and freedoms; there's discussion of the highly regulated nature of driving, and that prior efforts to eliminate drunk driving have not been successful.
- The infringements on freedom are proportionate to what the law is trying to achieve.

Finally, the court looked at how broadly its scope applies. It found that it can only rule on the constitutionality of MAS in the narrow context of the admissibility of the evidence. A provincial inferior court's ruling isn't binding on other jurisdictions or cases. So, all said, the judge's ruling in this case helps to lay the groundwork for future analysis (and does it quite thoroughly, I think), but doesn't settle the issue for Saskatchewan or elsewhere.

I won't be surprised if we see this one appealed.

http://canlii.ca/t/j9462