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)

Impaired Driving Library Display

New impaired driving legislation is coming into effect on December 16, 2019 that adds stricter penalties for impaired driving, including immediate roadside prohibition.

These new rules are summarized here.

To help understand these changes, we have displayed relevant print and online resources.

For print items in the library see:

  • Impaired driving in Canada (4th edition) by Joseph F. Kenkel
  • Defending drinking and driving cases by Alan D. Gold
  • A guide to breathalyzer certificates in Canada by Alan Pearse
  • Impaired driving in Canada, 2012-2013 ed. By Joseph F. Kenkel
  • Impaired driving in Canada by Joseph F. Kenkel
  • Impaired driving and breathalyzer law : recent case law prepared by Keith R. Hamilton
  • Breathalyzer law in Canada : the prosecution and defence of drinking and driving offences (4th edition)
  • Journal of motor vehicle law

In our online collection we have:

From the Emond collection available behind the member’s portal,
Impaired driving and other criminal code driving offences: A practitioner’s handbook by Karen Jokinen , Peter Keen

And from the Irwin Law collection on desLibris:
Drug-Impaired Driving in Canada by Nathan Baker

As well as eNewsletters such as
Impaired Driving NetLetter(TM) by the Hon. Justice Joseph F. Kenkel

Decision of the Week

This week’s decision is the first reported provincial court decision for 2019: R. v. Osnach, 2019 MBPC 1.


[1]              …  The main issue to be addressed is whether the mandatory minimum one-year driving prohibition imposed under s. 259(1) of the Criminal Code may be reduced on account of time spent under a three-month provincial administrative suspension.

The issue of whether the three month administrative suspension could be included in the one year driving prohibition was likened to credit for time in custody. Choy, P.J. did not agree.


[17]         I also do not accept the defence submission that the situation is analogous to credit for time in custody.  In that regard, the case R. v. Wust, [2000] 1 S.C.R. 455 was relied upon by defence.  I find that the leap from pre-sentence custody credit to credit for provincially mandated driving suspension cannot be made.  Depriving a person of their liberty is not the same as a person being inconvenienced by the inability to operate a motor vehicle.  Liberty is a fundamental individual right, whereas driving is a privilege which is earned. 

New Book Display: Impaired Driving

We’ve put together a display of relevant resources on impaired driving both physical, and electronic to help you and your clients in the New Year. 

Books in the library:

desLibris (Behind the Law Society of Manitoba Member’s Portal)

Newsletters:

  • Segal’s Motor Vehicle and Impaired Driving Newsletter
  • Impaired Driving NetLetter

*Newsletter distribution service is only offered to member’s of the Law Society of Manitoba.

To take out one of these books, please see a staff member.

Considering Cannabis – CPD Series Addressing the Legalization of Cannabis

The federal government’s legalization of non-medical (recreational) cannabis on October 17, 2018, marks the end of a 95-year prohibition in Canada. The magnitude of this change on a societal level is yet to be determined and understood, but lawyers are already grappling with the legal rules and ramifications of legalization. In its continuing professional development (CPD) series Considering Cannabis, the Law Society of Manitoba will offer programs addressing the legalization of cannabis from a variety of legal perspectives.

Our first program in the series features RCMP Sergeant Mark Hume who will speak about the extensive changes to the transportation provisions of the Criminal Code, with a focus on the sections relating to drug-impaired driving. This CPD  Reforms to Transportation Offences and Drug-Impaired Driving Offences takes place this Thursday, November 22, and registration for in-person or webinar  attendance is still available.

Coming up next in the series, on January 10, 2019, Tracey L. Epp, Pitblado LLP  will review the workplace impacts of cannabis legalization, including the need for employers to amend existing policies to address the use of recreational cannabis.

Please watch for further updates about Considering Cannabis programs to come in 2019.