New impaired driving rules kick in but are they constitutional?

Police officers are now able to authorize mandatory roadside screening for alcohol.
Police officers are now able to authorize mandatory roadside screening for alcohol.

December means Christmas and parties but it also means some Canadians over-imbibe on alcohol and then get behind the wheel.

But thanks to the new Bill C-46, police officers are now able to “authorize mandatory roadside screening for alcohol,” which means that even without a reasonable suspicions officers can compel a person to undergo a breathalyzer test.

The law also increases jail maximums from five years to 10 and it allows for dangerous-offender designations to be given to repeat offenders.

But the new law might be unconstitutional, said an Winnipeg lawyer.

“But it would seem to certainly defence counsel, that it's not proper to fight this by taking away constitutional rights, by taking away protections against unreasonable search and seizure, by taking away protections against arbitrary detention, removing a right to counsel,” said defence lawyer Scott Newman to As It Happens host Carol Off on CBC Radio.

As well, the provision opens the real possibility that officers are able to discriminate with impunity, he said. “There's race-based differences. (Indigenous Senator) Murray Sinclair of The Truth and Reconciliation Commission, who (was) a judge from the Court of Queen's Bench in Manitoba, said, ‘I would get pulled over all the time, whereas my fellow judges would never, ever get pulled over.’”

The director of a B.C. research institute said the new rules can lead to abuses by some police officers. “We are scared. We don’t often have an opportunity to assert our Charter rights because we are terrified of the consequences. We know this can escalate into the use of force,” said June Francis, director at the Institute for Diaspora research at Simon Fraser University.

But Justice Minister Jody Wilson-Raybould disagrees and said, “I am 100 per cent confident this does not violate the Charter. I have, as I have done with every piece of legislation, introduced a Charter statement which details where the Charter is potentially engaged with respect to mandatory alcohol screening. Again, I am confident this is consistent with the Charter.”

For immigrants and those without permanent status, the “the elevation of impaired driving offences to serious criminality means permanent residents could be in jeopardy of losing their permanent resident status and could potentially face deportation if they are convicted of an impaired driving offence committed on or after Dec. 18, 2018, in Canada or overseas,” wrote Stephen Sherman in Canada Immigration Newsletter.

But the new laws will be a great tool to fight impaired driving, according to one Edmonton police officer.

“I think when the lawmakers made this law that was what they were expecting to happen when the police officer goes up to the car, it should be the first thing that they are thinking about when they are walking up to the vehicle,” said Sgt. Rob Davis to Global News.

Persons who refuse the test can be charged and would be fined $2,000 for the first time and be jailed for 120 days if they are convicted for a third time.

“How many people are going to refuse to blow because they don’t think they should be asked to blow for no reason? A lot of those people are going to get criminal record and be completely sober at the time that they were dealing with police. It’s a law that I think is designed to punish the innocent,” said Vancouver lawyer Kyla Lee to Vice News.

While the new law will most likely see a Charter challenge at some point, the problem of drinking and driving is not going away anytime soon as indicated by 23 arrests made during a recent weekend in Toronto.
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