If you want to limit the ability of police to harass particular communities, giving them broader latitude to erect checkpoints and delay commuters seems counterintuitive, to put it kindly –
Bill C-46, the Liberals’ revamp of impaired driving in the Criminal Code, became law on June 21. But I haven’t been able to stop thinking about it, partly because I wonder if detainees who will one day bring Charter challenges against its various provisions have already, somewhere out there in the vast expanse of this land, had their historic run-ins with the law. The main purpose of C-46 is to amend our criminal law to allow for the investigation and punishment of driving under cannabis influence; but, as an odious bonus, the law also removes the requirement for cops to have cause for suspicion before submitting drivers to alcohol breathalyzers.
I suppose I am dwelling on C-46 because I have a bad conscience. I write about marijuana and the law as often as I write about anything in particular, and even the best of us in the newspaper business are prisoners of grand narrative. This is the Year of Cannabis in Canada. The “mandatory alcohol screening” provision in C-46 has thus received less attention.
And this is not because criminal defence lawyers have not been raising holy hell about it. The Canadian Bar Association criminal justice section’s official advice on the subject of random breath testing was that it is, constitutionally, for the frickin’ birds.
The old Check-Stop procedure, requiring an officer to have reason for suspicion before making a breathalyzer demand, is acknowledged in our caselaw to be a violation of the Charter — but it is a violation deemed to meet the tests for reasonability under s.1. Invasive searches of persons chosen at random would, by contrast, seem to defy the reasonability rules in R. vs. Oakes almost on their face.
Colby Cosh – National Post – July 9, 2018.
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