Last fall, amidst much publicity, the federal government legalized possession of marijuana. But less attention has been given to follow-up legislation that dramatically expanded police powers, and not just with respect to cannabis.
The new act started from the reasonable position that if marijuana is now legal, the police should be authorized to arrest motorists under its influence. Three new offences were created, and limits were set for the amount of the drug that can legally be present in a driver’s blood.
There remains some controversy over where that limit should be set. The medical community is divided on this matter. But some way had to be found of dealing with this form of impairment.
But the changes didn’t stop there. The statute went on to deal with suspected alcohol impairment. And, controversially, it gave law enforcement officers new powers to perform mandatory alcohol tests on drivers without the requirement of reasonable suspicion.
There is some history here. Police checkpoints over holiday periods have been with us for some time. They are considered lawful by the courts because there is reliable evidence of increased alcohol consumption on these occasions.
Beyond that, however, the authority to pull over drivers was limited to specific circumstances. If police officers wished to stop a motorist on suspicion of impairment, they required a basis for that suspicion, such as erratic driving.
That condition has been done away with. It is now legal for police to carry out random stops anywhere, any time, with no grounds to suggest the driver is impaired.
The change was supported by groups such as Mothers Against Drunk Driving, on the grounds that anything that reduces alcohol-related road accidents is worthwhile. And that is a desirable outcome, even if some inconvenience is caused to law-abiding motorists.
But there are also reasons for concern. Critics, including the national Criminal Lawyers’ Association, have warned the legislation is probably unconstitutional. They fear random roadside stops might invite profiling, in which members of visible minorities are disproportionately selected.
The BC Civil Liberties Association also weighed in against these changes, noting there is slim evidence at best that random stops reduce alcohol-related fatalities. Numerous studies in several countries were cited to support this conclusion.
There are also questions about the need for new police powers. The number of road deaths in Canada has been falling steadily for three decades. In 1979, the number of vehicle-related fatalities stood at 4,327, countrywide. By 2016, the total had fallen to 1,717, despite a 50% increase in population.
There was a better way of proceeding. The feds could have asked the Supreme Court of Canada to rule in advance whether these changes are constitutional. That would have avoided legal challenges working their way through the lower courts. Instead, the matter has been dumped untested on the provinces, virtually guaranteeing years of litigation.
If we were in the midst of a long-term trend toward growing impairment on the roads, no sensible person would deny law enforcement officers additional powers. But lacking such evidence, the justification for such intrusive measures becomes less persuasive.
