Criminal Law

Power to demand breath samples strips civil liberties: Neuberger

By Staff

Giving police the power to demand a mandatory breath sample from any driver they lawfully stop is an “unnecessary” erosion of civil liberties that will clog the courts with challenges for years, Toronto criminal lawyer Joseph Neuberger tells Global News Radio.

“I see it as, with all due respect to the justice minister, it's political pandering to the public for votes. ‘See we’re getting tougher on impaired driving. We're going to make it mandatory,’” Neuberger, partner with Neuberger & Partners LLP, tells the radio station.

“The flip side of that is two to three years of constitutional challenges working their way through the system, clogging the courts when it was completely unnecessary.”

Justice Minister Jody Wilson-Raybould tells The Canadian Press (CP) the goal of mandatory testing, to begin Dec. 18, is to reduce the carnage on the roads by helping police catch drivers with more than the legal limit of alcohol in their bloodstreams.

However, Neuberger says the standard for demanding a roadside breath sample was already low enough.

“I just think we are moving too far down the road with eroding civil liberties because in order for an officer to have reasonable suspicion it was such a low threshold, but at least it provided some evidentiary basis. Now that’s gone,” he tells Global.

“Well-trained officers are able to detect indicia of impairment, and they can have a reasonable suspicion quite easily. It was like trying to straddle a baseboard. It was just not very hard.”

Wilson-Raybould tells CP she has “every expectation”' the new law will be challenged in the courts, but added she is confident it is consistent with the Charter.

Neuberger predicts those challenges will unnecessarily cause slowdowns in the already overburdened justice system.

“They could have just left it alone,” he says. "You were seeing very few cases thrown out because an officer didn’t have reasonable suspicion.”

CP also reports that the Canadian Civil Liberties Association has voiced concern that mandatory screening will unfairly affect racial minorities who are disproportionately singled out by police for traffic stops.

Organized Crime Reduction Minister Bill Blair tells the national news agency that if a police stop were motivated by bias, it would be unlawful and contrary to the Charter — and therefore a breath test would be inadmissible in court.

Blair tells CP he believes the likelihood of someone getting caught for having more than the allowable limit of alcohol in their system is “about to increase exponentially'' under the new law.

The first part of Bill C-46, dealing with drug-impaired driving, took effect earlier this year in anticipation of legal recreational cannabis use. It authorized police to use roadside oral fluid drug screeners and created new driving offences for having a prohibited concentration of drugs in the bloodstream.

“[This] causes me great suspicion as to why the government decided to do this because we don’t have sophisticated testing in regards to drug impairment. In fact, we’re far behind in that,” Neuberger tells Global.

“So maybe the bait-and-switch, if you don’t mind being a bit cynical here, is to show that we’ve done something tougher on impaired driving. And I'm not discounting the fact that drunk driving has caused very serious harm across this province and we see rates of charges going up," he says.

"That being said, mandatory testing was unnecessary. The threshold for the minimum standard for having reasonable suspicion was fairly low, and it did protect the public.

“I thought a minimum standard was a no-brainer. You should absolutely have that in place, but now it’s gone as of Dec. 18,” Neuberger says.

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