The Senate Committee on Legal and Constitutional Affairs is studying Bill C-46, the government’s proposed changes to the Criminal Code provisions dealing with impaired driving. As a member of that committee, and as a law professor specializing in constitutional law, civil liberties and the law of evidence, I read with interest the March 7 article by Cristin Schmitz in which several of my colleagues on the committee, including the chair, pronounced on the constitutionality of the bill.

Despite my respect for my colleagues’ opinions and expertise, I believe their conclusions to be premature, potentially misleading and, in my opinion, wrong in law. For these reasons, I feel compelled to respond.  

Their conclusions are premature as the committee has not concluded its study. We have heard from many witnesses, but others have yet to appear, notably several leading academics who have written in support of the constitutionality of the law. The committee has not had the opportunity to question these witnesses. Nor have we discussed these issues among ourselves.

The senators cited in the article also fail to convey a complete picture of the evidence before the committee. To be sure, representatives of the defence bar testified that the bill infringed on the Charter. Their opinions are legitimate and worthy of consideration. But the committee also had access to a brief submitted by Professor Hogg, an influential constitutional law professor, in which he concluded that the bill would be upheld under section 1 of the Charter. In addition, the committee received a brief from Dean Chamberlain and Professor Solomon of the University of Western Ontario, Faculty of Law, wherein the Charter issues are canvassed exhaustively. The plain fact is that the committee has evidence on both sides of the issue.

Moreover, the senators cited do not speak for the committee as a whole. I do not wish to speak for my colleagues in the Independent Senators Group, but I am confident that I am not alone in believing that Bill C-46 is constitutionally valid.

Finally, the conclusion of the chair that the bill is “full of holes, “totally contrary to the Charter” and that “there is no question about it” is, I believe, wrong in law.

Few would dispute that random breath testing engages Charter rights. That is not at issue. The fundamental question of law is whether random breath testing constitutes a reasonable limit as contemplated by section 1 of the Charter. In my analysis of the evidence, as well as my review of the academic literature, I conclude that it does.

The Supreme Court has established a four-part test to determine whether a limit, otherwise prescribed by law, will be upheld as reasonable. Bill C-46 would satisfy the first two parts of the test, as our courts already have ruled that reducing the harm caused by impaired driving is a sufficiently important objective to justify limiting Charter rights, and because random breath testing clearly has a rational connection to the bill’s objective of deterring drinking and driving.

The third part of the test asks whether the law impairs the right no more than is necessary to achieve its objective, while the fourth part of the test is one of proportionality, requiring us to balance the Charter infringement with the benefits that the law seeks to achieve. I will treat them together, as many scholars have noted that they address the same two issues.

The first issue focuses on the nature and extent of the Charter infringement. Supporters of the bill argue that random roadside testing is quick, non-invasive and non-stigmatizing, and is analogous to a random stop to verify whether a driver has a valid licence. Although critics challenge these assumptions, I believe that the Charter infringements are relatively modest in the context of an already heavily regulated activity, such as driving.

Section 1 also requires an analysis of whether the means adopted in the law are necessary to achieve the objectives of the law, and whether the objectives could be achieved in a way that infringes less on our rights. This boils down to an evaluation of the efficacy of random breath testing as compared with our current system.

The committee heard evidence that demonstrates the positive benefits of random breath testing in other jurisdictions. However, critics of the bill have questioned the weight that these studies ought to be given, and that the projected impact remains speculative. I believe that these studies have properly controlled for the differences between jurisdictions and provide credible, evidence-based support for the government’s policy decision.

Moreover, one cannot ignore the fact that impaired driving is the leading criminal cause of death and injury in Canada, and that evidence suggests that up to 50% of impaired drivers escape police detection under our current regime. Putting these considerations together, I conclude that the introduction of random breath testing restricts Charter rights no more than is necessary and is a proportionate response to the objective of reducing the harm caused by impaired driving.

Let me conclude with a word about the role of the Senate.

The Senate has a responsibility to ensure that proposed legislation respects the Constitution and its values. But unless a bill so obviously and unambiguously violates the Constitution, the Senate should not substitute itself for our courts. Where the government’s policy choices are reasonable and based upon credible evidence, where its constitutional position is supported by impartial and distinguished academic analysis, and where the government received an electoral mandate to enact the bill in question, the Senate ought to defer to the policy decisions of the elected House of Commons. To do otherwise would be to go beyond our legitimate role as an independent and complementary legislative body.

Senator Marc Gold is a lawyer, business executive, academic and Jewish community leader. He is considered an expert in constitutional law. He is currently an adjunct professor of law at McGill University.