In a matter of days, we will see substantial changes in our legal system in Canada. The most notable of these changes is the change to our impaired driving laws, which will permit the police to conduct random breath tests on any lawfully stopped driver.
I have written previously on this blog about how random breath testing would disproportionately affect people of colour, the disturbing changes to DUI laws and what the SCC decision R. v. Suter means for random breath testing. I think it’s fair to say that I am strenuously opposed to the idea, and I fully intend to launch a constitutional challenge to this law.
But I also want to encourage all drivers who are asked to submit to a random breath test to comply with the demand. And here’s why.
I have a real concern that random breath testing is going to lead to an increase in refusing to blow charges. The reason for this is simple. In Canadian society, we have a very deeply ingrained respect for the rule of law. Our respect for the rule of law includes our respect for our Charter of rights. And while many people may not be able to name each individual Charter right they have, in my experience, most people can tell you pretty clearly when their rights have been violated.
Roadside breath testing already violates the Charter. The Supreme Court of Canada has repeatedly ruled that roadside breathalyzers are not constitutionally valid, except for three factors: the reasonable suspicion requirement; the forthwith requirement; and the use immunity that accompanies them.
And most of the people who occupy our roadways are aware of this. They know that you cannot simply be pulled over, asked to blow, and subjected to a bodily search without grounds. They may not be able to articulate what a reasonable suspicion is (most police officers cannot either) but they can articulate that the officer did not have grounds and reject the demand on that basis.
Removing the grounds requirement is something that will only make more people follow their natural inclination to stick up for their Charter rights. Removing the reasonable suspicion requirement will lead to more refusals as more people question the authority of police to demand a sample where there is no basis to believe the driver has been drinking.
Certainly the government knew this when it drafted the law. The government heard from dozens of legal experts - myself included - about how this law violated the Charter. Many people expressed concerns directly to the members who were responsible for studying the legislation about an increase in refusal to blow charges.
So they knew that this was about to happen.
And yet, rather than create a sensible law that would allow drivers a fair opportunity to assert their Charter rights, particularly in the transitory period, they decided to make the playing field extremely uneven.
You may recall that the federal Liberal government campaigned on a platform that included eliminating mandatory minimum sentences for many offences. Now, that has not happened. But what is about to come into force and effect with Bill C-46’s final round of changes on December 18, 2018 is a new mandatory minimum penalty for refusing to blow.
Currently, a driver who refuses to provide a sample faces a mandatory $1,000 fine, one-year driving prohibition, and criminal record. After December 18, 2018, the criminal record and driving prohibition remain the same, but the driver now has to pay a mandatory minimum $2,000 fine.
$2,000 for a first offence on a summary conviction is an insanely high amount of money. $2,000 as a mandatory minimum is going to be impossible for many people to pay. I don’t know very many people who have $2,000 left at the end of every year, much less the end of every month. And for right-minded, factually innocent people, who refuse to blow after December 18, 2018, this will be the consequence.
This will mean single mothers, taking their children to school. $2,000 fine. A working parent supporting an immigrant family, driving the only family vehicle home from work. $2,000 fine. A baby boomer on a fixed income taking their much more elderly parents to and from medical appointments. $2,000 fine.
All of these people will be automatically and without reprieve out of pocket $2,000 if they refuse to blow. Even if they do not have a drop of alcohol in their body.
How is this just?
The government will tell you that the aim is to decrease the incentive to refuse to blow. And sure, that makes sense on its face. But where the consequences for refusing to blow and blowing over are the same, the logic is there. The government is instead trying to compel drivers to participate in a process that is bound to be found unconstitutional by extorting money through an increase in the minimum penalty. You are liable to get a lesser penalty if you have a low BAC reading than if you have a high one.
So don’t refuse.
Give evidence against yourself.
Comply with an unconstitutional law.
Subject yourself to an arbitrary and unreasonable search.
Because the government has you by the pocketbook.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.