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)

Decision of the Week – S. 2(b) Charter Challenge

This decision by Lanchbery, J. concerns the right of Manitoba Public Insurance to cancel a personalized licence plate (PLP) after allowing the respondent to display it for almost two years. The slogan on the licence plate was based on characters from Star Trek.

[88]      The question before me, is the limit of s. 2(b) rights on PLPs for the purpose to “eliminate the inappropriate/possibly offensive slogans”, reasonable.

Troller v. Manitoba Public Insurance Corporation, 2019 MBQB 157

The parties agreed that the decision to revoke the PLP is a discretionary administrative act of the Registrar (para. 81). Lanchbery, J. found that Charter protections are engaged, but further analysis showed that the actions of MPIC were reasonable.

One interesting fact that came out of this was that MPIC uses the Urban Dictionary as one of its sources to determine whether a potential PLP is offensive.

Please note: The library will be closing early on Friday, March 1 at 11:00am for a special event.