OTTAWA — A 76-year-old woman in B.C. has launched a Charter challenge against a new law that allows Canadian police to demand a roadside breath test without needing any suspicion the driver has been drinking.Norma McLeod was driving out of a Victoria, B.C., liquor store parking lot just after 9:30 a.m. on Feb. 14 when a police officer pulled her over and demanded she provide a breath test. According to the officer’s own report, he was staking out the liquor store and conducting breath tests on anyone who exited.The details of the incident appear to confirm the fears of critics of mandatory alcohol screening: that police would use the new powers to arbitrarily target drivers and simply ignore the law’s requirement to have a legitimate reason to pull someone over.McLeod says she was unable to properly blow into the roadside screening device because she has an implant in the roof of her mouth as a result of cancer, and also has a chronic lung condition. The officer felt she was purposefully sabotaging the test and deemed it a refused breath sample.Under B.C.’s impaired driving regime, McLeod’s licence was immediately suspended for 90 days and her car was impounded for 30 days. She is also subject to a $250 driver’s licence reinstatement fee, the cost of towing and storage fees for her car (likely around $800), and the $930 registration fee for a responsible driving class, her lawyers say. During debate over Bill C-46 last year, which contained the mandatory alcohol screening provision, Liberal cabinet ministers gave repeated assurances that civil liberties were protected because police must have a valid reason for pulling a driver over. Yet in the report from Cst. Michael Christians, included in court documents, he identifies no reason for pulling over McLeod other than that she exited a liquor store.Christians was working for the Integrated Road Safety Unit of the Victoria region, a mix of RCMP and municipal officers. It does not identify which police force Christians belongs to.“At 930hrs Cst. Christians was conducting mandatory breath tests of customers exiting a liquor store in the area (of) Hillside Shopping Centre,” the report says under the heading “Circumstances Of Incident.”It says Christians saw a woman enter the store and leave within minutes “with a large bag of liquor” and get into her car.“The driver then pulled out of the parking stall and wound up exiting the parking lot and making a right turn onto westbound 1500 block of Hillside Ave. Cst. Christians stopped the vehicle to conduct a breath screening of the driver at 940hrs.”There is no mention of any traffic infraction or any other cause to pull the driver over.
In a statement, Justice Minister David Lametti called mandatory alcohol screening “a proven traffic safety measure that will deter and better detect alcohol-impaired drivers.”
Adrian Wyld/The Canadian Press/File
In her own written submission, McLeod also says she was never given a reason for the stop. “When the officer pulled me over I asked what I did wrong,” she wrote. “He said it was a random breath test.”Christians’ report says he then observed on McLeod “several characteristics of chronic alcoholism: large red nose, bloodshot eyes, and ruddy cheeks” — a comment McLeod’s lawyers call “unnecessary and appalling” in their court filing. In her submission, McLeod says her cheeks have a red appearance because of rosacea, a long-term skin condition.The police report identifies no evidence of impairment or recent drinking, and McLeod told Christians her last drink was 10:30 p.m. the previous evening. Christians does not appear to have done a standard field sobriety test, another way for police to screen for impairment.The report says there were nine attempts by Christians to get a breath sample from McLeod on an Alco-Sensor device. However, the report says McLeod’s “flow rate was too high and then too low…She did not provide a consistent stream of air. The sample was not suitable.”Christians rejected McLeod’s explanation that she has a mouth implant. “In the opinion of Cst. Christians, McLeod’s implant was not causing any air to leave through her nasal pathway and all the air she was blowing out was leaving via her mouth,” the report says.The report concludes that McLeod “was able to breathe and was not laboured in any way,” and that she was “deliberately attempting to not provide a proper sample even after being instructed, warned, and given multiple opportunities to do so.”Under B.C.’s unusual provincial impaired driving regime, the first route of appeal is through an administrative system, not the courts. McLeod appealed her suspension but did not use a lawyer to do so. She provided a doctor’s note showing that along with the mouth implant, she has “Chronic Obstructive Lung Disease with a reduced capacity to exhale” — a condition she did not mention to the police officer.I asked what I did wrong. He said it was a random breath test
The adjudicator nonetheless rejected the appeal, concluding the police officer was correct that McLeod “did not follow the officer’s instructions on how to blow,” and that it was “more likely than not that your inability to provide a breath sample was due to your conduct and not your medical conditions.”McLeod’s lawyers Jennifer Teryn and Jerry Steele have now filed a petition for judicial review with B.C.’s Supreme Court, alleging multiple Charter violations under mandatory screening that can’t be justified as a reasonable limit. They cite violations of section eight (unreasonable search and seizure), section nine (arbitrary detention), and section ten (right to counsel).“What has happened to Norma McLeod is that the (new) law is so over-broad, it’s beyond its target,” Steele said in an interview. “It’s catching people now that were never intended to be caught up in this.”Teryn said the new law is especially problematic in B.C., given its uniquely harsh provincial rules. “(Mandatory screening) is not minimally impairing…these stops and these mandatory alcohol screening demands are not rationally connected with the objective of stopping impaired drivers,” she said, referring to legal justifications that can be used for limited Charter violations.McLeod’s challenge of mandatory screening is likely to be the first to be heard in Canada due to B.C.’s reliance on administrative tribunals, which processes impaired driving cases much faster. Teryn said she expects they could have a hearing on their Charter challenge before the end of 2019.A statement from federal Justice Minister David Lametti said he can’t comment on a specific case, but said the federal government remains confident mandatory screening is constitutional.“Mandatory alcohol screening is a proven traffic safety measure that will deter and better detect alcohol-impaired drivers,” Lametti said. “Authorities in Ireland, for instance, credit mandatory screening with reducing the number of people killed on Irish roads by 23% in the first year and 40% over the first 4 years following its enactment in 2006.”• Email: firstname.lastname@example.org | Twitter: btaplatt