Random roadside breath tests 'an erosion of constitutional rights,' B.C. man's petition alleges

A B.C. man with severe asthma has filed a constitutional challenge against the federal government's new law on mandatory roadside breath tests.

Jimmy Forster, 63, takes daily medications to help his breathing and speaks with an audible wheeze.

He recently had his car impounded and his driver's licence suspended twice after Chase RCMP pulled him over and he was unable to blow hard enough for a breathalyzer to register a reading.

Forster filed a petition in B.C. Supreme Court last week, challenging recent changes to the Criminal Code that allow police to pull over any vehicle and force the driver to take a breath test.

"While it is clearly within the competence of Parliament to enact laws that infringe the rights of every citizen and resident of this country, the question is not whether they can, but whether they should," the petition reads.

It goes on to state that the law "represents an erosion of constitutional rights that cannot be promoted or condoned."

Forster alleges that the law infringes on the charter right to be free from unreasonable search and seizure or arbitrary detention and the right to consult with a lawyer. He also wants a stay of his driving prohibition and other penalties, as well as the return of his licence.

The B.C. superintendent of motor vehicles and the attorney general are named as respondents. The government bodies have yet to file a response and none of the allegations in the petition have been proven in court.

A B.C. government spokesperson said the province could not comment while the matter is before the courts but pointed out that the decision to allow random testing was federal.

B.C. looking into fairness of roadside tests

The new alcohol screening powers came into effect on Dec. 18. In the past, police couldn't require a roadside breath test unless they had a reasonable suspicion that a driver had consumed alcohol.

As CBC has reported, Forster was pulled over on Feb. 14 and March 20 and forced to take a breath test. Both times, he says he couldn't get a reading because of his severe asthma.

Both times, the RCMP issued immediate roadside prohibitions from driving and his vehicle was impounded.

On the first occasion, the case was dismissed after Forster appealed to an adjudicator. He lost his second appeal when the adjudicator said he believed police notes suggesting Forster was "putting on a show" to make it look like he was unable to provide a breath sample.

Forster told CBC last month that he faces about $1,400 in fees to get his car released from impound and has spent $200 each time he appealed the prohibitions.

The B.C. Ministry of Public Safety and Solicitor General says it is currently looking into the fairness of roadside testing for people with medical conditions, as well as the limitations of roadside breath testing devices.