POLICE ASSOCIATION OF NOVA SCOTIA 81 The following considerations support the consistency of this section with the Charter. The provision applies only if a person is otherwise lawfully stopped and provides lawful authority to interfere with privacy in a breath sample to further the important objective of enhanced road safety. The privacy interest in a breath sample in this context is low. The Supreme Court of Canada has recognized as reasonable the authority, under provincial law and common law, of police officers to stop vehicles at random to ensure that drivers are licensed and insured, that the vehicle is mechanically fit, and to check for sobriety. The information revealed from a breath sample is, like the production of a drivers licence, simply information about whether a driver is complying with one of the conditions imposed in the highly regulated context of driving. It does not reveal any personal or sensitive information and taking the sample is quick, and not physically invasive. A “fail” does not constitute an offence, but is simply a step that could lead to further testing on an Approved Instrument (AI, or “breathalyzer”), typically at a police station. Eliminating the requirement that an officer form reasonable suspicion furthers the Government’s compelling objective. The evidence shows that, currently, police officers often face many challenges in detecting when drivers have consumed alcohol and so may fail to demand a breath sample. As new section 320.27(2) would authorize a police officer to make a demand without having to make inquiries into whether an individual had consumed alcohol, it would reduce the impact of this kind of human error. It also would increase the deterrent effect of roadside stops by eliminating the perception that motorists could avoid having to give a sample by hiding their impairment. This approach has been introduced in a number of countries, including Australia, New Zealand, Ireland, France, Belgium and the Netherlands. Research in a number of countries demonstrates that it has contributed to a measurable reduction in accidents and deaths on roads and highways. For example, in Ireland, it has been credited by the Road Safety Authority with a 23% reduction in road deaths in the 11 months after introduction. In New Zealand, visible mandatory-screening checkpoints were credited with a 32% reduction in crashes. In the State of Tasmania, serious accidents declined by 24% in the first year after the introduction of Mandatory Alcohol Screening, while in Western Australia, fatal accidents declined by 28% in the first year. Approved Screening Devices (ASDs) Clauses 3(1)-(5) and 4 (new section 254.01) expand the use of ASDs to include devices that test bodily samples (for example, oral fluid) for the presence of drugs (“drug screeners”). An officer could demand that an individual submit to a test on a drug screener where the officer has reasonable grounds to suspect that the individual has a drug in his or her body. Any such screening devices would have to be approved by the Attorney General of Canada. The following considerations support the consistency of this section with the Charter. Like the roadside alcohol screeners that are used under the existing framework, a drug screener is an investigative tool used at the roadside solely to help an officer determine if reasonable grounds exist to believe that an offence has been committed. It would not be used to prove the offence at trial. Like a roadside alcohol screener, a drug screener is a quick, non-intrusive search method that reveals information in which individuals have a limited expectation of privacy given the highly regulated highway context. The provision would require that an officer, before demanding a sample, have a reasonable suspicion that the individual has a drug in his or her body. This reduces the potential for unnecessary administration of the tests. The use of non-intrusive drug screeners subject to the existing framework for the use of ASDs continued ...
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