Court upholds breathalyzer provision

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This article was published 22/03/2022 (1010 days ago), so information in it may no longer be current.

A recent constitutional challenge to criminal code provisions that allow police to demand roadside breath samples under any circumstances has failed.

The Manitoba provincial court motion filed by lawyer (and current NDP MLA) Mark Wasyliw was believed to be the first of its kind in the province.

Current mandatory alcohol screening provisions, which were passed by Parliament and came into effect December 2018, authorize police to require roadside breath samples regardless of whether they suspect a driver is intoxicated, provided the traffic stop is legal under common or provincial law.

Prior to the provisions coming into effect, police needed a reasonable suspicion the driver had consumed alcohol to demand a sample. The Canadian Civil Liberties Association expressed concern the changes could unfairly affect racial minorities, while lawyers raised issue with the potential for baseless searches.

According to Wasyliw, that’s what happened in his client’s case.

At about 3 a.m. April 25, 2019, a Headingley RCMP constable stopped Brendon Day for speeding under the Highway Traffic Act.

The constable did not note any other concerns with Day’s driving, any signs of impairment or any suspicion he had consumed alcohol, Associate Chief Judge Tracey Lord wrote in a Feb. 3, 2022, decision, in which she dismissed Wasyliw’s motion.

The constable made Day submit to two breathalyzer tests at the RCMP detachment. He blew over the legal limit, and was charged with two impaired driving offences.

Wasyliw argued the mandatory alcohol screenings were in violation of the Charter of Rights and Freedoms, including the right against arbitrary detention. He sought to have the breathalyzer results thrown out, saying the alcohol screening provision did not apply.

Lord ruled the provisions are a reasonable and justified limit on rights of citizens. She wrote although Wasyliw was correct to note no studies have been done to directly compare suspicion-based screening and mandatory screening, the studies that have been done support the idea mandatory screening is more effective than subjective evaluations.

“When balanced with the diminished right of a driver to keep private the amount of alcohol consumed in a dangerous and already highly regulated activity, I am satisfied the anticipated benefits of (mandatory screening) in Canada outweigh any harm it may cause,” Lord wrote.

Wasyliw is a former Winnipeg school board trustee and current NDP MLA who has been practicing law since 2000, with significant experience representing alleged impaired drivers.

He echoed the concerns of civil rights advocates and other lawyers over the erosion of charter rights in an interview with the Free Press, noting he believes his motion was the first to challenge the provisions in Manitoba’s courts.

“I’ve been practicing for 22 years, and over that period of time, charter rights have been getting whittled away more and more by the federal government and people are losing their protections,” Wasyliw said Tuesday.

“What really needs to happen is a public interest law centre that has the resources and money and time to basically take it to the (Supreme Court of Canada), because although we were unsuccessful, there are significant problems in the law.”

Wasyliw argued one of the issues is not everyone is stopped, making the process arbitrary rather than truly random.

In Day’s case, the RCMP constable testified he consistently tested all drivers he stopped after 9:00 p.m. or when there had been a motor vehicle collision.

“There are certain demographics that are out driving at that period of time, there’s certain people that are more likely going to get pulled over at that period of time, and so it’s not a random process and it will systematically affect (Black, Indigenous and people of colour) and the most vulnerable and young people,” Wasyliw said.

“There’s nothing to say the 60-year-old town alcoholic driving around at two in the afternoon will never get stopped, will never have to go through this process. There’s something inherently unfair about it from our point of view, so we felt this law needed to be changed.”

Wasyliw is winding his law practice down, but still takes some cases. He began representing Day prior to taking office as Fort Garry MLA in September 2019.

erik.pindera@freepress.mb.ca

Twitter: @erik_pindera