I wrote enthusiastically in favour of the new police powers last week. I promised to follow up addressing the many concerns raised about our rights.
But first, what is my agenda? Some have suggested that I’m biased. I am, but not in the ways suggested.
I am not a former Crown counsel. My only experience with criminal law was early in my career, doing a smattering of criminal defence work.
Is this political? I did credit “Santa Trudeau” for the road safety Christmas gift, but my opinions are not political. I hate politics. The whims of under-informed voters seem to get in the way of politicians doing what’s right, while allowing them to get away (at times) with what’s very wrong.
And I’m not poised to cash in on the legal work that will inevitably flow from more offenders facing consequences for driving over legal alcohol limits, and from Charter attacks against this new law.
My bias is road safety.
But not at any cost. Our individual rights, protected by the Charter of Rights and Freedoms, are important to me.
Like most things in life, it’s a matter of balance.
We did not decide, as a society, to make our individual rights absolute. The Charter does not enshrine an absolute right to be free from search and seizure by the police. The wording of that section (section 8) specifically contemplates balance: “Everyone has the right to be secure against unreasonable search or seizure.”
It is not all police search or seizure that we are free from. It is “unreasonable” search or seizure.
And all of our rights are subject to an overall reasonableness standard. The very first section of the Charter says this: “The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.”
Putting it all together, the government can enact laws that infringe on our rights, including subjecting us to “unreasonable search or seizure” so long as the limits on our rights are justifiable in the context of a free and democratic society.
Can we trust the government to strike that balance for us? Hell, no! We hope that they will, but we certainly cannot trust them to. As I alluded to earlier, the laws they pass so often compromise what’s right, following the whims of under-informed voters.
We rely on our legal system to ensure the right balance is struck.
We rely on citizens, whose rights are impacted by laws, to challenge those laws in the courts.
And on the government to put their best foot forward to defend the laws as having reasonable and justifiable limits on our rights.
We rely on the courts to carefully consider both sides, review the incredible depth of legal precedent that has developed since the 1982 Charter enactment, and make decisions that strike the right balance pursuant to the rule of law.
Does the system work? Are our rights protected?
In the 36 years since the Charter enactment in 1982, I don’t see us sliding down the slope into a police state.
For an excellent example of the system working, read the decision of the Supreme Court of Canada that I cited in my last column, where the courts struck down the first version of British Columbia’s legislation imposing immediate roadside prohibitions. British Columbia law makers were forced to make changes in the law to accommodate the court’s findings.
The result? New and improved IRP laws that strike the right balance between road safety and our Charter rights.
Does the new law, allowing police to automatically screen drivers for blood alcohol content, run afoul of the Charter? We’ll see if the right balance has been struck. As a road safety advocate, I hope it has been.
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