Source: National Post

OTTAWA - The federal Justice Department is considering a new law to randomly force drivers to take roadside breath tests, regardless of whether police suspect they have been drinking, Canwest News Service has learned.

Random breath testing, if adopted, would replace Canada's 40-year-old legislation on impaired driving, which dictates that police can only administer breathalyzer tests if they have a reasonable suspicion of drunk driving.

Justice Minister Rob Nicholson publicly raised the prospect of random testing recently at the annual gathering of Mothers Against Drunk Driving.

"He has his justice officials putting together the legal parameters," said MADD chief executive officer Andrew Murie.

Nicholson, when asked by Canwest News Service whether he is considering a new law on random testing, said: "We are looking at all options in that regard."

But he would not elaborate, saying that he currently has a packed slate of anti-crime legislation that is winding its way through Parliament.

"I try not to ever announce anything or get ahead of myself," he said.

The House of Commons justice committee recommended in June that Canada follow in the footsteps of several other countries that have adopted random breath testing. Nicholson must publicly respond to the all-party report by Oct. 19.

Justice Department officials have been seriously considering the pros and cons of revamping the Criminal Code.

The debate centres around whether random testing, while it has proven internationally to be the most effective deterrent that exists to curtail drunk driving, would be a justifiable violation of the Charter of Rights and Freedoms guarantee against unreasonable search and seizure.

MADD says that action is needed because progress in nabbing drunk drivers has stalled in the past decade, largely because the remaining culprits are a hardcore group that was never persuaded to drive sober.

Also, research shows that even when impaired drivers are stopped at sobriety checkpoints, most go undetected so they are never tested, MADD says.

Police are even more likely to miss experienced drinkers, because they exhibit fewer signs of intoxication.

The Traffic Injury Research Foundation reports that in 2006, 907 Canadians were killed in traffic accidents involving a driver who had earlier been drinking.

The justice committee, in its recent report, concluded the "current methods of enforcing the law lead police officers to apprehend only a small percentage of impaired drivers, even at roadside traffic stops."

The report noted an Australian study showed a 36% decrease in the number of people killed in drunk-driving accidents after several states adopted random testing. An Irish study reported a 23 per cent drop in traffic deaths after Ireland passed a similar law in 2006.

The committee report says that random testing could be legally challenged as an unreasonable search and seizure, but that the courts could uphold the law under a charter section that preserves otherwise unconstitutional legislation if it is shown to be a "reasonable and demonstrably justified" infringement.

The report points out that the Supreme Court of Canada has already said that "there is no question that reducing the carnage caused by impaired driving continues to be a compelling and worthwhile government objective."

MADD, in a background paper, said that most European countries and Australian states, as well as New Zealand, have adopted such laws, beginning with the Scandinavian countries more than 30 years ago.

"While random breath testing will be challenged under the charter, this should not deter Parliament from introducing a measure that has dramatically reduced alcohol-related crash deaths around the world and can do the same in Canada," says the paper.