Amendment to Bill C-46

Conservative senators have led the Senate’s legal affairs committee to pass an amendment to Bill C-46 that will remove allowance for law enforcement officers to conduct random roadside testing breathalyzer tests, or mandatory screening. The 6-5 vote was dominated by five Conservative senators, with the tie breaker coming from former Liberal MP Senator Serge Joyal. All five independent senators on the committee appointed by Justin Trudeau voted against the amendment.

Currently, Canadian police are required to have reasonable grounds to demand breathalyzer tests from drivers; under the removed provision, police would be allowed to demand a breathalyzer test from any driver, with or without reasonable grounds.

“Mandatory alcohol screening is the centrepiece of this legislation, we are determined to ensure that mandatory alcohol screening goes forward. Partisan politics has nothing to do with saving people’s lives, and mandatory screening will save lives.” Justice Minister Jody Wilson-Raybould

The legal affairs committee upholds that random testing is not constitutional, as section eight of the Charter of Rights and Freedoms protects against unreasonable search and seizure.
Additionally, delays in passing the legislation with the provision intact are a concern. As Conservative Senator Denise Batters states, “We had criminal defence lawyers with lengthy careers in this field tell us that these provisions would lead to a decade of Charter challenge litigation.”

The Liberals have raised concerns over the contradictory history of Conservative senators on this issue, as in 2016, Conservative MP and former cabinet minister Steven Blaney himself introduced a private members bill that included random testing.

The inability to breathalyze suspected impaired drivers may lead to incorrect assessments of drivers’ impairment on Canadian roads. According to Mothers Against Drunk Driving CEO Andrew Murie, without the use of a breathalyzer test, police miss almost 90% of impairment identification of blood alcohol levels of .05% and 50% of impairment over .08%.

Justice Minister Jody Wilson-Raybould has stated she is “extremely disappointed” that the amendment has been passed, and will insist that random testing be re-inserted into Bill C-46 before it is made into law.

Responses to the Change

The government has stated it will not delay Bill C-46’s companion bill, C-45, in light of the new development, which means that consuming marijuana may become legal before stringent impaired driving regulations are put into place.

In response to the amendment, independent senator Marc Gold stated, “I think the government has made a policy choice in the interests of reducing the harm caused by drunk driving…It is true that we’ve heard a lot of testimony from lawyers and law professors about the infringements of the Charter that random and mandatory testing necessarily entails, but we also had evidence to the contrary from eminent scholars in their own right who believe, as the government does, that the mandatory alcohol testing is justified under the Charter of Rights.”

“It’s been spoken in support of by a number of senior Conservatives,” said government leader in the Senate, Peter Harder, “and I find it passing strange that when it appears in a government bill, the senators of the Conservative caucus would unanimously oppose it.” As for the amendment, he says, “It is unacceptable…It guts the bill, the intent of the bill.”

When the House of Commons studied the bill, constitutional expert Peter Hogg testified that random testing would be Charter compliant because driving within Canada is already a highly regulated activity, and believed the courts would approve of the added restriction because of the danger associated with impaired driving.

In a 2016 study by the US Centers for Disease Control, it was reported that Canada holds the number one spot amongst the world’s richest countries for deaths related to alcohol impairment, with drunk driving playing a role in 34% of vehicular fatalities.

This most recent amendment is not the first proposed by Conservative senators in the process of legalizing marijuana across the country; they have also unsuccessfully pushed for parliamentary approval prior to establishing THC blood level limits and that scientific evidence be produced to show the connection between THC to level of impairment.

When the amended bill is presented to the Red Chamber next month, government leader Peter Harder says he will ask members to reject the legal affairs’ amendment before the final vote takes place.