NP View: Racism lurks in the supposedly 'woke' Liberals' new impaired driving laws

Beyond the basic offence to everyone's rights constituted by such random searches, these powers will obviously be applied unevenly

One of the new powers given to police in Canada's revamped impaired driving laws is the right, under certain circumstances, to demand a breath sample from someone who has not given any sign that they might be impaired.Veronica Henri/Postmedia

Has the self-styled “party of the Charter,” as Prime Minister Justin Trudeau still, curiously, calls the Liberals, actually even read the Charter? Have the Liberals, for that matter, paid much attention to what their own prime minister has been saying?

Canada’s impaired driving laws underwent a major overhaul last month, courtesy of the federal Liberal government. Some of the changes were necessary to recognize the changed reality of legalized cannabis. Others were simply intended to further reduce rates of impaired driving, by drug or alcohol, on our roads. This is a goal everyone shares — impaired driving is the leading criminal cause of death in Canada, way ahead of anything else. It’s a stubborn problem that governments are right to try to address, particularly a government that has recently legalized a whole new category of intoxicant.

The new laws have given to police significant new powers

But the new laws have given to police significant new powers. In a free society, that’s never something to be done lightly. And in this particular case, what is being done is especially bizarre because the Liberals are now insisting that such powers will not be abused even while insisting, in a slightly different context, that they inevitably will be.

One of the new powers given to police is the right, under certain circumstances, to demand a breath sample from someone who has not provided any sign that they might be impaired. Previously, a police officer needed at least some grounds to insist on such a test — the officer could have observed erratic driving before pulling the car over, for instance, or suspected a whiff of alcohol on a driver’s breath. Under the new law, a driver stopped by police for any lawful reason whatsoever (which is a very low bar) may be subjected to a breath test. Refusing to provide one is itself a criminal offence. Canadians effectively have no choice but to comply.

Toronto police officers stop motorists during a RIDE program spot-check in a file photo from Dec. 13, 2012. Darren Calabrese/National Post

This is a meaningful expansion of police search powers, and it will absolutely be challenged — hopefully successfully — as a violation of Canadians’ fundamental protections against unreasonable searches. This is also an expansion of police authority that the Liberals were explicitly warned would result in abuses of power, most likely taking the form of racial discrimination. “There will be nothing random with this breath testing,” defence lawyer Michael Spratt told a parliamentary committee reviewing the bill before it became law. “Visible minorities are pulled over by the police more often for no reason. That’s what is going to happen here.” The Canadian Civil Liberties Association sounded a similar warning in its own filing, writing, “Experience has also unfortunately demonstrated that ‘random’ detention and search powers are too often exercised in a non-random manner that disproportionately targets African-Canadian, Indigenous, and other racial minorities.” It continued, “… the reality of racial profiling and the increased invasiveness that attends a mandatory alcohol screening means that the practice will adversely impact those disproportionately targeted by police for vehicular stops, in particular African-Canadian, Indigenous, and other racial minorities.”

There will be nothing random with this breath testing

Lawyer Michael Spratt

The ratcheting-up of systemic racism might normally be an issue you would expect the gloriously woke federal Liberals to be falling all over themselves to fix, or at least to tweet piously about. That’s not the case here. The Liberals have readily acknowledged that they expect that this new law will be challenged in court, but say they will defend it, and are confident it will survive the challenges.

There’s reason enough to be alarmed at the expanded use of police powers, even if they weren’t bound to be targeted disproportionately at racial minorities. Random, groundless searches conducted by whim of the authorities are manifestly a gross violation of Canadians’ fundamental rights. Now that the law is finally being used, there are already unsettling stories of such mandatory searches starting to emerge: Global News reported this week that a Toronto-area man, who was not in the slightest bit impaired, was given a breath test after a police officer observed him returning empty beer bottles to a store for recycling, as if he’d knocked them all back on the way over in his car.

Art Lightowler of Streetsville, Ont., was pulled over by a police officer after dropping off what he says the officer deemed “an excessive amount of bottles” at a Beer Store for recycling. Veronica Henri/Postmedia News

But the thing that makes this so especially strange is how the Liberals, not long ago, were embracing the very same arguments they now say concern them not at all. During the run-up to the legalization of cannabis, no less an authority on right-thinking Liberal values than Justin Trudeau himself explained that it was important that Canada legalize cannabis because of — wait for it — racial factors, that saw police applying marijuana laws with disproportion and discrimination against minorities. The prime minister even shared an anecdote about how his own late brother, Michel, after being arrested for possession of cannabis, was able to have that charge quietly taken care of. It helps to be a powerful white guy, the prime minister confessed, especially one as well-connected as the son of a prime minister. “That’s one of the fundamental unfairnesses of this current system is that it affects different communities in a different way,” he said in 2017, acknowledging that random screenings are rarely truly random, and that discretion is rarely equally applied.

Random screenings are rarely truly random, and that discretion is rarely equally applied

The prime minister was right. So was Mr. Spratt and the CCLA. Beyond the basic offence to everyone’s rights constituted by such random and baseless searches, these expanded police powers will obviously be applied unevenly, and that is fundamentally unfair. Why was that so true for cannabis that the prime minister used it to justify why legalization was necessary, but the Liberals deem it to be of no concern whatsoever for impaired driving?

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