Thank you very much for the opportunity to appear before you today. I'm Rob De Luca. I am a lawyer and a program director with the Canadian Civil Liberties Association.
I would like to begin by emphasizing that we support the goal of this bill. The government clearly has a strong role to play in combatting the persistent social problem of impaired driving. However, we submit that this bill, in its current form, is not the answer. In our written brief, which unfortunately wasn't here in time for the official translation, we specifically address four areas of concern: mandatory alcohol screening, the increase in mandatory minimum fines, the increase in maximum allowable penalties, and the new statutory presumptions in the drug-impaired context.
This afternoon I will focus my submissions on the provision authorizing mandatory alcohol screening, otherwise known as random breath testing. As we detail in our written materials, we have significant concerns about the likely impact and the constitutionality of this expansion of police stop-and-search powers. Currently, police officers in Canada are authorized to stop a vehicle to check vehicle fitness, licence, registration, and sobriety. A sobriety check must be limited to observing an individual's behaviour, speech, and breath. What is impermissible, and we believe unconstitutional, is a random roving stop for the purpose of a roadside breath demand.
The Supreme Court of Canada has held that a breath demand engages individual charter rights. Among other things, a breath demand constitutes a search and seizure that engages an individual's reasonable expectation of privacy. For this reason, police may currently demand a roadside breath sample only if they have reasonable grounds to suspect that a driver has alcohol in his or her body. This framework is frequently referred to as selective breath testing.
Random breath testing would mark a fundamental change in our law. Current expectations dictate that an individual is susceptible to a search and seizure only when officers reasonably suspect that the person has done something wrong. The random breath testing framework, by contrast, requires that one must now prove that they have done nothing wrong. This transforms the police-citizen interaction; the presumption of innocence is replaced with a presumption of guilt.
We recognize that there are written opinions suggesting that the implementation of random breath testing would be constitutional. I would like to raise two major reasons why we believe random breath testing is not a justifiable limit of charter rights. First, I will discuss the lack of evidence justifying this increased intrusion on charter rights. Second, I will discuss the impact that an additional arbitrary search power will have on individuals, and in particular those who come from minority communities.
It is true that the introduction of random breath testing has been revolutionary in many countries. Random breath testing does work to deter impaired driving, but the correct question is not whether random breath testing works. In Canada, what we need to ask is whether random breath testing will be more effective in deterring impaired drivers than is our current regime of selective breath testing, a practice that we have had in place for decades, which does less to limit the charter rights of individuals. This is a question that is extremely difficult to answer. Indeed, we think that a review of the research on this topic suggests that it is a question that it is not possible to answer on the basis of the current research and the existing international comparators, particularly New Zealand, Australia, and Ireland.
There are two main difficulties with any attempt to conclude that the success of random breath testing in other jurisdictions would carry over to the Canadian context. First, the vast majority of jurisdictions that have implemented random breath testing did not have any roadside testing program before they introduced the program. The successes of these programs do not speak to the comparison between random breath testing and selective breath testing. If random breath testing is adopted in Canada, it will be implemented in a country that has had decades of RIDE programs, in which drivers have become habituated to being stopped on the side of the road for the purposes of a sobriety check.
In Canada, selective breath testing, combined with other initiatives, has led to our own revolution in impaired driving. We've seen the percentage of driver fatalities involving alcohol drop from 62% to roughly half that mark today.
While there are some jurisdictions that implemented random breath testing after first implementing selective breath testing and experienced an additional decline with the introduction of random breath testing—again, the comparatives here are New Zealand, Ireland, and certain jurisdictions in Australia—the success of random breath testing in these countries cannot be divorced from the host of other measures to combat impaired driving that were introduced at the same time, such as drastically increased enforcement and publicity efforts. As such, it is simply not possible, on the basis of the existing research, to tease apart the impact of implementing random breath testing and all of the other considerable efforts that went on at the same time. For this reason, we view the projected impact of random breath testing implementation in Canada as more speculative than certain.
This brings me to our second broad area of concern. A speculative effect is simply not sufficient to justify authorizing police powers that we know will limit charter rights. We are especially concerned about the impact that an additional arbitrary police search power will have on individuals who come from minority communities. The current proposal would not limit the new search power to stationary checkpoints, where discretion is curtailed and therefore the risk of racial profiling or other improper exercises of police powers is reduced. Those who are already disproportionately stopped while driving will now not only be pulled over and questioned, but required to provide a breath sample as well. For those individuals who tend to be singled out disproportionately, a breath demand during a so-called routine stop will frequently be experienced as humiliating and degrading. It is a mistake to think that a breath demand will, in fact, always be a quick and routine affair. Many individuals will be required to exit the vehicle and stand on the side of the roadway, or sit in the police cruiser, while they provide a breath sample.
This factual background informs our constitutional analysis that random breath testing is unconstitutional as currently presented. As indicated earlier, we have spoken to additional concerns with Bill C-46 in our brief. I would urge the committee to examine our written submissions along with the detailed recommendations in our brief that are aimed at addressing our most serious concerns.
Thank you.