That's very helpful. I appreciate your thoughts.
In your brief, you talk about random breath testing as being “usually administered by police at a stationary roadside checkpoint”. I understand that's what the premise of your remarks or your opinion is.
Would you not concede that there is a possibility, which others have brought forward, that certain visible minorities could be disproportionately targeted? In your city of Toronto, for example, police street checks, known as carding, have resulted in a disproportionate impact on the black community. They are 8.3% of Toronto's population but account for 25% of the cards police wrote from 2008 to mid-2011.
To your point about not doing a reference now but waiting, if the evidence were that there was a disproportionate impact on racialized groups and minorities, would that not give you pause in defending this under section 1 of the charter? That is, if the evidence were to that effect, and it wasn't simply being used at stationary roadside checkpoints but rather, as the Ladouceur minority said, “on a whim” by police officials, would that not give you pause? Could that affect your judgment as to whether this would pass constitutional scrutiny?