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Criminal & DUI Lawyers, including:
Three Former Crown Prosecutors

Random Roadside Breath Test

In December of 2018 our impaired driving laws were completely overhauled by Parliament.  We have brand new legislation and some of the issues or topics under the new legislation are quite controversial and one of the most controversial ones is the new mandatory alcohol screening at the roadside.

What this involves is a police officer can now stop a car.  They have to have a legitimate reason for stopping the car. For example the person is speeding or they want to do a licence check but there’s all sorts of reasons to stop the car.  The police can stop you for many many reasons including just checking your licence for safety reasons in your vehicle.

So in that situation now an officer is simply able to demand that you provide a roadside breath sample into what’s called an alco test and they don’t have to have any grounds for this.  They don’t have to have any reasonable suspicion. You can appear to be completely sober and this is very controversial.

Under the old law when they pulled you over in that fashion they had to have a reasonable suspicion that you had alcohol in your system.  In other words they needed to smell some alcohol on your breath or you had to admit to have been driving. You had red glassy eyes and then they’ve got reasonable suspicion or grounds to demand the roadside breath test.

Now they don’t.  So you pull into a RIDE program they can check everyone even if they appear completely sober.  This is very controversial. A lot of commentators, a lot of lawyers online and in websites and blogs are stating this is going to be challenged and it is.  We’ve seen challenges going on right now in our system. The challenge is under section 8 that this is an unreasonable invasion on your privacy. Its unreasonable search and seizure.  We see challenges that it’s an arbitrary detention. You’re being detained at the roadside for effectively no reason. You’re sober. Why are they doing this? And the other issue which is also problematic in my view is will this lead to racial profiling?  Some police may be discriminatory. I’m not saying they are but there have been some commentators who say some police officers are and it’s almost akin to carding. Are they going to target certain minorities in this fashion?

So these are the issues. I think they’re going to play out in court over the next many years and this situation, this issue will probably eventually wind its way up to the Supreme Court of Canada before we get a decision as to whether this law is going to be struck down or not.

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