In May 2010, the Canadian Medical Association passed the following resolution: “The Canadian Medical Association supports the use of random breath tests (i.e., MAS) in existing police spot-check programs, as part of a comprehensive plan to reduce drunk-driving related mortality and morbidity in Canada. Any such programs should be consistent with the protections in the Canadian Charter of Rights and Freedoms.”
In June 2018, Parliament enacted Bill C-46, which among other things authorized police to demand a roadside breath test from any driver who they have lawfully stopped. Mandatory alcohol screening (MAS) changes only one aspect of Canada’s impaired driving law—the basis for demanding a roadside breath test. Police already had authority to stop drivers to inspect their documents and question them about their driving and sobriety. Previously, a roadside breath test could only be demanded from a driver who was reasonably suspected to have alcohol in his or her body.
Research indicates that police detect only a small fraction of drinking drivers when they are required to rely solely on their own unaided senses, as was the case in Canada. Survey, arrest, and conviction data show that, on average, a Canadian could drive impaired once a week for over 3 years without being charged, and for over 6 years without being convicted of an impaired driving offence.
Some critics claim that MAS is unnecessary because the impaired driving laws were working well. In fact, Canada has long had a very poor impaired driving record relative to comparable countries. The US Centers for Disease Control reported that in 2013 Canada had the highest percentage of alcohol involvement in crash deaths (33.6%) among 20 high-income countries. While Canadians drink considerably less than residents of many of these countries, they are much more likely to die in alcohol-related crashes. Not surprisingly, almost all of these countries have MAS programs. Despite recent progress, impairment-related crashes were killing approximately 1000 Canadians a year and injuring another 60 000, a disproportionate number of whom were teenagers or young adults.
Forty-five years of research in numerous countries have established that comprehensive MAS programs dramatically reduce impaired driving and crash deaths. For example, when Switzerland enacted MAS in 2005, the percentage of alcohol-positive drivers fell to 7.6% from about 25%, and alcohol-related crash deaths dropped approximately 25%. New Zealand’s MAS program resulted in a 54.1% decrease in total serious and fatal nighttime crashes and saved society more than $1 billion in 1997. Ireland’s MAS legislation came into force in July 2006. By the end of 2015, total traffic deaths had fallen 54.5%, and serious injuries had decreased 59.8%. Rather than overburdening criminal justice resources, MAS greatly reduced impaired driving charges, which fell to approximately 6525 from 18 650.
Critics of MAS also allege that MAS could be used to target visible minorities. According to leading Australian researchers, exactly the opposite occurred when MAS was implemented. Rather than drivers being stopped and assessed based on an individual officer’s subjective assessment, all drivers approaching a MAS checkpoint are stopped (unless there is a backlog), and all stopped drivers are tested.
While MAS, like many criminal amendments, will face Charter challenges, it must be put in the context of other accepted screening procedures. Millions of Canadians are routinely subject to mandatory screening at Canadian airports, borders, and government facilities. MAS operates the same way and serves the same protective purposes as these other screening programs.
The Canadian courts have never held that these mandatory searches, or those imposed on courtroom entrants, violated the Charter. Indeed, the Ontario Court of Appeal stated that searching all courtroom entrants makes for a safer environment, is not intrusive or stigmatizing, and does not violate the Charter. Given that the courts have upheld the constitutionality of these procedures, there is no principled basis for reaching the opposite conclusion regarding MAS.
As well, the Court’s arguments apply with far greater force in regard to MAS. Driving is a privilege, not a right, and the risks posed by impaired drivers are several hundred times greater than those posed by violent courtroom entrants. Put bluntly, far more Canadians are killed in alcohol-related crashes every year than by terrorists on airplanes, travelers at our borders, or courtroom entrants. Screening drivers is minimally intrusive, entails no stigma, and takes about 2 minutes while drivers remain seated in their vehicles.
Canadian physicians applaud the federal government for introducing MAS. The lives of many Canadian citizens will be saved.
—Roy Purssell, MD
Professor, Department of Emergency Medicine, UBC
Emergency Physician, Vancouver General Hospital
—Robert Solomon, LLB, LLM
Distinguished University Professor, Faculty of Law, Western University
National Director of Legal Policy, MADD Canada
—Erika Chamberlain, PhD
Dean and Professor, Faculty of Law, Western University
Member of the Board of Directors, MADD Canada
Solomon R, Chamberlain E. The road to traffic safety: Mandatory breath screening and Bill C-46. Can Criminal Law Rev 2018;23:1-42.
This article is the opinion of the Emergency and Public Safety Committee, a subcommittee of Doctors of BC’s Council on Health Promotion and is not necessarily the opinion of Doctors of BC. This article has not been peer reviewed by the BCMJ Editorial Board.