I'm just going to think about this, because you used the breathalyzer example—and I appreciate your bringing that example. The law did change in British Columbia a number of years ago, which basically meant that we didn't really prosecute a lot of impaired driving charges. However, I do recall there were reasonable grounds to suspect that a person had alcohol in their body.
Now, as I recall—and I can't remember whether it was an arbitrary detention issue or not—it did have to go through a section 1 analysis. I can't recall whether it was section 8, the search, in terms of providing a breath sample, or section 9, the roadside detention.
I always really appreciate, Ms. Gibner, how you engage with the law in discussing this. I think you articulated that quite well. I don't think anybody at the table there would say something along the lines of, “Look, we really want to put law forward that's unconstitutional.” Now, we still have to scrutinize that. Of course you're not going to put forward unconstitutional law. I don't think you would have your jobs.
With that being said, I think Bill C-2 had blatantly unconstitutional provisions in it. I'm not going to bust out parts 15 and 16 in it. With the greatest of respect to officials, I think that the legislative drafters were told what to put in, and that there was probably language in Bill C-2 that caused nine out of 10 constitutional lawyers to say, “Yeah, this probably offends the charter.”
The mere fact that something has been drafted, I don't think, is persuasive enough. I take it on its face: “Look, we're not going to put something in that we know is unconstitutional.” What we worry about is the grey area.
I guess what I'm asking you.... Tell me if this is an unfair question. I asked professors Diab and Geist about this, as I recall. They articulated their rationale as to why this offended section 8. I don't recall exactly how they connected the dots, but I guess what I'm looking for is this: Quite simply, do you disagree? Where do you depart from their analysis? Do you recall their analysis? This was a couple of months ago now, so help me out there, please. If you can't recall, I'm not going to be offended or anything....