By Jordan W. Charness
“Innocent until proven guilty,” “reasonable cause,” “probable cause:” these are some of the bases of our criminal justice system in Canada. In a free and just society guaranteed by the Canadian charter of rights, every Canadian has the following rights:
7. Life, liberty and security of person
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.
8. Search or seizure
Everyone has the right to be secure against unreasonable search or seizure.
9. Detention or imprisonment
Everyone has the right not to be arbitrarily detained or imprisoned.
(Canadian Charter of Rights)
Canadians are justifiably proud of their Charter of Rights. Unlike some jurisdictions where you are deemed guilty unless you can prove yourself innocent, in Canada you are presumed to be innocent until you’ve had a fair trial and found guilty.
In fact, for the police to even pull you over they have to have a reasonable and probable cause to believe that you had committed a criminal offence. Our charter right to be secure against unreasonable search and seizure as well as our other charter right guaranteeing that we will not be unreasonably detained by the police helps to make sure that we do not live in fear of our police forces.
As police forces go, ours are as upright and upstanding as possible. Considering the power that goes with a badge and the gun, our Canadian police forces rarely abuse their privileges.
All of these thoughts popped into my head when I read that the Harper government is floating a trial balloon about passing a law allowing the police to pull people over at random and force them to take a breathalyzer test to see if there’s any alcohol in their body. This would be quite a change in the current state of the law which is that the police may only pull you over if they have reasonable grounds to believe that you are committing the offence of driving while intoxicated. If they have no reason to be suspicious they are not allowed to pull you over.
The proposed legislation would allow the police to pull you over anytime they felt like it to randomly perform spot checks and breathalyzer tests. This might well be against the charter rights of being unreasonably detained and held free from unreasonable search and seizure.
On the other hand, an argument could be made that if you are randomly pulled over and had nothing alcoholic to drink you’ll be sent merrily on your way after only a few minutes of inconvenience. Even if a few minutes of inconvenience may seem to be against our charter rights, it is a small price to pay to keep society safe from drunk drivers.
The Supreme Court has already ruled that roadblocks set up around the holidays to check everyone going through a certain street for signs of intoxication is valid and legal. But these roadside interventions really work by allowing the police talk to you for a few minutes to decide if they see signs that would lead them to have reasonable and probable cause to ask you to take a breath test. The proposed law however would allow the police to force you to take the test without displaying any suspicious signs.
Some worry that this will give the police too much power. In any other country I would worry too. But most of our police are not power-hungry. They can usually be counted on to use their powers for good and in a legal way. And if they don’t they also know that defence lawyers and boards of inquiry will be all over them in our system of checks and balances that helps to keep everybody safe.