“Playing breathalyser roulette”: Taking a breath sample without reasonable suspicion and Charter implications

Abstract

Various organizations and governments throughout Canada have attempted to reduce impaired driving through public awareness campaigns as well as governmental policy. In September 2018 the Government of Canada amended the Criminal Code of Canada [Code] using Bill C-46, increasing the powers of peace officers. Code Section 320.27(2) now allows peace officers to request a breath sample from any lawfully stopped driver without needing reasonable suspicion of impairment. The legislation is aimed at preventing drivers from playing “breathalyser roulette” (Solomon & Chamberlain, 2018, p. 5) and the perception that they can conceal their drinking successfully and thus will be unlikely to be required by a peace officer to take a breathalyser test to assess sobriety. Aspects of the legislation however, may be incompatible with the Canadian Charter of Rights and Freedoms [Charter]. This paper analyses whether or not Code Section 320.27(2) is compatible with Section 8 of the Charter that protects Canadians against unreasonable search and seizure. As a future legal challenge is highly possible, this analysis was conducted to evaluate if the legislation is likely to be upheld by the Supreme Court of Canada (SCC). It was determined after legal analysis that although Code Section 320.27(2) is likely not compatible with the Charter as it fails to pass the reasonableness standard as found in R v Bernshaw (1995), it will probably be upheld as a reasonable limit under Section 1 of the Charter after Oakes Test analysis, a legal test to evaluate whether legislation is a reasonable limit or unconstitutional. The legislation is as minimally impairing on Charter rights as possible and helps to achieve a pressing and substantial legislative objective. Oakes Test analysis however, would be impacted if the Government fails show compelling evidence in justifying why the infringements on Charter rights is necessary for public safety. This legislation, upheld as a reasonable limit, will allow peace officers to request breathalyser samples in more cases, which will hopefully further deter impaired driving.