Thank you, Mr. Chair.

I have given the committee a four-page document, so I will briefly summarize that. The document is available to the committee with a somewhat fuller analysis than I can make in my 10 minutes.

I have read Mr. Solomon's written submission and, of course, I listened to him because I've been in the committee room from the beginning. I accept completely what he says about the benign impact of random breath testing. I'm not going to talk about that at all. I'm simply going to talk about the constitutional questions which have been raised by some of the witnesses.

First of all, section 8 is the provision that prohibits unreasonable search and seizure. The CCLA and the CBA thought that random breath testing would violate section 8. I don't think that's correct. All that section 8 says is that everyone has the right to be secure against unreasonable search and seizure. It seems to me that concerns about road safety are such that steps like random breath testing will be accepted as reasonable because they're directed, of course, at adding some more regulation, admittedly, but to what is already a highly regulated activity, and it's a highly regulated activity because it's a very dangerous activity.

I agree with Professor Solomon that random breath testing is going to typically—some of the questioners pointed out that this won't always be the case—take place at a stationary roadblock in which the police officers will have no discretion, and they will simply test everybody. Therefore, I think the section 8 concerns are not a problem.

There's also the section 9 concerns. Section 9 is the provision that prohibits an arbitrary detention. The Supreme Court has already addressed random stopping of vehicles, not for random breath testing of course, but to check licensing, ownership, insurance, as well as sobriety. The court has said that those are arbitrary stops because they are random, but they are justified under section 1. Random breath testing, RBT, is going to fall out in exactly the same way; it will be accepted as justified under section 1 because of its contributions to road safety.

The right to counsel was mentioned by the CBA representatives. What section 10(b) of the charter says is that everyone has a right on arrest or detention to retain and instruct counsel without delay. Obviously, it's completely impossible to allow people to retain and instruct counsel in random breath testing, so that will not be able to be complied with. It shouldn't be complied with, because for people who want to instruct counsel it will probably take several hours to contact their counsel, by which time the random breath testing will be useless.

There is a case called Orbanski which I talk about in the little submission I have made to the committee. It was decided by the Supreme Court in 2005. There were two drivers. One had been stopped at a random stop, and the other had been stopped because he was driving erratically, but they both challenged the stoppage because they had not been advised of their right to counsel when they were stopped. Justice Louise Charron of the Supreme Court of Canada said, for the majority, that since the major purpose of a police power to stop drivers was to check sobriety, and since time was of the essence in checking sobriety, the provincial law, which said nothing about right to counsel—in this case, it was a provincial law—should be interpreted as not permitting drivers to retain counsel before giving a breath test. She said that's how the legislation should be interpreted.

I think Orbanski would save RBT from the ruinous effect of the right to counsel. I say “ruinous effect”, and it would be a ruinous effect. It is going to be an infringement of the right to counsel, but it's one that will be easily justified under section 1.

My paper goes on to talk a bit about section 1, but I don't think there's any need for me to detain the committee on that, because it's there in my paper. Those are the main provisions that are being invoked in favour of a constitutional challenge to the proposal.

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