Random Breath Testing in Canada: Reasonable Expectation of Privacy?

One of our more cherished protections in Canada is what we call the “reasonable expectation of privacy.” Last summer, a Federal Committee made 10 recommendations regarding impaired driving which the government accepted in principle. One recommendation was that random breath testing in Canada be put in place. What will that mean to your reasonable expectation of privacy?

Currently under our “drinking and driving” laws, the police must develop reasonable and probable grounds before they can take you to station and demand that you blow into an “Approved Instrument” (AI). One way they can form these grounds, is if you blow into a roadside screening device – called an “Approved Screening Device” (ASD) – and it registers a “fail”. (It is not a criminal offence to fail the ASD test. The criminal charge arises from later blowing “over 80” on the AI at the police station.) For the police to make the ASD demand, they have to have a reasonable suspicion that you have been drinking. That’s pretty low threshold, but it does mark a line between needing a reason to make the demand and being able to force you without having to meet any legal justification. To require all drivers to submit to a screening device test whenever demanded by the police, without any suspicion that there is alcohol in the driver’s body is random roadside breath testing.

When the police take a sample of your breath, this is a search. Just as it is a search when they take a sample of your blood or DNA, or go through your belongings and take things as evidence. Section 8 of the Charter of Rights and Freedoms (which is part of our Constitution) provides that: “Everyone has the right to be secure against unreasonable search or seizure.” In other words, s.8 protects your reasonable expectation of privacy from unreasonable state intrusion. Therefore, because of s.8, search and seizure must be carried out either under the authority of a warrant, or be authorized by a law that is reasonable and is carried out in a reasonable manner. From the case law we see that whether a search is to be considered reasonable or not, depends on the situation. The reason that the taking of breath samples under the current regime does not constitute an unreasonable search and seizure, is that the AI breath sample can only be demanded when there are reasonable and probable grounds to believe that the driver is impaired by alcohol. As stated above, the police can establish reasonable and probable grounds if you register a “fail” when you blow at the roadside. However, remember: the police cannot make you blow into the ASD, unless they have a reasonable suspicion that you are impaired by alcohol. Random roadside breath testing would take away that requirement of reasonable suspicion. You could be pulled over anytime and be required to provide a breath sample. Is it too great an expectation of privacy to assume that the state should not be able to demand your breath without having a reason? Is that “reasonable”?