ROADSIDE TESTS LEGAL - CHEVRETTE

Nobody being forced to participate in SAAQ study of drivers, he
says

Transport Minister Guy Chevrette defended a program of random drug
testing on motorists yesterday, saying the tests are entirely
voluntary and police don't coerce motorists to take part - they simply
direct them to the people carrying out the testing.

In Shawinigan, where he is attending a two-day Parti Quebecois caucus
meeting, Chevrette rejected any suggestion the study could be
violating the rights of drivers.

"It is simply a collaboration between the Surete du Quebec and (the
province's automobile-insurance board), a spontaneous collaboration,"
Chevrette said.

"It is in all freedom. Nobody, nobody, nobody is forced. It is simply
if they would like to contribute to scientific research."

Chevrette said the study takes place only at police roadblocks, with
researchers from the Societe de l'Assurance Automobile du Quebec doing
the study.

"What is the constraint against the charter (of rights) in that? It is
only between the two ears of certain people," he said.

If he was stopped at a roadblock, Chevrette said, he might or might
not agree to participate in the study.

"If I am tempted to go, I will. If I'm not tempted, I won't. Where is
the constraint? There are people who go crazy with the charter."

Since late July, the SAAQ has established checkpoints across the
province at which police officers motion motorists off the road. SAAQ
representatives then ask whether the drivers want to participate in a
study on the effects of drug consumption on motorists. Participants
are asked to produce a urine or saliva sample and are informed they
will not be penalized for anything the test reveals.

But in reported cases, the police officers involved have not provided
drivers the opportunity to continue on. The police shepherd them to
the SAAQ representatives without explanation.

Last week in Lennoxville, a police officer told people who asked what
was happening that the SAAQ representatives would explain. An SAAQ
spokesman confirmed this, but suggested the police were merely
directing traffic.

The SAAQ wants to gauge how many motorists are impaired through drug
use, and plans to continue the studies until the end of the fall.
Canadian courts do not differentiate between alcohol, drugs and other
substances (airplane glue, for example) in their definition of
impaired. But unlike alcohol, which is indicated through breath tests,
authorities are unable to test for drugs without a court order, and so
the scale of usage is unknown.

Civil-liberties experts like Julius Grey have criticized the study
specifically because police randomly pull people off the road.

Montreal lawyer Jordan Charness, a specialist in automobile law, said
an ordinary person can easily be intimidated into providing a sample
under those circumstances.

"In any situation, the police must have probable cause to pull you
over. They have to have a strong suspicion that something illegal has
taken place," he said.

Charness noted that police have some additional powers sanctioned by
the Supreme Court for certain roadside tests used to catch impaired
drivers, especially around the holidays.

"In essence, what the Supreme Court said was that it is within
society's tolerance limit to allow police to have roadside tests where
people are pulled over at random with absolutely no probable cause.
But the idea behind it is that police forces will advertise (the
roadside checks), and it will keep people from drinking and driving."

The SAAQ is doing the opposite in this case, he said. It does not
advertise when it will test because it wants to reduce the chances of
testing a biased sample. Its only public notice of the testing was a
press release issued July 23 that asked the media to stay away from
testing areas to protect the privacy of participants.

"What the SAAQ is doing now is pulling people over without any benefit
to society that has been sanctioned by a court," Charness said.
"Certainly, they might provide something eventually, but they are just
pulling people over randomly. They have no right to do so.

"The average person is terrified when a policeman pulls them over,
even if they are completely innocent. It's a terrifying experience
because they have no contact with the law otherwise and they get
afraid. This is not a fun thing."

Charness said he estimates only a tiny percentage of the public has
the knowledge or guts to tell the police they are not interested and
wish to continue on their way.

"People won't think it is very much up to them. They'll think, 'If
this is voluntary, what's the police officer doing there?' It takes
away a lot of the voluntariness in this."

The intimidation factor could also affect the scientific validity of
the study. With the presence of the police, a motorist who has
consumed illegal drugs probably would not participate.

"In statistics, this is called a non-response," said Jose Garrido, a
Concordia University mathematics professor.

"You never ask something that is sensitive where there is incentive to
not reply, because then you automatically bias the results. It is a
well-known factor in statistics."