Saskatchewan deems roadside breath testing sans suspicion constitutional

Oct 14, 2020

In January 2019, policemen spotted a car in Martensville, a rural area just outside Saskatoon shortly after midnight. They observed the vehicle for about ten minutes before effecting the stop and did not observe anything unusual or suspicious about the driver’s driving.

However, the driver was pulled over and an officer conducted a breath test at the driver’s window which registered as a fail. The driver was then arrested for impaired driving of a motor vehicle. The man challenged the provision, declaring it unconstitutional under the Charter of Rights and Freedoms. This man was Andrew Morrison.

Now, a Saskatchewan judge has ruled that as per a new section in the Criminal Code, police demanding a roadside breath test without suspicion is constitutional.

The ruling comes as a first-of-its-kind challenge on a Charter of mandatory breath screening. As per federal legislation passed by the Liberal government in December 2018, police required some reason — such as slurred speech, bad driving or the odour of alcohol — to demand that a driver take a breath test.

While Section 8 of the Charter protects against unreasonable search and seizure, Judge Morris Baniak concluded that the violation is acceptable under the Charter’s Section 1 allowing for limited Charter violations – provided they can be justified in a free and democratic society.

“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. 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,”

Judge Baniak’s ruling.

With regard to Morrison’s case, a Corman Park Police Service constable told the court that stopping Morrison’s car was a routine traffic stop and also added that it was the service’s policy that all drivers pulled over between 6 p.m. and 6 a.m. would be subject to a breath test. Police officers further told the court that although Morrison had initially claimed that he hadn’t been drinking that night, he later admitted to consuming two “tall boy” cans of beer at a friend’s home.

Judge Baniak ruled that the stop’s random nature did not violate Section 9 of the Charter which protects a citizen’s right to refrain from being arbitrarily detained or imprisoned.

“The detention was relatively brief, and the process of obtaining the breath sample was minimally intrusive. 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,” added Baniak.

Furthermore, the ruling went on to address the constitutional challenge in addition to other procedural issues. However, it does not reveal the value of Morrison’s blood alcohol limit post his breathalyzer test at the police station. Subsequently, Morrison was charged with impaired driving as well as having a blood alcohol concentration above the legal limit within two hours of driving. Whether Morrison’s lawyer will further appeal this provincial court ruling is yet to be seen.

Morrison’s case isn’t the first time a court has dealt with such an issue. Alberta’s superior court also had a similar ruling on random stops which was published in the R v. Labillois. Therein, an Alberta RCMP constable was recorded incorrectly telling the driver of a stopped car that the law gave him the authority to stop vehicles.

It is essential to note that 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, in this case too, Justice Keith Yamauchi concluded that the driver’s Charter rights weren’t violated with the constable conducting the stop.

Across the country as well, there are numerous ongoing Charter challenges against the mandatory screening. However, many have been delayed as a result of the ongoing COVID-19 pandemic that shut down courts in spring 2020.

The Parliament also saw heavy debates centred around the mandatory screening legislation. Most of these were in the Senate where concerns were put forth that the law is unconstitutional and encouraged the disproportionate targeting of racial minorities. Critics also pointed to the fact that the past two decades have seen a steep decline in the rates of impaired driving across Canada.

With regard to the present case of Andrew Morrison, Judge Baniak wrote that he is of the strong opinion that the new law will be proven effective at further preventing cases of 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,” he concluded.