Judicial Consideration of Mandatory Roadside Breath Tests

If you practice impaired driving law, you may want to review this decision from Saskatchewan Provincial Court on the constitutional validity of mandatory roadside breath tests as implemented by Bill C-46.

In R. v. Morrison, 2020 SKPC 28, M.M. Baniak, J. delivers a discerning judgment on a variety of issues: notice for delay, a voir dire re Charter challenges blended into the trial itself, analysis of s. 320.27(2) of the Criminal Code including a discussion of Parliament’s legislative intent by analysing the words of the preamble to Bill C-46, and a discussion of the judicial meaning of “immediately”.

[172]      Obviously, s. 320.27(2) also has a deleterious effect.  Every person in a free and democratic society should, to the greatest extent possible, be free from a warrantless search or seizure especially when no grounds or reasonable suspicion exist.  This becomes even more concerning when that search or seizure incriminates the person.

[173]      However, the new provision, even though it eliminates the reasonable suspicion requirement, is grounded to an extent on the premise that it is a supplemental investigative tool that is not determinative of a person’s guilt and is subject to judicial review.  The search is restricted to provision of breath samples.  It does not extend to a person’s belongings or his living space.

Even if it’s not applicable in Manitoba, I think it’s a good example of all the elements that can be considered in a decision.

Additional Commentary:

Saskatchewan court rules mandatory roadside breath testing constitutional / Kyla Lee (The Lawyers Daily, August 24, 2020)

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