The Liberal government recently introduced Bill C-46, which would update, simplify and rationalize the federal impaired driving law. In terms of traffic safety, the most important change is the “mandatory alcohol screening” (MAS) provision. However, defence lawyers and others claim that the current law works well and that MAS is unnecessary. It is difficult to believe that anyone can credibly claim that all is well, when impairment-related crashes kill approximately 1,000 Canadians a year and injure almost another 60,000, a disproportionate number of whom are teenagers and young adults.
Canada has long had a poor impaired driving record. For example, the U.S. Centers for Disease Control and Prevention reported that Canada had the highest percentage of alcohol involvement in crash deaths among 20 high-income countries in 2013. Canada also had the second highest rate of alcohol-related crash deaths per 100,000, despite having one of the lowest rates of alcohol consumption. Canadians drink considerably less than residents of many of these countries and yet are much more likely to die in an alcohol-related crash. Not surprisingly, almost all of these countries have comprehensive MAS programs.
The enactment of MAS would change only one aspect of Canada’s impaired driving law – namely, the basis for demanding a roadside breath test. Canadian police already have authority to stop drivers to inspect their documents and question them about their driving and sobriety. However, a roadside breath test can only be demanded from a driver who is reasonably suspected to have alcohol in his or her body. Numerous studies indicate that the police detect only a small fraction of drinking drivers when they are required to rely solely on their own unaided senses, as is currently the case in Canada.
Bill C-46 would authorize the police to demand a roadside breath test from any driver whom they have lawfully stopped. These breath test results would not be admissible in court, but rather, could only be used to determine if further testing is justified. Drivers who pass the roadside test would be free to go. Drivers who fail would be informed of their right to legal counsel before being subject to additional breath tests that could be used in court.
Forty-five years of research in numerous countries has established that MAS dramatically reduces impaired driving and crash deaths. For example, personal injury crashes involving a drunk driver decreased 56% in Sweden following the introduction of MAS in 1970. The European Transport Safety Council concluded that increasing MAS to 1 test per 16 EU inhabitants would save 2,000 to 2,500 lives a year. When Switzerland enacted MAS, the percentage of alcohol-positive drivers fell from about 25% to 7.6%, and alcohol-related crash deaths dropped approximately 25%.
New Zealand’s MAS program resulted in a 54.1% decrease in total serious and fatal nighttime crashes and saved society more than $1 billion in 1997. Ireland’s MAS legislation came into force in July 2006. By the end of 2015, total traffic deaths had fallen 54.5% and serious injuries had decreased 59.8%. Rather than overburdening criminal justice resources, MAS greatly reduced impaired driving charges, which fell from approximately 18,650 to 6,525.
While MAS, like many other amendments, will face Charter challenges, it must be put in the context of other accepted screening procedures. Millions of Canadians are routinely subject to mandatory screening at Canadian airports, borders, courts, and other government facilities. In 2015, an estimated 131 million passengers “enplaned and deplaned” at Canadian airports, where it is not uncommon to wait 10 to 15 minutes before being required to remove one’s shoes, belt and jewellery; submit to a full body scan; empty one’s pockets into a tray; and/or submit to a thorough pat-down search in public. The roughly 91 million returning residents and visitors entering Canada each year may be subject to similar procedures.
The Canadian courts have never held these mandatory searches, or those imposed on courtroom entrants, to violate the Charter. For example, the Ontario Court of Appeal simply asserted that it was “notorious” that violent incidents had occurred in Ontario courtrooms and that requiring individualized suspicion would not be feasible. The Court stated that searching all courtroom entrants makes for a safer environment, is not intrusive or stigmatizing, and does not violate the Charter.
The Court’s arguments apply with far greater force in regard to MAS. Driving is a privilege, not a right. The risks posed by impaired drivers are several hundred times greater and far better documented than the risks posed by potentially violent courtroom entrants. The testing of drivers is minimally intrusive, entails no stigma, and takes an average of two minutes while drivers remain seated in their vehicles. The current requirement for individualized suspicion to screen drivers has significantly undermined the effectiveness of the federal law, in that it has not deterred millions of Canadians from drinking to excess and driving, nor prevented impairment-related crashes from remaining the country’s largest single criminal cause of death.
Put bluntly, far more Canadians are killed in alcohol-related crashes every year than by terrorists on airplanes, travellers at our borders or courtroom entrants. MAS operates the same way and serves the same protective purposes as airport, border and court screening. Given that the courts have upheld the constitutionality of these procedures, there is no principled basis for reaching the opposite conclusion regarding MAS. It is reassuring that Peter Hogg, Professor Emeritus at Osgoode Hall Law School and Canada’s leading constitutional law scholar, shares our view.
MAS is not a panacea, particularly if implemented in a half-hearted manner. More drivers will need to be stopped and far more drivers will need to be screened. Nevertheless, decades of experience in numerous countries indicates that well-publicized comprehensive MAS programs in Canada would save hundreds of lives, prevent thousands of injuries, and reduce the social costs of impaired driving by billions of dollars each year. The benefits of MAS will accrue to all road users, with the greatest savings of lives occurring among teenagers and young adults – the segment of the population most at risk of alcohol-related crash death.
The Federal Government is to be congratulated on introducing this critically important and overdue traffic safety measure.
Robert Solomon, Distinguished University Professor, Faculty of Law, Western University, and National Director of Legal Policy, MADD Canada.
Erika Chamberlain, PhD, Dean and Professor, Faculty of Law, Western University.
Dr. Roy Purssell, Professor, Department of Emergency Medicine, University of British Columbia, and Emergency Physician, Vancouver General Hospital.