JUSTICE

Coming to blows over drivers’ rights

A legal battle rages over a simple test designed to keep drinking drivers from Canadian roads

Fred Blazer August 3 1981
JUSTICE

Coming to blows over drivers’ rights

A legal battle rages over a simple test designed to keep drinking drivers from Canadian roads

Fred Blazer August 3 1981

Coming to blows over drivers’ rights

A legal battle rages over a simple test designed to keep drinking drivers from Canadian roads

JUSTICE

Fred Blazer

It started as the usual trivial traffic dispute. Robert Dedman, a 44-yearold Oakville, Ont., food wholesaler, was driving home from a spaghetti dinner with friends on the night of Feb. 4, 1980. Metro Toronto police at a roadside checkpoint signalled him to stop, sniffed his breath and asked to administer a breathalyzer test. When the police concluded that he wasn’t blowing properly into the breathalyzer, they charged him with the criminal offence of failing to blow.

Since then the trivial dispute has grown into a major legal war. Dedman became a test case, says his lawyer, Joseph Favaro, “because he wanted to know what his rights were.” But it may still take a Supreme Court of Canada decision this fall before those rights are finally determined.

The Dedman case raises a significant and perplexing question: do Canadian police have the power to stop motorists who, like Dedman, have committed no apparent offence, in order to check for signs of alcohol consumption? Civil libertarians heatedly contend that random checks interfere with the liberty of law-abiding citizens, and that a basic common law presumption forbids the state to intervene in private affairs without at least some suspicion of wrongdoing. The presumption can be overturned by legislation, they maintain, but not by the police themselves. “If the police decide that they can stop

cars at random to check for alcohol,” asks Dedman’s other counsel, Morris Manning, “why can’t they decide to go into houses at random and look for illegal guns?”

Police defenders for their part argue that impaired driving kills more Canadians each year (an estimated 2,000 to 3,000 in 1980) than all other criminal offences combined, and that under the circumstances random checks are a perfectly reasonable police practice that should not be dragged through the courts. Says Dedman prosecutor Murray Segal: “Drunk driving is a criminal offence. Should the police wait until a driver starts weaving around the road, or introduce a simple breathalyzer test which takes almost no time?”

At issue is the legality of the programs designed to administer that simple test. Ontario’s Reduce Impaired

Driving Everywhere (RIDE) program (introduced in 1977 and suspended last December pending the results in Dedman), Alberta’s Check Stop and British Columbia’s CounterAttack (begun in 1975 and 1977 respectively) all use similar methods. Highly visible patrols take up roadside positions; officers then flag cars at their discretion, check licences and request breathalyzer tests whenever they detect a whiff of alcohol.

Dedman’s challenge to the spot-check system began in May, 1980, when an On-

tario provincial court judge, in a surprise decision, held that police had no power to stop a motorist without any indication that an offence had been committed. On appeal, the Ontario High Court compounded the astonishment last December, denouncing random checks as “arbitrary” and delivering a ringing call for the rights of law-abiding citizens “above reproach” to go about their own affairs in peace. These lower court decisions were remarkable because, as University of Western Ontario law Professor Robert Solomon says, they flew in the face of a 50-year trend in Canadian courts, where “the men in blue have almost never lost.” The judgments aroused immediate notice in other provinces. Last fall, a driver in a British Columbia court based his argument on the Dedman decision, only to have a judge throw it out. But this January, in a Newfoundland case (currently under appeal), the Ontario court’s judgment was applauded and an acquittal was handed down.

May brought the most recent decision in the Dedman case—perhaps the most surprising of all. Turning traditionalist, the Ontario Court of Appeal reversed the earlier decisions and reaffirmed police power to stop motorists at random,

but in a way that mystified even spotcheck proponents. Evading the fundamental issue of police powers, the court held that the question of whether police had the right to stop Dedman was “immaterial” because Dedman had stopped “voluntarily” when signalled. “I have no idea what ‘voluntary’ means in this case,” says Osgoode Hall law Professor Alan Grant. Neither did an Alberta provincial court, which on June 29 became the latest tribunal to hold that no provincial legislation gives police arbitrary power to stop drivers for alcohol checks. Says George Watson, defence lawyer in the Alberta action: “The court found that when a person with a pistol and a badge stops somebody, that’s not a request, it’s a command.”

The spate of cases has highlighted troubling questions regarding the effectiveness of spot checks. Recent studies show that portable breath-testing devices used in road checks are less than infallible. Five to seven per cent of drivers found by roadside breath tests to be legally impaired (more than 80 mg of alcohol per 100 ml of blood) turn out to be legally sober when taken to a police station and retested on more accurate equipment. Such systems also involve stopping many unimpaired drivers. In the first year of Ontario’s RIDE program, police flagged 132,550 drivers, of whom 342 failed a breathalyzer test. On the other hand, says Addiction Research Foundation analyst Evelyn Vingilis, police detect 80 times more impaired drivers with the system than without it. “I support it,” she says emphatically. “It’s the best system we’ve got for decreasing drinking-anddriving behavior.”

Other jurisdictions have also agonized over the impaired driving issue. Neither the United States nor Britain has systematic alcohol spot checks, and courts in both countries have inveighed against discretionary police powers. In France the introduction in 1978 of Alcotest, a roadside random check program, was followed by the creation of a populist opposition group, Auto-Defense, whose founder, a travelling salesman, deliberately ran police roadblocks and announced grandiosely that the system represented “an attack on the body of the driver.” Sweden, Japan and Australia, on the other hand, passed legislation implementing discretionary road checks which have proven popular with the public and which have reduced alcohol-related driving fatalities.

In Canada the battle continues. Manning expects to apply for leave to appeal to the Supreme Court Sept. 30. As for Robert Dedman, he intends to stick to genuinely trivial traffic disputes from now on, according to his lawyer. “He thinks it’s important, all right,” says Favaro, “but that once is enough.”