CKNW Editorial
for September 21, 2000

Let me say at the outset that I believe that the vast majority of policemen staging roadblocks for the purpose of finding impaired drivers act reasonably and within the spirit of the Motor Vehicle Act and the Criminal Code of Canada. But there has been slipped into the Motor Vehicle Act a couple of sections which are recipes for abuse and indeed, I'm informed have resulted in abuse.

Let me say also at this point that if our society wants to have a "zero tolerance" approach to drinking and driving it can do so by passing such a law through its legislature. What it cannot do in honesty, is to permit some alcohol to be consumed then, through the back door, convert that into a "zero tolerance" practice.

In ordinary English these sections permit a peace officer, even when the blood alcohol is below .08, to suspend a licence on the spot for 12 hours and require the driver to pay for the costs of removing and storing the vehicle. The reasoning behind this provision is, no doubt, that some people can be obviously impaired even though they have a very low blood/alcohol reading.

But think on the possible perniciousness of this section. And in illustrating same, I am recording stories that have been told to me as fact ... though I freely admit I have no direct proof. After interviews I have done I am personally satisfied that at least one regular roadblock enforces a "zero tolerance" policy although it may never have been stated as such. What happens is this. The officer asks you if you have had anything to drink. You answer truthfully that you had two glasses of wine ... or beer ... or single drinks over a one hour dinner and are well within the legal limit. The officer demands you take a breathalyzer and you show .04 - well under the limit. He then simply says I think you are impaired anyway and I am suspending your licence to drive and having your car towed away and stores at your expense. You protest that you are well below the limit and are not impaired in fact but it avails you nothing. You protest vigorously, as is your right, so the Officer, annoyed at your lese majesty, charges you with impaired driving. Even though you will likely be acquitted, that will be at a huge expense.

So what does one do, under these apprehended circumstances, do when stopped at a roadblock?

Instead of saying that I have had two glasses of beer over a long dinner, I lie and hope the officer doesn't smell the beer on my breath. I don't want to lie but there is a disincentive to tell the truth, for the truth will mean an automatic suspension. Now, if the officer, in the face of my lie, tests me and finds any alcohol - even though it is well below the legal limit - he will surely suspend me and, because he is angry may charge me with impaired driving knowing that it will cost me a fortune in lawyers' fees and lost time.

I have raised the question of "zero tolerance" with the attorney-general who has emphatically stated that it is not the policy of the ministry - and in fact is contrary to their policy. My producers have raised this question with the detachment involved who also deny having the policy. Yet all I talk to who have been through this roadblock say that it is the policy practiced as well as preached by the peace officer.

This is a very important point. For the common law rule is that a peace officer can only stop you if he has reasonable and probable grounds to think you have committed an offence. We have yielded on that point and permitted unwarranted stoppage of motorists because the carnage caused by impaired  driving is so terrible. This exception to the rule had been approved by the Supreme Court of Canada as has the right to demand that a motorist incriminate himself with a blood test. Fair enough. I thought at the time and think still that was wrong-headed but it is the law and I accept it. But having accepted that we have given the peace officer a discretion which, as I have pointed out above, provide a great opportunity for abuse.

Policemen, in a free society, take their orders from their political masters just as members of the armed forces do. That is the essence of a free nation. I say that it behooves our attorney-general to issue a directive to the police forces of the province that they are to take great care when suspending the licences of people who are within the legal limit and also make it clear that the law is not an injunction against drinking and driving but against having more than the appropriate limit or actually being impaired.

As I said at the start, I don't believe there is much abuse of this section. I believe policemen in general use their discretion carefully. I certainly have no personal ax to grind. But in an era where police powers and the use of them is, rightly, under great scrutiny I believe the Attorney-General has the duty to make it clear that while he is against law breakers he is also for law abiding citizens who, rather than be encouraged by the administration of the law to lie to a peace officer, have every incentive to tell the truth.