Foran stays strong on new measures
Published Saturday September 6th, 2008
Public Safety Minister wants to fight impaired driving; lawyers fear cost too high
New Brunswick Public Safety Minister John Foran says increased police powers to fight impaired driving will send a strong message to motorists.
"If you're in New Brunswick, you'd better not drink and drive," Foran says.
But lawyers in the Moncton area say the message being sent is that individual rights are not important.
"The Charter of Rights is what makes our country great," says veteran Moncton lawyer Robert Rideout. "We live in a country that respects people's rights and that's what makes Canada unique."
The new legislation was introduced in February 2007 and comes into effect on Monday. It's part of a bigger plan to make roads safer, which includes losing more points for seat-belt infractions and being fined more for speeding violations in construction sites and school zones.
As of Sept. 8, police in this province will have authority to stop vehicles, demand documentation from drivers, and conduct field sobriety tests to determine whether there is evidence of impairment. Officers will no longer be limited to pulling over a motorist whose driving shows signs of possible impairment, such as weaving or crossing over the centre line.
Foran says under common law, it was already implied that officers could pull people over for random checks, but the wording left the door open for defendants to challenge the reason for their stop in court. He says the change simply makes it more explicit in the law that police are allowed to pull drivers over and conduct sobriety tests to determine if they're impaired.
That test could be either out-of-car testing, such as walking a straight line, or testing with the breathalyser. Another change is that drivers with a blood-alcohol concentration of more than .08, or drivers who refuse to provide a blood or breath sample, will be subject to a three-month administrative licence suspension. Their licence is suspended for 24 hours, then they're given a temporary seven-day drivers licence while police and the Crown make a decision on charges. If impaired charges are laid, their licence can be suspended for 90 days.
Foran says both measures are designed to make roads safer, by reducing the number of people killed or injured by drunk drivers. Police in this province like the change.
"This enhanced authority will enable our province's police officers to more effectively combat drinking and driving," says Chief Barry MacKnight, president of the New Brunswick Association of Chiefs of Police. "I am confident that these new tools will prevent injuries and save lives."
Rideout says police should need a reason to pull people over.
"It's a concern, because it gives police the right to stop anyone at any time," he says.
For example, the lawyer says police could target anyone coming out of a bar and driving away in their car, even if they had nothing stronger than a soft drink.
"I'm not being negative towards the police, but there are some overzealous officers who would stop everybody," says Rideout.
When asked if the new police powers will trample the public's Charter rights, Foran says they will not.
"It's been done in many other jurisdictions in North America -- I can speak to Canada -- and it has stood the test of time," says the minister. "I'm sure it will be challenged here."
Moncton lawyer Marc Bourgeois, president of the New Brunswick Criminal Defence Lawyers Association, says a challenge will likely come under section nine of the Charter, which states, "Everyone has the right not to be arbitrarily detained or imprisoned." It will then be up to the courts to decide if pulling over a motorist for no reason and subjecting him to sobriety tests is arbitrary detainment.
"I think in these law and order times, sometimes governments go a little broad in their endeavours," says Bourgeois.
Bourgeois says regardless of what courts in other provinces have decided, judges in New Brunswick can make their own decision when the matter comes before them.
Rideout says it will take "a client with the resources to fight this through the court system," to challenge this.
Both lawyers say the best thing to do if a police officer pulls a motorist over is to cooperate. If police ask a motorist to take the breathalyser and he refuses based on the argument he feels it was an unjustified traffic stop, that person could be charged with refusing the breathalyser.
"Cooperate with police and seek counsel as soon as possible," says Bourgeois. "That's not the time for (debating your rights). Those arguments can be made later."
The idea of a person's drivers licence being suspended for three months before a person has been convicted is also contentious.
"You're not even guilty of something," says Rideout. "Losing your licence can have a devestating effect on a person."
Foran is asked if this 90-day suspension is punishing people before a judge has ruled on their case.
"Some people may feel that way, but again, I want to send out a strong message in New Brunswick. We want no more deaths and no more injuries from drinking and driving," says the minister.
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