The government’s leader in the Senate, Peter Harder, slammed the committee’s removal of the provision

A police officer interviews drivers during a RIDE program.

In a controversial move that may set up another showdown with the House of Commons, a Senate committee voted on Wednesday night to remove random alcohol testing from the government’s impaired driving legislation.

The provision would allow police to demand a breathalyzer test from any driver regardless of whether police had reasonable grounds to believe the driver had consumed alcohol. Currently police need that reasonable suspicion to make the breathalyzer demand, which drivers are punished for refusing.

There has been heated debate over whether random testing (also referred to as mandatory screening) is constitutional, as section eight of the Charter protects against unreasonable search and seizure. The government points to evidence that random testing has caused impaired driving rates to drop steeply in countries that have it, such as Australia and Ireland.

On Thursday afternoon, Justice Minister Jody Wilson-Raybould said she was “extremely disappointed” the Senate legal affairs committee had voted to remove it, and made it clear the government will insist on restoring random testing before passing Bill C-46 into law.

“Mandatory alcohol screening is the centrepiece of this legislation,” she said. “We are determined to ensure that mandatory alcohol screening goes forward. Partisan politics has nothing to do with saving people’s lives, and mandatory screening will save lives.”

Liberals were also scornful of the fact it was Conservative senators who led the way on removing the provision, given Conservatives have themselves frequently called for random testing. As recently as 2016, Conservative MP and former cabinet minister Steven Blaney had introduced a private members bill with random testing.

“It’s been spoken in support of by a number of senior Conservatives, and I find it passing strange that when it appears in a government bill, the senators of the Conservative caucus would unanimously oppose it,” said Peter Harder, the government leader in the Senate.

He said he’ll ask the full Senate chamber to reject the committee’s amendment before the final vote takes place.

“It is unacceptable,” he said. “It guts the bill, the intent of the bill.”

The amendment was moved in committee by Conservative Sen. Denise Batters, who argued that random testing would cause further delays in the courts as drivers fought against it.

“We had criminal defence lawyers with lengthy careers in this field tell us that these provisions would lead to a decade of Charter challenge litigation,” she said. “They called it Christmas.”

The 6-5 vote was pushed through by five Conservative senators, but the key tie-breaking vote came from Sen. Serge Joyal, a formal Liberal MP (and constitutional expert) appointed to the Senate by then-Prime Minister Jean Chretien.

Sen. Jim Munson, filling the other Liberal seat in place of Sen. Mobina Jaffer, abstained in the vote. Liberal senators are no longer part of the Liberal caucus due to Prime Minister Justin Trudeau’s effort to make the Senate more independent.

All five independent senators on the committee, appointed by Trudeau, voted against.

Sen. Marc Gold, a former Osgoode Hall law professor, tried to persuade the committee to vote down the amendment.

“I think the government has made a policy choice in the interests of reducing the harm caused by drunk driving,” he said.

“It is true that we’ve heard a lot of testimony from lawyers and law professors about the infringements of the Charter that random and mandatory testing necessarily entails, but we also had evidence to the contrary from eminent scholars in their own right who believe, as the government does, that the mandatory alcohol testing is justified under the Charter of Rights.”

When the House of Commons was studying the bill, for example, constitutional expert Peter Hogg testified that he believed random testing would be Charter compliant because driving is already a highly regulated activity. He believed courts would accept this further restriction due to the danger caused by impaired driving.

Bill C-46 was introduced in 2017 alongside Bill C-45, which legalizes the use of recreational cannabis. C-46 also creates new powers and penalties around drug-impaired driving, but the random testing provision only applies to alcohol due to the unsettled science around proving cannabis impairment.

Conservative senators had put forward numerous other amendments, including one that would require the government to get parliamentary approval before setting THC blood level limits through regulations, and to show Parliament the scientific evidence linking the proposed level to impairment. However, that was defeated by the independent and Liberal senators.

The bill will now go back to the Senate chamber for a final vote, where it could get amended again. If any amendments stand, the bill will then go to the House of Commons, which could reject the changes and send it back to the Senate until both sides agree on the final bill.

The unelected Senate typically relents if the Commons refuses to accept its changes, but the back-and-forth procedure could delay the passage of the bill.

Source: National Post