I would first like to emphasize that I agree; I don't think the question of whether or not mandatory alcohol screening or random breath testing is effective settles the question. I mean, it's our opinion that this would ultimately go to a section 1 analysis once the inevitable charter challenge arises if this provision is enforced, and what we know of the effectiveness will go to that inquiry.
But that does not settle the matter. We have a number of concerns that even if it's proven to be effective, it still would fail on the minimal impairments and the proportionality grounds of the section 1 test. For instance, one of the problems we have with the provision, as was mentioned earlier, is that it will very likely sweep up a number of innocent individuals who will be faced with a mandatory breath demand and will not realize that if the demand is instant, they don't have a right to counsel. A number of innocent individuals will very likely assert their rights and be caught up with a mandatory minimum fine of $2,000.
I mentioned in my earlier comments the concern around the increased intrusiveness of a breath demand. One, it's an increasingly intrusive behaviour. It is a bodily sample, and courts have found this to engage section 8. As well, this will have a disproportionate effect on certain individuals and communities.
So I don't think the effectiveness piece settles it, but I do think the lack of evidence is nevertheless problematic.