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An amazing thing occurred in the House of Commons during Question Period yesterday. Thomas Mulcair the NDP Leader of the Opposition asked the Prime Minister why hasn’t the government amended the Criminal Code to allow “random breath testing” of drivers. Mr. Mulcair, anxious to show that he and his party have the right stuff to govern, was trying to out-tough-on-crime the Harper government, if that’s even possible.
For those who don’t know, random breath testing would allow police to stop you when you’re driving and demand a sample of your breath to check for the presence of alcohol without requiring reasonable and probable grounds to do so. Any time they feel like it, the police can ask for a sample of your breath. I would expect this sort of damn you and your rights attitude from the Harper government but the NDP has clearly crossed a line here. The party of Tommy Douglas and Ed Broadbent — both advocates of civil liberties and limits on police power — has now become the “us too” party when it comes to being tough on crime.
Interesting how Thomas Mulcair began his question with the statistic that “every year more than 1,250 Canadians die as a result of drunk driving” and therefore we need to do everything necessary including curtailing fundamental Charter rights to “prevent hundred of deaths from drunk driving.” That approach is right out of the tough on crime playbook. Identify a problem (whether real or imagined) and then fix it by thumbing your nose at those pesky Charter rights. We all remember Vic Toews telling those who opposed the government’s attempt to snoop on our computers that, you either “stand with us or with the child pornographers.”
Mr. Mulcair should read Justice LeBel’s dissent in R. v. Orbanski  2 S.C.R. 3 who wrote that fundamental rights apply to everyone, including people accused of drunk driving.
 There is no doubt that drunk driving is an evil and a serious danger. Nevertheless, it is not the only such problem that the criminal law and the criminal justice system must address. A criminal code does not address the most savoury aspects of human life, nor does it usually deal with paragons of virtue. The criminal law is concerned with child molesters, killers, small- and big-time thieves, drug traffickers, arsonists, terrorists or gangs, drunk drivers and more. Its purpose is to deter and, where deterrence fails, to punish the guilty. Unfortunately, on occasion, its net catches an innocent suspect or accused, as courts have had to acknowledge from time to time. Thus, the criminal law and now the Charter have given rise to principles, rules and processes, which normally govern the operation of the criminal justice system regardless of who the accused is or what charges he is facing. State action is constrained. Law enforcement moves less smoothly and efficiently in the views of some. At least, after a few centuries, the path of the criminal law no longer leads from the gloom and filth of Newgate to a dance in the sky at Tyburn after a brief encounter with a hanging judge. As things stand, the criminal process, even in respect of drunk drivers, is governed by principles of fundamental justice that are set out clearly in the Charter.
So if you’re keeping score at home, Canada’s Leader of the Opposition has accused the Harper Government of not moving fast enough to curtail the fundamental liberties of Canadians. Isn’t it nice to see the government and the opposition getting along?