The Canadian Press
January 30, 2020

CALGARY — Police say all drivers in Calgary can expect a breath test if they are pulled over or go through a checkstop — an approach an anti-drunk-driving group wants forces elsewhere to follow, but one that defence lawyers warn is rife with constitutional pitfalls.

Since December 2018, when new federal impaired driving legislation took effect, police in Canada have been able to demand preliminary roadside samples without reasonable suspicion that drivers have been drinking.

For more than a year, Calgary had eight traffic officers at any given time doing mandatory alcohol screening, Const. Andrew Fairman with the alcohol and drug recognition unit said Thursday.

That number is going up to about 200 now that all patrol officers have been equipped with devices and trained.

“It’s a choice by the Calgary Police Service to utilize the tool that has been provided to us by the federal government to try to save lives on our roads,” said Fairman.

“In theory, the risk has gone up significantly of you being detected if you’re one of those people that’s going to drive under the influence.”

Before the legislation took effect, Calgary police had 160 screening devices. Now there are 300.

Eric Dumschat, legal director at Mothers Against Drunk Driving Canada, is urging other police services in Canada to follow Calgary’s example.

“As far as I’m aware, Alberta’s taking the lead on this one,” he said.

“This is a system that will save lives as well as a system that will prevent people from being injured in horrific preventable crashes.”

Calgary police have taken more than 15,600 samples since starting mandatory checks more than a year ago. Those have resulted in 142 Criminal Code charges and 359 provincial sanctions.

Fairman said those numbers could rise with more officers testing.

In 2015, more than 700 people were seriously injured or killed in impaired driving cases in Canada.

Both MADD and the Calgary Police Service noted that deaths and injuries have fallen drastically in other countries with mandatory alcohol screening. In Ireland, traffic deaths dropped by 54.5 per cent between 2006, when its law took effect, and the end of 2015. Serious injuries fell by nearly 60 per cent.

Ian Savage, president of the Calgary-based Criminal Defence Lawyers Association, said police have not shied away from using their new powers and he’ll be watching closely as constitutional challenges work their way through the courts.

“Essentially this is what we call a warrantless, groundless search and seizure,” he said.

“In this case, the law does not require the officer to have any grounds whatsoever to make a person blow and that, on the surface, would appear to be unconstitutional.”

Kyla Lee, a Vancouver-based impaired driving lawyer, said rights to counsel and to be free from arbitrary detention are also at issue.

Lee said she’s not aware of any other police departments touting stepped-up mandatory alcohol testing measures.

“Knowing that there have been several constitutional challenges filed in this country to that law, it’s very brazen and I am surprised to see it.”

This report by The Canadian Press was first published Jan. 30, 2020