Sometimes rights and freedoms must trump “justice”

The new legal toolkit being made available to police in their ongoing battle against impaired driving has a lot going for it and it deftly blocks a number of legal loopholes that too many were taking advantage of to avoid paying for their crimes. Unfortunately, part of the new law aimed at the most egregious of those tactics has gone too far and most likely will not pass the smell test when placed before the courts.

Increased penalties are a welcome part of that new toolkit, certainly, but when it comes to the addition of the ability of police officers to approach someone in a restaurant, bar or even their own or a friend’s home two hours after someone has parked their car and demand they submit to a breathalyser test or face the penalties laid out for refusal—the law has gone too far.

For those unaware of the issue that part of the law is trying to address, it had become all too common for a driver involved in an accident or having evaded the police while on the road and made it into a sanctuary to sit down and quickly consume a number of alcoholic beverages.

By the time law enforcement had arrived, the offender was impaired but it was impossible to prove beyond a reasonable doubt whether they had been over the limit at the time they had been driving. It was a real and growing problem.

But in seeking to combat the tactic, the government has resorted to a legal remedy that is so onerous, so open to abuse and manipulation and so clearly tramples on the freedoms of the ordinary citizen that it cannot fail to be tossed out by the courts, but not before countless innocent people are forced to submit to unwarranted and tyrannical abridgements of their rights and freedoms, not to mention the immense cost and expense of defending themselves from charges, not to mention the incredibly challenging loss of the privilege of driving, which for many in the North, especially, is tantamount to losing their livelihood.

Further, it is a foundational aspect of our legal system that the police must have reasonable cause before stopping a citizen. Not so any longer. The new law allows a police officer to demand a citizen submit to a sobriety test without any reasonable suggestion or indication that citizen is impaired.

Witness the recent media accounts of a senior who was returning the empties from the holiday season to his local Beer Store. A police officer parked at a nearby roadside observed the man taking his empties into the store decided that such a number of empties was “suspicious” and demanded the citizen take the test. The senior passed the test, but was understandably dismayed by the incident.

The potential for abuse of the two-hour limit cannot escape the attention of any individual who has witnessed the drama and escalation of accusations that accompany domestic breakups. An angry spouse need only call the local police station and make an accusation that someone has been driving erratically to trigger a potential injustice.

Now let us dwell on the longstanding issue of carding, wherein someone is stopped and questioned simply on the basis of their skin colour or other ethnicity. With yet another available tool to hand is it fair to expect that police officers will not be tempted to utilize it in place of this largely outlawed practice? The result will doubtless be far more young black, Indigenous and otherwise identifiable minorities being subjected to unwarranted and unnecessary checks.

This paper has taken a strong stand against impaired driving, most recently rescinding our policy of not naming most offenders until they are found guilty and committing ourselves to naming and shaming those charged with impaired driving. 

But these new laws go too far in abridging the rights and freedoms of the individual and must be rethought. The courts will overturn these new abridgements of our rights and freedoms in this province, but likely not before a great deal of damage is done to the blameless. The province should take the advice of innumerable legal professionals who have sounded the alarm over these new laws and come up with a different and less draconian tactic that does not infringe on the rights and freedoms of the innocent.

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