Senate defeats a bid to restore mandatory roadside screening to impaired driving bill

The Senate has voted down an attempt to restore mandatory roadside testing to the government's impaired driving bill, gutting the Liberal government's legislation and effectively daring MPs to defy senators.

Last year, in combination with the government's pot bill, Justice Minister Jody Wilson-Raybould introduced Bill C-46, a major overhaul of the country's impaired driving laws. It included provisions that would allow for mandatory roadside alcohol screening by police and new criminal offences for driving while high.

In a nail-biter vote of 38 to 38 — with three abstentions — the Senate voted down Tuesday an attempt by Independent Quebec Sen. Marc Gold, with the support of the government's representative in the Senate, to put mandatory testing back in the bill.

The Senate's legal and constitutional affairs committee had already removed the most controversial provisions in the bill after hearing warnings from legal experts that the courts could find mandatory testing to be unconstitutional.

In the Senate, on a tied vote, the status quo prevails. So Gold's attempt to recreate the original bill introduced by the Liberal government has failed — at least for now.

The bill is still at the third reading stage in the Senate and could be amended further. Once passed by the Senate, the legislation will be punted back to the House of Commons — where MPs will have to decide whether to accept the Red Chamber's changes to the legislation.

As originally written, the bill would give police the power to demand a breathalyzer sample from any driver they lawfully stop.

Previously, a test could only be administered if an officer had "reasonable suspicion" that a driver was impaired by alcohol.

The government made the change because it says its own research shows many impaired drivers are able to escape detection at checkstops.

The bill is also aimed at reducing the number of legal actions launched over whether an officer actually had the "reasonable suspicion" required to ask for a breath sample.

Queen's University Law Professor Don Stuart — who wrote a textbook on criminal law in Canada — told senators that he believes the mandatory testing violates the Charter of Rights protection in section 8 against unreasonable search or seizure, and cannot be demonstrably justified under section 1 — the section that allows the government to impose "reasonable" limits on the expression of charter rights.

"The Supreme Court has long held that a roadside breath demand engages such privacy protection," Stuart wrote in his brief to the committee.

"Impaired driving is a huge problem, raising important needs for strong laws to protect the public. But if we go too far, there is a danger of untrammelled police power. This development may also set a precedent for established Charter standards to be overlooked in other contexts where there are strong law and order lobby groups."

Other experts — including Peter Hogg, a widely respected constitutional law scholar — disagreed with Stuart's take on the legislation.

"The invasion of the driver's privacy [with random breath testing] is minor and transitory and not much different from existing obligations to provide evidence of licensing, ownership and insurance (which have been upheld by the Supreme Court)," he said in his own submission to senators.

New laws are also aimed at eliminating, or restricting, common defences used by drivers facing impaired-driving charges in court.

Those include claims by drivers they consumed alcohol just before or during driving, and thus were not over the legal limit at the time they were driving because the alcohol had not yet been fully absorbed.