A note on “random” roadside breath tests…

In June 2009, the House of Commons Justice Committee released a report recommending an amendment to the Criminal Code which would allow police to conduct random breath tests for drunk drivers. The word “random” has a nice ring—it is only your unlucky lot in life, your misfortune, your bad timing, an awful coincidence or a sad irony, for you to get pulled over for a quick check-up on whether you had zero, one, two or multiple highballs before running down to the store for bread and milk.

On the face of it, the majority of Canadians probably think this is a good idea—drunk drivers who kill and injure others, and themselves, are a menace that a mature society should not tolerate.

Currently, the law in Canada allows for a roadside breath test only if a police officer has “reasonable grounds to suspect a person has alcohol or a drug in their body”, and that the person has recently or is currently operating a vehicle. Fail that test, and the officer is empowered to take you “downtown” for a test using a more scientifically reliable breathalyzer machine. The reasonable grounds for the suspicion typically arise from a combination of alcohol on the breath, fumbling for insurance and ownership cards, mumbling bumbling speech, the driver’s admission of having consumed some booze, and some aberrant driving.

Well all that is likely to change.

The key wording in the law as it now stands is “reasonable grounds”. Reasonableness, in law, contemplates a police officer has both a subjective and objective belief that a person has alcohol in his body. Police officers, being suspicious by nature, typically have the subjective belief; the objective belief, though, is not measured against what they think, it is measured against what a reasonable person would think—a hypothetical reasonable person who is apprised of the same information. So the law creates a standard against which the officer’s opinion is to be measured.

The change contemplated would eliminate that standard.

By now, most Canadians are familiar with the notion of RIDE programs that surface every winter holiday season, where every driver is stopped and given the once over by the men and women in blue.  Our courts have determined that these indescriminate programs–although an exception to the rule–are justified in a free and democratic society.   Most people consider getting stopped to be the bad luck of the draw—whatever your route was, you along with everyone else driving down Main Street is subject to the same scrutiny. Most people accept the randomness of this, which, depending on how you look at it, is at least equally unfair to everyone. The Minister of Justice could be in the car ahead of you, and the Chief of Police could be in the car behind you.  Each of the three of us is going to get checked out. Our odds are the same. That’s fair.

What isn’t fair is calling something “random” when it isn’t random at all.  Randomness is bingo, craps, blackjack. The bingo caller, the croupier and the dealer don’t play favourites. My bad luck is your good luck—but at least going in I know you and I have an equal chance. The opposite of randomness is arbitrariness, and that is what this proposal contemplates. Will the drivers of Lincoln Town Cars on Sunday afternoons be pulled over as often as drivers of Mustangs on Friday evenings? Can we be satisfied that the Minister of Justice and the Chief of Police have the same odds as you and I of being subject to a roadside breath demand? If we can’t say that’s the case, then we should stop trying to fool the Canadian public by calling something “random” when it isn’t random at all.

About johndliddle

John Liddle is a Windsor, Ontario criminal defence lawyer. He was called to the bar in 1990 and is a member in good standing of the governing body for Ontario lawyers, the Law Society of Upper Canada. He has been a sole practitioner concentrating on the practice of criminal law since 1992. He has experience in handling all manner of criminal cases in all levels of criminal courts in Ontario.
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