Truck driver who had licence suspended over alleged breathalyzer refusal argues Manitoba law unconstitutional

A Manitoba truck driver whose licence was suspended after police said he refused to give a breathalyzer sample is challenging the provincial law that saw him temporarily barred from driving, arguing the review process set up by that law makes it unconstitutional.

Balwinder Bassi, a professional truck driver, was asked to blow into a breathalyzer device after being pulled over by police while driving in November 2022. 

He blew into it several times, but the device was unable to get a result. While police initially let him continue to try, they eventually decided Bassi — who was represented in court Thursday by MLA and lawyer Mark Wasyliw — "must be playing games" and charged him under Manitoba's Highway Traffic Act, Wasyliw told Court of King's Bench Justice Shauna McCarthy.

"He was begging him, according to the officer, for more opportunities to do the test, and wasn't able to," Wasyliw said, adding Bassi's first language is Punjabi and his English is poor. "There's no evidence the officer told him what he was doing wrong, or gave him corrective instructions."

Bassi later tried to plead his case at a hearing with Manitoba Public Insurance, where Wasyliw said the version of events as written in police notes was "uncritically" accepted as fact by the person conducting the hearing, "despite a live witness, who he can ask questions, disputing it."

Wasyliw acknowledged "there was some discussion about [Bassi] saying he didn't have anything to drink, and then an admission later that he did" — something the judge called "a pretty big credibility point."

But he said there was no explanation given by the person overseeing that hearing for why Bassi's version of events wasn't credible and "should be rejected in favour of unsworn police notes."

The lawyer said it's concerning that no one cross-examined police about their notes during the hearing, arguing the way the law is written doesn't give people the ability to properly defend themselves when accused of driving offences — violating legal rights guaranteed under the Canadian Charter of Rights and Freedoms.

"Mr. Bassi said he'd done nothing wrong. He attempted to defend himself, and the process was set up so he would fail, and he did not have a fair shake at clearing his name — and because of that, there was some horrible consequences," Wasyliw said.

"If you've said that you've done nothing wrong and you go to a hearing and … they go, 'Well, we've got a police report saying you did it, and so you must have did it,' that's wrong. We don't accept that in our courts, not in our culture, not in our system of justice."

Wasyliw said that law, which outlines the procedure for getting a suspension reviewed, needs to be "basically rewritten," because "every single Manitoban is getting a raw deal under this act."

"You've lost before you even began. You are marching uphill and you have no realistic chance of actually winning that hearing, because you will always lose to a piece of paper," Wasyliw said. "And that is larger than Mr. Bassi."

'No conflict' between MLA, lawyer roles: Wasyliw

Wasyliw, the MLA for Fort Garry who now sits as an independent, was a member of the governing NDP's caucus until September, when he was removed from the party's ranks.

The NDP initially said that decision was made because a colleague in Wasyliw's law practice was defending convicted sexual predator Peter Nygard in court.

That explanation was met with immediate backlash from legal groups across Canada, who said Premier Wab Kinew was attacking the important role defence lawyers play in ensuring everyone has the right to representation in court. Kinew later apologized, saying all he should have said publicly was that there were "irreconcilable differences" with Wasyliw.

Wasyliw was in court defending a Winnipeg police officer against an impaired driving charge the day after he was removed from caucus — timing a legal expert said may have allowed the government to dodge a potential conflict.

After court on Thursday, Wasyliw said he did not see any conflict between his role in the legislature and his job as a lawyer challenging provincial law.

"I'm not a government member. I have no control over the legislation that the government does," he said. "My roles are very separate and distinct. And so no, there's absolutely no conflict."

Crown attorney Michael Bodner argued Thursday there was "no merit" to Bassi's application, and said Wasyliw hadn't shown Bassi's Charter rights had been violated. 

He added while Wasyliw raised concerns about the inability to cross-examine police in hearings like Bassi's, "there is actually no evidence on this case to suggest" Bassi asked to do that during the MPI hearing, when he was represented by a different lawyer.

"I'm not suggesting it would be appropriate for MPI to allow for cross-examination, [but] that wasn't even requested," Bodner said. "Not everything needs to be a criminal trial. And the applicants do have the right to provide sworn evidence. Mr. Bassi chose not to."

Justice McCarthy reserved her decision until a later date.