Winnipeg Free Press

Winnipeg Free Press (Newspaper) - June 22, 2012, Winnipeg, Manitoba C M Y K PAGE A12 EDITORIALS WINNIPEG FREE PRESS, FRIDAY, JUNE 22, 2012 Freedom of Trade Liberty of Religion Equality of Civil Rights A 12 COMMENT EDITOR: Gerald Flood 697- 7269 gerald. flood@ freepress. mb. ca winnipegfreepress. com EDITORIAL T HE Manitoba Court of Appeal has taken the unusual step of agreeing to hear a previously tried, and appealed, conviction for driving over the legal limit of .08 milligrams of alcohol per 100 millilitres of blood - better known as " drive over 80." Our province's highest court is to be commended for agreeing that the case be punted to it. As Appeal Court Justice Barbara Hamilton noted in her decision allowing the appeal, conflicting lower court decisions about police use of roadside- screening devices have left the law in a state of confusion. Some clarity about the use of devices employed daily on our streets is long past due. The case is factually unremarkable. In the early morning hours of Jan. 31, 2009, Rhys Mitchell was pulled over by police for driving without his headlights on. He was driving his car on a Winnipeg street with three passengers when stopped. The arresting officer's evidence was that Mitchell had " slightly glassy eyes" and that he detected the odour of alcohol in the car, but couldn't tie the smell directly to the driver. Mitchell admitted he'd earlier consumed two beers at a friend's house. The arresting officer conceded he didn't ask Mitchell when he'd started drinking, when he finished his last drink or even where the friend lived. Faced with the officer's demand, Mr. Mitchell blew into an " approved screening device" ( ASD) and the result was positive for consumption of alcohol. He later blew into a breathalyzer and failed the drive- over- 80 test. He was convicted at trial, but the conviction was overturned on appeal to the Court of Queen's Bench. The Crown appealed his acquittal to our top court. The legal issue before the court is whether the officer's roadside ASD demand of Mitchell was fairly made, and complied with, in accordance with the law. Canada's Criminal Code features a twostep process to curb impaired driving. The first step entails the roadside- screening test administered immediately after police stop a motor vehicle. A roadside test requires a driver provide a breath sample into an ASD. It doesn't measure impairment. It merely tests for the presence of alcohol. If the ASD detects any amount of booze, the second step, a breathalyzer test, kicks in. ASD confirmation of alcohol consumption gives police the reasonable and probable grounds to demand a breathalyzer test, usually performed later at a police station. But the Criminal Code doesn't just let police willy nilly stop people on the road to administer ASD tests. Police can only make a roadsidescreening demand when an officer has reasonable grounds to suspect a motorist has alcohol in his or her body. And just what constitutes reasonable grounds for that suspicion is at the heart of this unusual appeal. If the ASD reading wasn't lawfully taken, the subsequent breathalyzer results are tainted, and inadmissible as evidence against the accused. The outcome: no admissible breathalyzer results, no conviction for drive over 80. The threshold hurdle for police, therefore, is to make sure the roadside ASD demand meets the Code's reasonably based suspicion test. But that's a test lower courts haven't defined with any clarity or unanimity. If the Court of Appeal sets the evidentiary bar too high to enable police to readily make lawful roadside demands, it gives licence to those who drink and drive. If the court sets the bar too low, it risks sanctioning unwarranted intrusions on rights guaranteed by the Charter of Rights and Freedoms. The court has, rightly, taken upon itself the duty to fix a balance between intruding on rights and keeping the roads safe. It's high time for it to, as Justice Hamilton wrote, seize this opportunity " to provide at least some guidance to police, counsel and the courts." " A ND what is so rare a day in June?" wrote the poet James Russell Lowell. " Then, if ever, come perfect days." Except in Ottawa, where the fairest month is primarily a time to speculate about the entrails of power. Who's up, who's down and who's out in the cabinet shuffle expected before the fall session? This season, as in the past, Prime Minister Stephen Harper is holding his cards preternaturally close to his vest. He is expected, however, to put a new face on the government beginning in early August with a deputy minister shuffle, then continuing in late August or September at the ministerial level. Conservative insiders expect this remix will be substantial, as the government seeks to re- calibrate following a first year in majority during which it was repeatedly buffeted by controversy, ministerial missteps and scandal. Though the final roster will remain known only to the PM and perhaps his wife and chief of staff until shortly before it is unveiled, a few names recur. Top dogs: Jim Flaherty is not expected to budge from Finance, as he remains the mainstay of the Tories' economics team. Three other names top Conservatives' lists of senior ministers who've consistently outperformed and have earned their pick of jobs: Jason Kenney at Immigration, John Baird at Foreign Affairs and James Moore at Heritage. Any one of these three could be airlifted into Defence to clean house there. The drawback would be that each is helping the government appreciably now in a key portfolio. Kenney is two- thirds of the way through his overhaul of immigration. Baird is hitting his stride as a foreign minister, having spent the better part of the past year outgrowing his old attack- dog persona. Moore has managed to ride herd on the Canadian Broadcasting Corporation without a major upheaval - for a Conservative, a feat of ineffable dark magic. Rising stars: The acknowledged up- and- comers, in no particular order, are Chris Alexander, Ajax- Pickering; Michelle Rempel, Calgary- Centre- North; Candice Hoeppner, Portage- Lisgar; Kellie Leitch, Simcoe- Grey; and James Rajotte, Edmonton- Leduc. Rempel is bright, a good communicator and holds Jim Prentice's former seat. Leitch, a pediatric surgeon and frequent pinch- hitter in question period, holds the seat once held by Helena Guergis. Rajotte, respected in caucus and chairman of the Commons finance committee, has long been deemed a shoo- in for promotion, but has been held back by the preponderance of strong Alberta MPs, including the PM, already in cabinet. On the banana peel: Topping every Tory's hit list is International Co- operation Minister Bev Oda, who deeply embarrassed the government after it was reported she'd stayed at a high- end hotel in London, England, last year, at taxpayers' expense. Though Oda repaid more than $ 1,000 and apologized in the House of Commons, the taint of her $ 16 glass of orange juice and other lavish spending remains. Oda's defenders note she has long had a reputation as an effective manager. Virtually no one, however, expects her to survive this shuffle. Insiders point out that Alexander, a foreign policy expert and well- regarded former Canadian ambassador to Kabul, would be a tidy fit for Oda's job, not only because of his background but because his riding abuts hers in Durham, Ont., fulfilling the need for regional representation. As for Defence, here comes the broom. Both the minister, Peter MacKay, and the associate minister, Julian Fantino, are expected to move, while Chief of the Defence Staff Walter Natynczyk and deputy minister Robert Fonberg are believed to be considering retirement. Change at the top is deemed in Conservative circles to be both a managerial necessity and poetic justice, due to the disastrous, slow- bleed mess of the F- 35 jet fighter procurement. MacKay, still protected to some degree by his status as former leader of the old Progressive Conservatives, is expected to save face with a move to either Justice or Public Security. Fantino's prospects are less clear. He was brought in last year to ride herd on the generals and sort out procurement and that has gone spectacularly badly. And he is a weak performer in the House. Likeliest candidate for taking on the portfolio? Rob Nicholson at Justice managed to steer through controversial tough- on- crime legislation, Bill C- 10, while generally keeping out of trouble. Nicholson, insiders believe, may simply swap jobs with MacKay. Christian Paradis, the industry minister and putative Quebec lieutenant, is also a shoo- in for new digs. Setting aside the ethics allegations surrounding his office, he is said to be only minimally engaged in the workings of his department. The PM is in a pickle here as he has a pool of only five Quebec MPs from which to draw. Maxime Bernier is bright and long past the indignity of having forgotten secret briefs, or briefings, at a girlfriend's home four years ago. But he is deemed a wild card due to his strong libertarian views. The insider betting, therefore, is that Transport Minister Denis Lebel becomes senior Quebec minister and possibly takes on Industry. Last on the list of widely expected departures is Vic Toews. The public security minister torpedoed his own online- surveillance bill, C- 30, last fall by blurting that anyone opposed to the legislation was in league with child pornographers. The ensuing public backlash, with accompanying Tweeting of details of Toews's divorce by a Grit staffer, was among the ugliest episodes of the majority government's first year. Toews is said to be ready for a move home to the Prairies, where he eventually could be a candidate for a judicial appointment. His replacement, if it isn't Peter MacKay, might well be Hoeppner, also from Manitoba, and for years the spark plug in the government's drive to kill the long- gun registry. Unknowns: This leaves question marks over the heads of two important players - Tony Clement at Treasury Board and Rona Ambrose in Public Works. Clement is deemed by Tory insiders to have been winged, but not mortally wounded, by the saga of G- 20 infrastructure spending in his riding of Parry- Sound Muskoka. He is expected to remain in cabinet, perhaps making a lateral move. Ambrose, likewise, has been on the margins of the F- 35 imbroglio, but is not deemed to be wearing any of it personally. She remains one of the government's most credible communicators. Public Works is due for a change in top ministerial staff, sources say, but Ambrose herself is not expected to move, except perhaps laterally. Michael Den Tandt is a Postmedia News columnist. S OMETIMES it takes a good swift kick to open a person's eyes. That's the federal government's strategy in its " scared straight" campaign urging Canadians to butt out by forcing tobacco companies to adorn their addictive products with gruesome images showing the consequences of smoking. The graphic pictures include that of a human tongue rotting in the mouth of a person inflicted with mouth cancer. Other images portray cancer victims, literally human skeletons, at various stages of cancer with the Grim Reaper knocking at their back door. Another shows a man with a hole in his neck - a victim of throat cancer - through which he now breathes. His message on the smoke pack: " I wish I had never started smoking." It's a frank message that had to be brought home, and it's apparently working. Statistics Canada reported this week smoking rates have dropped dramatically in the last 10 years, with steep declines in the number of teen smokers. Ottawa credits, in part, its mandatory, graphic anti- smoking packaging for tobacco products. The new rules became official Tuesday. Tobacco companies must now label three- quarters of a cigarette package with grisly pictures showing the horrific consequences of smoking. The image of an emaciated, cancer- stricken Barb Tarbox, curled up in a fetal position in a hospital bed not long before her death, takes up threequarters of some of the packages. Tarbox became well- known as a powerful antismoking activist who, while inflicted with brain and lung cancers, gave numerous public appearances addressing younger people. The former model died in an Edmonton hospital in 2003, at the age of 42. " This ( graphic) initiative continues our efforts to inform Canadians - especially young people - about the hazards of smoking, said federal Health Minister Leona Aglukkaq. Cigarette packages also display a national " quitline" and website addresses that smokers can access for help in kicking the addiction. It's important to note nicotine is a for- real addiction, not a habit. It has been repeated countless times the addiction is more powerful than it is in the case of heroin. Statistics Canada reported that not only are fewer people smoking, many who do are smoking less. Last year, one in five Canadians aged 12 and over - 5.8 million people - smoke on an occasional or a daily basis, down from 25.9 per cent in 2001. For teens aged 15 to 17, the rate fell over the same period to 9.4 per cent from 20.8 per cent. For those aged 18 to 19, the rate dropped to one in five from one in three. Not only that, but exposure to second- hand smoke has been halved. Ottawa alone, however, can't take full credit for the encouraging statistics. Increased education programs across the country, some beginning at the school- age level, and tough laws imposing harsh restrictions on when and where people can smoke, have contributed greatly to this downward trend. Hopefully Ottawa's " scared straight" initiative has a long- term effect, and more and more smokers will be butting out for good. Roadside clarity is overdue Harper mulls cabinet shuffle MICHAEL DEN TANDT Gruesome images on cigarette packs seem to be working OTHER OPINION The Red Deer Advocate Vic Toews to retire? A_ 12_ Jun- 22- 12_ FP_ 01. indd A12 6/ 21/ 12 7: 05: 33 PM ;