Honourable senators, as you know, the Standing Senate Committee on Legal and Constitutional Affairs voted to remove all references to mandatory alcohol screening from Bill C-46, and in so doing the committee rejected the central policy change the bill had introduced to combat the scourge of drunk driving in Canada. I believe the committee was wrong to amend the bill as they did.

Motion in Amendment

Hon. Marc Gold: Therefore, honourable senators, in amendment, I move:

That Bill C-46, as amended, be not now read a third time, but that it be further amended in clause 15,

(a)on page 23, by replacing line 35 (as replaced by decision of the Senate on June 4, 2018) with the following:

“320.27 (1) If a peace officer has reasonable grounds to”;

(b)on page 24, by adding the following after line 17:

“(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.”; and

(c)on page 34, by replacing line 18 (as replaced by decision of the Senate on June 4, 2018) with the following:

“conducted under paragraph 320.27(1)(a); and”.

The Hon. the Speaker: In amendment it was moved by the Honourable Senator Gold, seconded by the Honourable Senator Pate, that Bill C-46, as amended, be not now read a third time, but that it be further amended in clause 15 — shall I dispense?

Hon. Senators: Dispense.

Senator Gold: Honourable senators, during the committee hearings, witnesses from the bar argued strenuously that the law would infringe the Charter. On the other hand, the committee heard testimony from the minister and government officials and received briefs from prominent law Professors Peter Hogg, Robert Solomon and Dean Erika Chamberlain, all of whom supported the constitutionality of mandatory alcohol screening under the Charter.

On the last day of its hearings, the committee also heard from a leading criminal law scholar, Professor Don Stuart, who also argued against the constitutionality of the bill on the grounds that it violated section 8 and would not be likely be saved under section 1. He went on to state, in a line that I suspect we will hear repeated on more than one occasion during this debate, that “. . . the Supreme Court of Canada has never saved a section 8 violation under section 1 . . . .”

[Translation]

I have tremendous respect for Professor Stuart, but I think he’s wrong and that Professors Hogg, Chamberlain and Solomon are right in saying that mandatory alcohol screening would be considered constitutional. However, honourable senators, that’s not the point I’m here to make. It’s rare for constitutional law to be so black and white. The truth is that there are sound arguments on both sides, and significant constitutional rights and values are at stake. This is a thorny question, and well-informed, rational, well-meaning people can disagree. It is precisely for this reason that I think it was inappropriate for the committee to remove the mandatory alcohol screening.

[English]

It would take me too much time and take us too far afield to fully develop the constitutional analysis in support of my view that the bill would withstand constitutional challenge. So, with regrets, you’re going to have to do without extensive quotes from the witnesses and extensive quotes from the Supreme Court of Canada jurisprudence. I apologize.

Let me simply make the following points, and I’ll be happy to take any questions you may have.

First, there’s a strong case that mandatory alcohol screening would not in fact infringe section 8 of the Charter. The law would be prescribed by law, the law is reasonable, and the demand for the breath sample would be obtained in a reasonable manner. Professor Hogg makes this case very succinctly and persuasively, but, in any event, mandatory alcohol screening would likely be upheld as a reasonable limit under section 1, building upon the jurisprudence in the courts upholding random stops as reasonable limits to the right not to be arbitrarily detained and the right to counsel.

As I stated in my speech on second reading, Bill C-46 would clearly satisfy the first two parts of the four-part test that the Supreme Court has established under section 1. First, the court has ruled that reducing the harm caused by impaired driving is a sufficiently important objective to justify limiting Charter rights; and, second, whatever else you may think about mandatory alcohol screening, it clearly bears a rational connection to the bill’s objective of deterring drinking and driving.

Now, the third and fourth parts of the test speak to proportionality:Does the law infringe the right no more than necessary to achieve its objective? And do the benefits of the law outweigh the infringement of the right?

[Translation]

The committee heard that about half of impaired drivers escape detection by police under the current system.

[English]

About 50 per cent escaped detection.

[Translation]

Other witnesses said that countries that introduced mandatory screening saw a huge decline in the number of impaired driving incidents and accidents. However, the bill’s critics question how much value should be placed on those studies and claim the predicted effect is still only hypothetical. Other experts, like Professor Stuart, think this opinion is a red herring, as many of the countries cited have no constitutional charter of rights and freedoms. As I interpret the testimony, the critics are wrong.

[English]

Canada has one of the worst impaired driving records amongst comparable developed countries and lags behind the over 100 countries who have already introduced mandatory alcohol screening programs of some kind.

Although the experience varies from country to country, the evidence seems compelling that mandatory alcohol screening is more effective in reducing and deterring drunk driving than the alternatives. Now, the critics of mandatory alcohol screening disagree, and they point to the differences between our regime and others. However, several jurisdictions had regimes similar to ours before they introduced mandatory alcohol screening, and in my reading of the relevant literature, I’m satisfied that the studies demonstrating the effectiveness of mandatory screening properly controlled for the relevant factors, including the state of the law before mandatory alcohol screening was introduced, the impact of public education campaigns and changes to the levels of police and enforcement.

In my opinion, therefore, the government had a strong evidentiary basis upon which to conclude that the introduction of mandatory alcohol screening would materially reduce the number of drunk drivers who escaped detection and thereby reduce the harm caused by drunk driving.

Finally, mandatory alcohol screening restricts Charter rights no more than is necessary to achieve the important objectives of the law.

Now, colleagues, we must keep in mind that the police already have the power to randomly stop drivers under our current law, both in common law and in statute, and they can do so to verify licensing, ownership, insurance and, importantly, sobriety. The power has been repeatedly held to be constitutional over many decades. Bill C-46, rightly or wrongly, doesn’t change that.

The only change that it introduces is to remove the requirement that the police have a reasonable suspicion that the driver consumed alcohol before the police can demand a breath sample. Nothing else changes with respect to the subsequent steps that drivers must do if they fail that roadside test. So if you believe that mandatory alcohol screening would reduce the number of drivers who escape detection — and remember, the evidence suggests that it is as many as 50 per cent — then the answer is clear.

Moreover, our courts have recognized that we have different expectations of privacy depending on our circumstances. Driving is already a heavily regulated activity, and our reasonable expectations of privacy, which are at the heart of Charter protection, are different when we get behind the wheel than they are when we return to the safe confines of our homes. Indeed, as you know, we are subject to be searched, frisked, even X-rayed and our skin swabbed when we go to an airport to board a plane.

Now, of course, the taking of a breath sample engages us in a more personal and intimate way than simply a demand to produce proof of insurance. Our breath is the very essence of our life. Nevertheless, a demand for a breath sample is far less intrusive than a body search or a demand for a blood sample. It reveals no personal information about the individual except their blood alcohol level. It’s transitory, and it takes very little time to administer. Mandatory alcohol screening ensures a brief encounter. The officer is required to have an approved device in possession, and the driver must be in care or control before the demand can be made. Because it is mandatory, it causes no stigma or embarrassment to drivers, and the results are not retained in evidence.

(2050)

On balance, I believe that there is ample evidence to support the view that the introduction of mandatory alcohol screening in Canada would be more effective in reducing the incidence of drunk driving than the maintenance of our current system and that it would infringe our Charter rights no more than is necessary to achieve that objective. So I conclude that the introduction of mandatory alcohol screening is constitutionally valid.

However, I’m very mindful that there are strong arguments to the contrary. We heard them at committee, and you’ll hear them again in the chamber. And if my amendment is successful and mandatory alcohol screening is returned to the bill, it will be challenged in the courts — of course. We don’t know how the lower courts will rule before the cases find their way to the Supreme Court. There is no way to avoid this, short of accepting the status quo and never legislating in this area.

And when it gets to the Supreme Court, it is virtually impossible to predict how the court will rule. Only either the most inexperienced or the most arrogant student of the court would claim otherwise.

The fact is that the Supreme Court has changed its position on critically important Charter issues over the years. The law in some very important areas remains unsettled to this day. It doesn’t consider itself bound by previous decisions unless it decides it wants to, and more importantly for our purposes, the court’s approach to how it applies section 1 has varied dramatically over the years, depending on the issues before the court and the change in the composition of the court.

So what do we do? What is our constitutional obligation as senators when we’re faced with competing and conflicting arguments from reputable lawyers and academics who disagree on the constitutionality of this bill?

I come to the heart of why I’m speaking on this matter.

The Constitution of Canada binds us as parliamentarians, just as it binds government and the courts, but we all play different roles in interpreting and applying the Constitution. It’s critical that we as senators recognize and respect the distinctions that obtain between the Senate, the House of Commons, the government and the judiciary. We can put them all together, the difference between Parliament and the government, Parliament and the judiciary, and so on.

Now, as senators we have a responsibility to ensure that proposed legislation respects the Constitution and its values. In this respect, we have a duty to interpret the Constitution as best we as we can. But we’re not a court of law, much less the Supreme Court of Canada.

Yes, there may be circumstances and some situations — we can all imagine them — where the infringements of the Charter are so blatant and the arguments for upholding the laws so flimsy and spurious that it would be our constitutional duty to refuse to pass such a law. But that is clearly not the case here.

We have arguments from reputable academics, including the one who is cited more often in the Supreme Court of Canada than any other author in history. We have the leading experts in impaired driving law, and, yes, we have reputable defence lawyers and civil liberties lawyers from the bar.

So I come to this, senators: Where the government’s policies are reasonable, where they’re based upon credible scientific evidence, and where its constitutional position is supported by impartial and distinguished academic analysis, we ought to accept the policy decisions that were approved by the elected House of Commons. Yes, our responsibility is to ensure that the laws respect our Constitution and its values, but unless a bill so obviously and unambiguously violates the Constitution, and that is clearly not the case here, the Senate should not substitute itself for the courts. To do otherwise would be to go beyond our legitimate role as an independent and complementary legislative body and assume a constitutional role for the Senate that properly belongs to the judiciary.

It is for these reasons, honourable senators, that I hope you will support this amendment to reintroduce mandatory alcohol screening into Bill C-46. The safety of all Canadians is in our hands.