Aug 21, 2020
A Saskatoon couple who have experienced first-hand the effects of impaired driving are pleased a Saskatchewan judge has ruled that the law allowing police to demand a roadside breath test from any driver without needing suspicion of drinking is constitutional.
Lou and Linda Van De Vorst’s son, daughter-in-law and two grandchildren were killed by a drunk driver in 2016. Since then, the couple have become strong advocates for impaired driving laws. They believe the roadside breath test is another way to make roads safer.
“I was very, very happy when they passed that law back in 2018 … I’m glad that it held up in terms of a Charter challenge. I think it is just an extra tool that’s given to police to get impaired drivers off the road,” Lou said.
This appears to be the first ruling on a Charter challenge of mandatory breath screening, federal legislation that was passed by the Liberal government and took effect in December 2018. Prior to the new law, police required some reason — such as slurred speech, bad driving or the odour of alcohol — to demand that a driver take a breath test.
The ruling was made in a lower provincial court, meaning it’s not binding on other cases but will likely be taken into consideration.
The Van De Vorsts are involved with Mothers Against Drunk Driving (MADD) and have shared their family’s tragic story in schools. While education is a great way to raise awareness, roadside check stops and the Report Impaired Drivers program are another way to tackle the issue, Lou said.
“If you’re not drinking, you shouldn’t have to worry about it; you just take the test and away you go,” Linda said. While volunteering at police check stops through MADD, she’s seen people receptive to the mandatory roadside test initiative in identifying intoxicated drivers.
“We have seen the public thanking police for taking the time with this because they know they want to get home safe, too,” she said.
Judge Morris Baniak found that mandatory screening violates the Charter’s Section 8, which protects against unreasonable search and seizure. However, Baniak concluded that the violation is acceptable under the Charter’s Section 1, which allows for limited Charter violations if they can be justified in a free and democratic society.
“Courts have recognized for a long time that detection of impairment by police officers through observation or interrogation is often ineffective,” Baniak wrote in his analysis.
“Previous attempts or strategies to detect alcohol in a driver such as observation for signs of impairment like slurred speech or bloodshot eyes, smell of alcohol, questioning of a driver about his alcohol consumption and field sobriety tests have all had varying degrees of success but also of failure,” the ruling goes on to say.
“And since driving … is not an inherent right and is subject to extensive regulations to protect life and property, and since I find that there are no obvious or apparent less restrictive schemes that the government could employ, I find that the Crown has proven, on a balance of probabilities, that the legislation impairs the accused’s rights in a minimal way.”
The case began when police pulled Andrew Morrison over in a rural area outside Saskatoon just after midnight.
“They observed the vehicle for some 10 minutes before effecting the stop and did not observe anything unusual or suspicious about Mr. Morrison’s driving,” Baniak wrote.
A Corman Park police constable told court it was a routine traffic stop, and said it’s now the force’s policy to conduct breath tests on all drivers pulled over between 6 p.m. and 6 a.m.
Baniak ruled that the random nature of the stop did not violate the Charter’s Section 9, which protects the right not to be arbitrarily detained or imprisoned. He cited law that allows police to conduct brief traffic stops to check for licence and registration, vehicle fitness, and sobriety.
“The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive,” Baniak wrote. “Conversely, the public utility of police officers having the ability to detect alcohol in drivers who otherwise do not display any observable signs of alcohol consumption is very high. I find that Mr. Morrison’s Charter rights were not breached.”
A similar ruling on random stops was recently published by Alberta’s superior court in R v. Labillois. In that case, an Alberta RCMP constable was recorded incorrectly telling the driver that “the new law gives me authority to stop you.” In reality, the mandatory screening law did not give police new powers for pulling over a driver, only for conducting a breath test once a driver is already pulled over. However, Justice Keith Yamauchi still concluded police had not violated the driver’s Charter rights in conducting the stop.
In the Saskatchewan case, Morrison registered a fail on the roadside screening device. The police officers told the court that Morrison had initially told them he hadn’t been drinking, but then later said he’d consumed two “tall boy” cans of beer at a friend’s house.
The ruling — which addressed the constitutional challenge and a few other procedural issues — does not say what Morrison’s blood alcohol level was when he was later given a full breathalyzer test at the police station. Morrison was subsequently charged with impaired driving and with having a blood alcohol concentration above the legal limit within two hours of driving.
Morrison’s lawyer, Michael Owens, did not immediately respond to a question about whether he’ll appeal the ruling.
“I just hope that if there’s any further challenges like that that it would stand up … With good laws like that, it just helps the police get those impaired drivers off the road,” Lou said.
The mandatory screening legislation was heavily debated in Parliament, particularly in the Senate, where concerns were raised that the law is unconstitutional and could see racial minorities disproportionately targeted. Critics also noted that impaired driving rates have already fallen steeply in Canada over the past two decades.
Baniak wrote that he believes the new law will be proven effective at further preventing impaired driving.
“The salutary effects of the challenged legislation may become more apparent with the passage of time,” he wrote. “However, even at this early stage it is becoming clear that it is helpful to police in detecting the presence of alcohol in drivers who do not display readily discernible symptoms. The present case is an example of that.”