Liberals’ new impaired-driving rules will inevitably target minorities

December 21, 2018

This week, the Liberal government’s self-described “toughest impaired driving rules throughout the world” officially became law. And while Bill C-46 may have a bland title, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, it represents a significant expansion of state power and contains a number of evidentiary short cuts that likely violate the Charter of Rights and Freedoms.

Under the new law, the maximum jail sentences for impaired driving has doubled to 10 years. But this is only the tip of the iceberg.

Starting this week, police have the power to detain, question and demand a roadside breath sample from a driver even if there are no grounds that point to any alcohol consumption.

Foreign students, workers, visitors and permanent residents who are convicted under the new law will now lose their immigration status and be banned from Canada – even if it’s their first offence and they receive no jail time.

And it is no longer just an offence to operate a vehicle while impaired; it is now also an offence to be impaired within two hours after operating a vehicle. In other words, drive sober but have a few drinks afterwards and the script is flipped – it’s now up to the accused to prove innocence.

If these new police powers, Trump-style immigration measures, and courtroom shortcuts sound like a relic of the Harper era tough-on-crime agenda, it’s because they are. The new Liberal drunk-driving law is an almost perfect copy of an old Conservative bill and a former Conservative minister’s private member’s bill. This was surprising political plagiarism from a government that said it “will always stand up for the rights of Canadians and will always respect the Charter of Rights and Freedoms.”

In light of the Liberals’ new drunk-driving law, let me add to that pledge: “ … unless you are a visible minority driving a car.” Because that’s who will first feel the impact of the new law.

It used to be that police could only demand a roadside breath sample if they had some suspicion that a driver had alcohol in their body. The new law does away with those minimal requirements and gives police the power to demand a breath sample without any grounds whatsoever.

I’ll let you in on a poorly kept secret. Visible minorities will be targeted under these new police power. Experience has unfortunately demonstrated that “random” detention and search powers are too often exercised in a non-random manner that disproportionately targets racialized and marginalized individuals.

Visible minorities were disproportionately arrested for marijuana offences and were disproportionately stopped and carded by the police. Things don’t get better when minorities get behind the wheel.

In 2016, the results from the Ottawa Police’s Traffic Stop Race Data Collection Project found that visible minorities were disproportionately subjected to traffic stops. The study also found that after being stopped, visible minorities were actually ticketed for driving infractions less often than non-racialized individuals. In other words, minorities were more likely to be stopped by the police for no reason. Why should we expect things to be any different now that we have given the police even more power?

So, minorities will now not only be pulled over and questioned, but required to exit their vehicle, stand on the roadway or sit in a police cruiser, and provide a breath sample. This procedure may be tolerated by the majority of Canadians who are pulled over once every few years at a RIDE stop. But protection against discrimination and arbitrary harassment should not be determined by what the majority will accept.

For those minorities who are “randomly” pulled over five, 10, or a dozen times, for no obvious reason other than the colour of their skin, being required to submit to a breathalyzer will frequently be experienced as humiliating, degrading and offensive.

Perhaps this is why most Canadians oppose the government’s expansion of police powers. Or why the Senate opposed these new powers and amended the law after hearing the testimony of experts.

But the government quickly rejected that Senate amendment, along with an amendment that would have prevented foreign nationals and permanent residents from being automatically declared inadmissible to Canada after a minor driving conviction.

These are not the actions of a government that really cares about evidenced-based criminal justice reforms or fundamental freedoms.

Justice Minister Jody Wilson-Raybould says she has “every expectation” the new laws will be challenged in court. And she is right. But it will be years until those challenges wind their way through our already overburdened justice system.

And until then we are left with a Conservative law of dubious constitutionality dressed up with some new Liberal rhetoric.

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