"Playing Breathalyzer Roulette"

Taking a Breath Sample Without Reasonable Suspicion in Canada and Implications for the Charter of Rights and Freedoms


  • Jacob Caine Simon Fraser University


Various organizations and governments throughout Canada have attempted to reduce the phenomenon of impaired driving through public awareness campaigns as well as governmental policy. In September 2018, the Government of Canada, amended the Criminal Code of Canada (hereinafter, CCC) using Bill C-46 which, increased powers of peace officers. CCC 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 new legislation however, may not be compatible with the Canadian Charter of Rights and Freedoms (hereinafter: CR+F). This paper analyzes whether or not CCC section 320.27(2) is compatible with Section 8 of the CR+F that protects Canadians against unreasonable search and seizure. This legal analysis was conducted to evaluate if the legislation could be upheld by the Supreme Court of Canada (SCC) as a future legal challenge is highly likely.

It was found through legal analysis that CCC section 320.27(2) is unlikely to be determined compatible with the CR+F as it fails to pass the reasonableness standard as found in R v Bernshaw (1995). Oakes Test analysis was therefore conducted to evaluate whether or not the legislation could be upheld using the section 1 “reasonable limits clause” of the CR+F.

It was determined that CCC section 320.27(2) will likely be upheld as a reasonable limit on Charter rights as per the Oakes Test, as 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 cannot show compelling evidence to prove their case.