Canada's new impaired driving laws 'taking away constitutional rights,' says defence lawyer

Transcript

Canada's new impaired driving laws will allow police to violate people's constitutional rights, unfairly target people of colour and detain people without due cause, says defence lawyer Scott Newman.

The legislation, which came into effect this week, gives police officers the right to ask for a breath sample from any driver they lawfully stop, lowering the bar from the previous legislation, which required that an officer have reasonable suspicion that a person had been drinking.

Newman spoke to As It Happens host Carol Off about why he believes the new rules go too far. Here is some of what he had to say.

Mothers Against Drunk Driving says it will cut down on the amount of impaired driving in Canada by as much as 20 per cent and possibly save 200 lives every year. So why do you have a problem with it?

It's questionable whether or not any of those suggestions are accurate. There's no doubt that impaired driving is obviously a scourge and there's a lot of different ways to fight it.

But it would seem to certainly defence counsel [and rights groups] that it's not proper to fight this by taking away constitutional rights, by taking away protections against unreasonable search and seizure, by taking away protections against arbitrary detention, removing a right to counsel.

Your rights are your rights. They're meant to protect you from overreach of the state or overreach of the government, and it's contrary to constitutional norms to say, "Well, yeah, you have control over your body and your expectation of privacy — except in this one instance."

Our rights are not absolute, are they? I mean, the law will say there are reasonable limits on those [rights] if it's for a greater good or if there's a possible benefit to that. ... So are you saying this is wrong to do this, or that they just haven't found the right balance?

What you're essentially saying to citizens is, you know, the balance doesn't matter. You've been suspected of no crime. There's not even a scintilla of evidence that you've done anything wrong, but we're going to pull you out of your car, we're going to put you in the back of a cruiser car, we're going to detain you for five, 10 or 15 minutes, check your sobriety.

But is that such a serious violation of our rights if it means it's for the common good or the greater good to have people put in the back of a cruiser for five or 10 minutes? If it catches people who are impaired, if it saves the lives of people, a child that might be hit? 

One of the ways that this can be kind of dressed up is they say, well, it's going to be random. It's going to affect everybody equally.

But we know that policing in Canada is differential, at least in some part. There's race-based differences.

Murray Sinclair of The Truth and Reconciliation Commission, who [was] a judge from the Court of Queen's Bench in Manitoba, said: I would get pulled over all the time, whereas my fellow judges would never, ever get pulled over.

There's also possible ways that this can go wrong for people. I've had clients who are older. They're in their 60s or 70s and maybe they don't have the same level of breath available that they had when they were in their younger days. 

If they're unable to provide a breath sample that's sufficient for testing, you're charged criminally immediately with failure to provide breath sample. Your license is seized. Your car is towed. Even if you're trying, you are treated and arrested and charged and processed as if you've broken the law. 

We know there are so many reports, anecdotal and otherwise, about minorities being profiled, being stopped, being black while driving, or what you just mentioned about Indigenous people. What impact does this law have on them?

It's just ingraining a disadvantage. It's taking a disadvantage for them and making it worse.

You are a defence lawyer ... so what does this mean to you?

You're going to see a wide divergence of opinion amongst the judiciary, amongst the hundreds of judges that hear these trials each year.

Then it slowly works its way up in appropriate cases to the higher courts and at some point in time, a few years down the road, the Supreme Court of Canada will give us an opinion on one at a time.

We'll work our way through all the different Charter defences, but it's going to take a long time to get a definitive countrywide response from all of our courts as to the constitutionality of these new provisions.

Written by Sheena Goodyear with files from Canadian Press. Produced by Chris Harbord.