ALEX MACPHERSON
Opinions Writer

If the Canadian constitution were as concrete as its American counterpart, proposed legislation concerning the application of random roadside breathalyzer tests would be killed long before it reached the House of Commons.

As it stands, however, the eighth section of the Charter of Rights and Freedoms, which assures Canadians protection from unreasonable search and seizure, is not nearly as monolithic as the Fourth Amendment. That a bill advocating unwarranted searches could conceivably become law is indicative of the weakness of our charter rights.

“To subject every passing driver to an invasive breath test is, unequivocally, an unwarranted search.”

Currently, any search carried out by the police must be accompanied by reasonable suspicion of a crime. In the case of drunk driving, this usually amounts to the smell of alcohol, slurred speech and general incoherence. In Canada, roadside checkstops are common: they allow the police to keep drunks off the road without compelling anyone to search without grounds.

Checkstops, which have been struck down as unconstitutional in the United States on several occasions, have become an acceptable nuisance. However, the indifference of drivers toward roadside sobriety checks could be changed with the addition of a mandatory breathalyzer test.

Although it is impossible to disagree in principle with the institution of preventative measures intended to increase the safety of every citizen, the protection of fundamental rights must also be considered. To subject every passing driver to an invasive breath test is, unequivocally, an unwarranted search; that is, the legal result of roadside breathalyzer tests is the extirpation of reasonable suspicion and probable cause. And without legally justifiable grounds on which to conduct a search, a breathalyzer test constitutes an egregious violation of our charter rights.

More importantly, the notion of roadside breathalyzer tests sets a dangerous precedent for pre-emptive policing. The application of breath tests to any or all passing motorists, regardless of whether they appear to be drunk, is untenable because it presumes drunkenness.

More specifically, breath tests at check stops undermine the fundamental principle of presumed innocence. To suggest that anyone, regardless of what they have allegedly done, is guilty and therefore subject to search is a pre-emptive, as opposed to a preventative, measure.

The suggestion that mitigating the pernicious and life-shattering effects of drunk driving can be achieved through the use of random breath tests demonstrates conflicted interest. No reasonable person can deny the dangers of drunk driving and yet no reasonable person can legitimately ask someone else to surrender their fundamental — and legally enshrined — rights.

If police officers can search someone based on an unwarranted assumption that they are drunk, is it legitimate then for them to search random houses for potential crimes? If we as free citizens are coerced into giving up our rights, we may as well live in a police state, for law enforcement based on assumed guilt is a rape of every principle that governs our society.

Despite the lack of substantive evidence supporting the claim that roadside breathalyzer tests reduce instances of drunk driving or remove drunk drivers from the street with more consistency than a traditional checkstop, many people continue to forward this insidious notion. They intend to compel every motorist in the country to surrender their charter rights in order to drive to work.

Citizens of this country who advocate the abuse of our charter rights and the use of pre-emptive law enforcement are delusional. No law, regardless of its potential benefits, can ever be justified if it coercively expropriates our fundamental rights.

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graphic Danni Siemens