Federal Justice Minister Rob Nicholson spoke recently at MADD's annual convention and publicly supported a measure that MADD has been advocating for some time - random police breathalizer tests.
The House of Commons justice committee recommended in June that Canada follow in the footsteps of several other countries that have adopted random breath testing. Mr. Nicholson must publicly respond to the all-party report by Oct. 19.
The debate centres around whether random testing, while it has proven internationally to be the most effective deterrent that exists to curtail drunk driving, would be a justifiable violation of the Charter of Rights and Freedoms guarantee against unreasonable search and seizure.
MADD says that action is needed because progress in nabbing drunk drivers has stalled in the past decade, largely because the remaining culprits are a hardcore group that was never persuaded to drive sober.
Also, research shows that even when impaired drivers are stopped at sobriety checkpoints, most go undetected so they are never tested, MADD says.
Police are even more likely to miss experienced drinkers, because they exhibit fewer signs of intoxication.
The justice committee, in its recent report, concluded the "current methods of enforcing the law lead police officers to apprehend only a small percentage of impaired drivers, even at roadside traffic stops."
Western democratic societies walk a fine line between personal liberty and public safety, never more so than since the 9-11 attacks. Relinquishing some personal freedom has always been necessary to ensure security, and a healthy political debate goes on continually about how much liberty must be surrendered and how much threat to security must be tolerated.The powers of the police as agents of the state are front and centre in that debate.
The underlying assumption, though, must be that police do not act arbitrarily and infringe on the liberties of citizens for no apparent reason. Centuries of jurisprudence have enshrined the principle that citizens are innocent until proven guilty, and police require just cause before depriving a citizen of his liberty. This fundamental concept is at risk if we allow police to arbitrarily stop us to look for potential violations.
RIDE checks are one thing, but random breath tests are another. At a RIDE check, police must suspect that a driver is impaired before administering a breath check. Nicholson's proposed changes will give police the power to randomly select drivers for breath tests. It may seem like nitpicking, but there is a big distinction. In the first instance, police have evidence of a crime being committed before taking action; in the second, the decision to take action is totally at the discretion of the police.
Where does this kind of thinking end? One could make the same "if it saves one life, it's worth it" argument for random searches of private homes looking for marijuana grow-ops, or arbitrary pat-downs of pedestrians on sidewalks looking for concealed weapons. The extreme result is a society where citizens are constantly monitored and police stop law-abiding citizens at checkpoints asking for "your papers, please". I don't trust the police to have my best interests at heart in these encounters.
Although I'm not advocating that I have an absolute right to drive drunk (since that action violates the right of other citizens to travel safely on the roads), society's fight against drunk driving must lean towards the persuasive, not the coercive. Certainly, throw the book at a person caught driving while impaired, and give police full powers to stop drivers who they suspect have been drinking. Nevertheless, we must operate on the assumption that most citizens are law-abiding unless proven otherwise - random breath tests assume the exact opposite.
MADD concludes their policy paper on this issue with this statement:
While random breath testing will be challenged under the Charter, this should not deter Parliament from introducing a measure that has dramatically reduced alcohol-related crash deaths around the world and can do the same in Canada.
There is a reason we have our fundamental rights and freedoms written in the Charter. Section 7 states:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Section 8 says:
Everyone has the right to be secure against unreasonable search or seizure.
Section 9 says:
Everyone has the right not to be arbitrarily detained or imprisoned.
We have our rights and freedoms enshrined in the Constitution precisely to prevent agents of the state from deciding which rights are deemed worthy of having. We give up those rights at our peril, even for a seemingly righteous cause like the fight against impaired driving.
UPDATE: The National Post agrees - No to random breathalyzer tests:
Government is the servant of the people, not the other way around. That means that no matter how noble are the public policy ends advocated by politicians -- such as reducing drunk-driving fatalities -- it is dangerous for citizens to surrender one of their few protections against arbitrary police action.
Lock up drunk drivers longer. Give the provinces more money to enforce existing laws. But don't, Mr. Nicholson, presume all drivers are guilty until they can prove themselves innocent just because that is easier than honouring our traditional liberties.