FTA Lawyer

The point being, that the notwithstanding clause can only except a narrow range of constititional provisions -- it cannot be used to grant carte blanche powers to the government. I would hardly call it a narrow range...freedom of conscience, religion, thought, belief, opinion, expression, the press and other media, peaceful assembly, association, life, liberty and security of the person, freedom from unreasonable search and seizure, arbitrary detention or imprisonment, the right to be informed of reasons for arrest or detention, to retain and instruct counsel, and to have the validity of detention determined by habeas corpus, the right to be informed of charges against you, to a trial in a reasonable time, not to be compelled to testify against yourself, to the presumption of innocence, to a fair trial, to reasonable bail, to trial by jury if maximum of 5 years in jail, not to be convicted of something that is not an offence, not to be subjected to double jeopardy, to the benefit of a lesser punishment if the law is amended after conviction but before sentence, the right not to be subjected to cruel and unusual punishment, the right not to have incriminating evidence in one proceeding used against you in another, the right to an interpreter for proceedings if you do not understand the language of the proceedings, the right to equality before and under the law and equal protection and benefit of law. Technically, any of the above can lawfully be taken away for 5-year intervals by a government (Fed. or Prov.) including the "notwithstanding clause" in legislation. That being said, I am no expert on the jurisdiction of the ICJ, but it seems unlikely they would have no way of attempting to stop a tyrant from ruling Canada qua Hitler. Furthermore, how long do you really think it would take for Parliament Hill to be surrounded by soldiers from NATO, NORAD or just the plain ol' USofA to displace anyone who even attempted to use s. 33 this way? The OP is a rather silly (although technically possible) proposition. FTA

Well, if you are 100% loyal to Canada as Leader of the Opposition or PM, then isn't keeping your other citizenship an empty gesture? Here's a snip from the Post article I linked above: What say you to that?

There's a difference between being a school board trustee and the Opposition Leader or Prime Minister, No?

Wouldn't it be funny if he got elected prime minister, and he visited France, and they arrested him for dodging the draft and forced him into the army? Yes, I know France ended the draft a few years ago, but it points out just what expectations there are of citizens, regardless of where they live. Suppose we have a disagreement with France along the lines of the one the Brits had with Iceland over cod fishing, or the one we nearly had with the Spanish. Do we want a PM who is a citizen of the other side? If Dion is in the PM's office, does he put a flag of France behind the desk along with one of Canada? When he visits France does he shake hands with the President and say "I voted for you, sir!" Don't be silly. Dion has to renounce his citizenship. I tend to agree with this assessment. I take Argus' comments as being light-hearted in the sense that he doesn't expect Dion to start committing espionage on Parliament Hill in favour of France (i.e. this isn't an issue that should carry the kind of outrage that Ezra Levant would like it to) but, it remains a legitimate issue. Citizenship does by definition import certain rights and responsibilities. By moving up in public life to the position of leader of Her Majesty's Loyal Opposition, Dion does specifically take an oath of allegiance to Her Majesty the Queen in Right of Canada which is necessarily at odds with being a citizen of another country. Sometimes issues like this seem meaningless, but if taken down the proverbial "slippery slope" we see why we ought not to start bending the rules. If a dual citizen can be Opposition Leader, or even PM, then why not a non-citizen? Really, someone using the argument like Black Dog (that the colour of your passport does not determine your loyalty, therefore, dual citizenship matters not for someone governing the country) would have to logically accept then that a non-citizen can be 100% loyal to Canada, and therefore, should be permitted to be PM. Of course, then we'd have a PM who couldn't vote for PM and could be deported from the country...which would be rather hard to reconcile...wouldn't it? Should we then start amending all of the laws which have citizenship elements to them? My point, if I've now obscured it, is that citizenship is more than the colour of a passport...even if you don't see it as an expression of your loyalty...it has legal significance, and inextricable rights and responsibilities. You ought not be a Canadian government leader and maintain your non-Canadian citizenship. FTA P.S. - Just found this article, which does a much better job of conveying my point. National Post

Does anyone have anything to say about the topic of this thread?!?!?!?!?! Seriously...how the f_ck does Geoffrey second-guessing his initial concerns about Ed Stelmach being tough enough to stand up to Ottawa turn into a full-blown federal Liberal vs. Conservative policy bash-fest in under 10 posts!?!?!? How many times can people get entertainment / pleasure / satisfaction out of the repetition of: "Liberals really suck" "No way, Conservatives really suck" "Na-uh, Liberals really suck" "Oh, yeah, that'd be true if Conservatives didn't really suck" "Whatever you sucky Liberal" "Bite-me you sucky Conservative" Please, if the above dialogue amuses you, GO SOMEWHERE ELSE and knock youself out with your wit and insight into the ways of the world. Now that's off my chest... Geoffrey, I too am glad to see Stelmach coming out quickly with an indication of the approach he plans to take on Fed-AB relations. Personally, I voted for Dinning becuase I figured he would do the best job of protecting the financial health of the province from the insatiable force of Federal greed (at a time when much is being said about overall mismanagement of the books). I wasn't really sure what I thought about Stelmach winning...all I knew was (unlike you apparently) I was happy to see Morton was not at the helm...I mean, I like the idea of reforms but ususally with a view to improving our system, not rebuilding it from the dirt. Where do you predict we'll see the first true Stelmach vs. PM battle (I purposefully didn't say vs. Harper to account for the possibility that Stelmach could be facing down some other PM). FTA

Fair enough, more people getting lawyers for drunk driving charges rather than handling them on their own would make it appear that the problem was on the rise on my method of measurement. I guess we're both just giving our own personal perceptions...either could be right or wrong. Seems like no choice now but to try and find some stats re: arrests / charges... FTA

I agree. Let's pay them a decent wage, then take off food, accomodations, compensation for the victims (or families) etc... heck, I'll even be nice and give them a choice: The above OR $6.90 per day with free food & accomodation. Couldn't say it better. I'm all for giving them min. wage so long as they are expected to cover all of the same expenses that an average Joe working at McDonalds has to cover...if cost of living expenses aren't there, then there is absolutely no basis for min. wage to be paid. That all being said, if there truly has been no increase for 20 years, then I'd back an adjustment of some kind, even without any additional obligations for expenses. FTA

If drunk driving isn't nearly as big a problem as people make it out to be, why can I name 5 senior defence lawyers in the city of Calgary whose entire practices (95% or higher) are defending impaired driving charges and I was talking to one of them last Thursday and he surmised he could vacation for about 4 months before he'd have any concern about a drop in his business (that's how many new files he's been opening lately). In addition to those lawyers, every criminal defence lawyer has a fairly steady diet of impaired driving files...and I can certainly say that my personal experience suggests that impaired driving is on the rise, not the decline. The Student Legal Assistance program at the University of Calgary actually keeps stats on their file load (for grant purposes) and they are reporting steady increases in the percentage of impaired driving matters they are handling, to the point now that about half of ALL of their files (including civil and family matters) are impaired driving charges. In my opinion, it's a bigger problem than it has ever been. FTA

There is a rather lengthy quote, I believe is attributable to Oliver Wendell Holmes (but I can't spend any more time searching for it this morning...gotta pay some bills!) which I will paraphrase very loosely... Lady Justice carries two items...the scales which everyone remembers, but she also carries a sword. The scales represent the measured weighing of evidence which must be done to ensure justice is done...the sword represents the need to mete out harsh punishment for those who offend justice. Both items are equally necessary. The scales without the sword would be impotent and futile. The sword without the scales would be barbaric and inhumane. To me, this post is a simple manifestation of our current struggle with the interplay between the scales and the sword. I think rather than get too far off into biblical or pure philosophical musings, what those who feel the system is 'soft' really need to do is make their case for a greater role for the sword...but not allow the sword to be used to cut the chains on the scales. To go so far as to say we should abandon a centuries old concept of crime / punishment / justice and just revert to "an eye for an eye" seems to me a method of giving Lady Justice's arm a rest and having her put down the scales altogether. FTA

This is interesting. What ever happened to the presumption of innocence until proven guilty? The whole concept of being held on bail flies in its face. Forgive me when I say that your comment appears to come from way out in left field. What I've been trying to point out is that the default position for someone charged with a crime is that they will be released on bail. This must be the default in order to protect the value of the presumption of innocence. That being said, the state must be permitted a reasonable opportunity to prosecute alleged offences...and to do that, they must have jurisdiction over the individual. If the Crown can prove that there is a likelihood that the person will flee and not attend court (previous fail to appear convictions, previous breaches of probation or other court orders) then bail can properly be denied. Similarly, the public interest in not being subjected to further crimes by the same accused person must also be given reasonable consideration. If letting an accused out on bail is akin to creating another victim or will generate such disdain for the justice system as a whole then, again, bail can properly be denied. Your concern for the effects of denial of bail on the presumption of innocence are well-founded, but as with any right, the right to reasonable bail is a qualified one...there must always be a balance as between the rights of the individual and those of the society as a group. It is also worth pointing out that the Criminal Code provides for appeals of bail decisions, re-consideration of bail if the accused can demonstrate a "change in circumstances" from when they were ordered detained, and automatic bail reviews due to the passage of time to ensure that continued detention is not unjust. FTA

Whitedoors, Check back a few posts, I already said that reverse onus on bail has passed Charter scrutiny (for other scenarios) so it is not likely as contentious as some people here first thought. As for my example of waiting in jail 12 months for a 6 month sentence, I was just giving a general example of why the presumption of innocence is dependent on the default being a right to reasonable bail...I didn't mean to suggest that "serious gun offences" only attract such low sentences. Hydraboss, The seriousness of the charge is always a factor in any bail decision but charges are still just charges. If the Crown puts forward no evidence whatsoever as to identity of a shooter on a bail hearing, then that person should not be held in custody just because the charge is serious. In the normal test, if the Crown can demonstrate a likelihood that an accused person will fail to attend court, will commit another offence if released, or that the public interest cannot be protected whilst the person is on bail, then bail will be denied. Wilber, See my comment above re: the 6-month sentence example. Sorry if I caused confusion with the numbers I chose. FTA

Well, Bill Clinton didn't inhale. All kidding aside, new laws don't impress me, particularly on drunk driving. The politically easy thing to do is pass a law. If society were serious, the police would stop every fifth car leaving a parking lot or on-street parking adjacent to a liquor-serving establishment at a late hour, say, after 11:30 p.m. The problem is the tavern operators would scream bloody murder. Well I guess it's up to society to start telling people who aren't on board to start flying kites. If stopping every fifth car after leaving a bar at close is going to make a difference, society needs to step up and tell bar owners and other opponents to go **** themselves I'm gonna go out on a limb here and suggest that the anticipated uproar of tavern owners has relatively little to do with why such a proposal is not done when compared to the manpower issues. Seriously, do you know how many police officers this would take? FTA

Actually, if we want to talk about reality for a moment... When a guy is charged it is alleged that he has committed a crime. If the right to the presumption of innocence is to mean anything, then the default has to be pre-trial release...otherwise people get the punishment before it is ever proven that they are guilty. So, except for the reverse onus situations that already exist, bail IS a right (and in fact "reasonable bail" is the right...so forget about a US-style $100,000 bond) unless the Crown can show cause why that right should be denied. In many jurisdictions, it takes 8-12 months to get a trial in a provincial court. No bail for 12 months for a sentence carrying a 6 month jail term would be pretty outrageous. Now, before you answer something like "well they can just plead guilty then...who ever said there was a right to a trial", please refer to the full text of s. 11(d) which I have partially reproduced above. FTA

The real issues are that Canada is sliding further down the list of good places to live year after year. Our health-care is getting worse, education is getting worse, the gap between rich and poor is getting wider, 1 in 6 Canadian kids live below the poverty line, our infrastructure is deteriorating, our cities are are becoming less safe, more polluted, and quality of life is going down. Our environment is deteriorating, our population is aging and we are not prepared for massive numbers of seniors. Our governments are becoming less and less democratic, less and less responsive to the needs and the wishes of the people and more and more corrupt and unaccountable. Fewer and fewer voters exercise their right to vote and our voting system is 100 years behind the times. Those are the real issues. And so, we should come out full-bore in favour of the status-quo and against a proposed change in the way we conduct our current state of Federalism? By your own statement, the status quo means a continuous slide towards disaster...painful as it may be, we need some Constitutional reforms in this country...why do you think the issues keep coming back, over and over and over...because they are real systemic problems that need to be addressed. FTA

I hate to be a spoil-sport on this issue, but... First of all, the constitutionality of these bail measures is not nearly as contestable as some might think. We already have reverse-onus on bail for a number of situations which have proven to withstand Charter scrutiny. The seriousness of gun crimes will likely mean that any Charter violations resulting from reverse-onus bail will be upheld under s.1 as being reasonable limits that can be demonstrably justified in a free and democratic society. That being said, the above quote proves that for "nearly 40 per cent" of the people these "reforms" are targeted towards, they were already covered by various harsh procedures / punishments under the existing Criminal Code provisions, including a reverse-onus bail proceeding for anyone charged while on bail for another offence (per s. 515(6)). Anyone who is charged while on parole will be immediately put back in prison awaiting a parole revocation hearing (so even if they get a bail order on the new charges, they are still in jail). Anyone who is charged while on tempoarary absence or probation is in a bit of a different situation in that they are not automatically cancelled and put back in jail (as with a parolee), but on the bail hearing, they will have a huge strike against them on the normal test because they are now demonstrating that they cannot be trusted to follow conditions of bail should they be released. As I've argued a number of times on this board (as joined by a few others), the laws we have can be incredibly harsh as they exist on the books right now...simply using them they way they can be used is far preferable to passing amendments and reforms which have the potential of going too far due to the half-cooked knee-jerk manner in which they are put forward. The problem is that under-funded Crown prosecutors rarely bring applications forward because they don't have time and many judges fail to consider the need to act harshly on old sentences in the face of new charges. For example...if the going rate for an assault (given the circumstances of the offence and the offender) is a 12 month jail term, an offender who gets a Conditional Sentence Order (CSO) for this crime will often get a longer term, lets say 18 months (longer is justified as he is getting house arrest not actual jail). If this guy commits another offence while on the CSO, he should be charged with a CSO breach in addition to any other charges he gets. He is then required to appear before the same judge that put him on the CSO...to be punished for the breach. At this point, the law allows the judge to "collapse" the CSO and make the guy go to jail for the remaining portion of his sentence...with no earned remission meaning he will do each and every day that is left on the CSO. This is huge because normally a guy gets earned remission...so getting 12 months in actual jail will ususally mean serving 2/3 or 8 months. Whereas the guy who gets a break with an 18 month CSO...and then breaches after 6 months and gets thrown back in...he will serve the full 12 months of that remaining time. So the guy who doesn't straighten up after being given the opportunity to do so with a CSO can end up with a far worse fate than the guy who just got thrown behind bars from day 1. The problem, of course, is that guys rarely get their whole CSO collapsed for a breach. In fact, often times the judge will elect to simply return the guy to the CSO for an initial minor breach. A similar situation exists for probation breaches. 99.9% of the time, if a guy breaches his probation order, the Crown will just lay a new charge of breach of probation and prosecute that...leading often to a fine or similar minor punishment (because many probation breaches are not objectively serious conduct...like failing to report or failing to complete counselling). What everyone forgets is that a probation order is a form of rehabilitative sentence (a break) where it appears that a person can be brought back into line without more serious punishment. As such, if a person breaches their probation (and demonstrates that they maybe ought not to have been given the break) the Criminal Code allows for the Crown to not only lay a new charge of breach of probation, but after getting a conviction for the breach, the Crown can also bring the person back to the original judge so they can be re-sentenced on the original offence (because obviously probation was not harsh enough to send the message). This re-sentencing on an original offence when a guy breaches probation is vritually NEVER done...but not because it can't...it's just too difficult for the Crown to do with their current workload and available resources. FTA

I voted to give them more sympathy and money as a disingenuous response to a disingenuous poll...but I'm just being a bit cranky on a Monday... As to your musing that gang membersip could be made an imprisonable offence... Criminal Code s. 467.11 Criminal Code s. 467.12 Criminal Code s. 467.13 Your poll could have the option "just use the laws we already have" but that would require the public and politicians to put the money not only where their mouths are, but where it would matter...into more police, more prosecutors, more judges, more legal aid. If we properly funded our justice system we would be far more efficient, see far less cases being tossed out due to the failures of the prosecution team and be far less likely to do injustice through wrongful convictions or through plea bargains where no plea bargain should be entertained. Just today, I was supposed to be in a trial all day...booked in April...everyone shows up ready to go but the court-ordered interpreter was somehow administratively cancelled...no one can explain why. So, the Arabic-speaking complainant can't testify so the matter is adjourned to another full day in July 2007. The offence date was in October 2005. We wasted an entire day of court time (including judge, clerk, facility) for no good reason...and since this happens all the time, the next available date is in July. All of which means that there is now a decent chance that all charges will be tossed out because it is now taking the Crown 20 months to bring the matter to trial when the normal acceptable standard is supposed to be somewhere between 8 - 12 months. Sorry for the side-track rant about a non-gang case, but it is indicitive of why you are beside yourself and posing the original question in the first place. FTA

You take me too seriously...my tongue was firmly lodged in my cheek when I suggested a stop in the drive-thru as a no-no. Just being colorful and witty...more fun than saying "waiting for a tow truck to come haul the car to the impound lot for 15 minutes is a no-no". As for you being a pot and me a black kettle...you chastise me for my "inflamatory remark" (which I really don't think was inflamatory per above) and then immediately thereafter tell me that in court all I do is try to win instead of seek the truth!?!?! How could that sentence possibly do anything to "enhance the quality of the conversation here"? Sigh... FTA

You don't have to be as hammered as I suggested...I was just doing a bit of overkill on my example. Remember, to ask you to blow on the roadside device, the officer only needs reasonable suspicion that you have alcohol in your system...he doesn't have to think you are impaired at all. So, if you admit you've just had one beer...or if you deny drinking but the officer can smell alcohol on your breath, he can do the roadside test. If you fail that test and the officer satisfies him or herself that he has reasonable grounds that you are impaired, then it's off to the actual breathalyser. And I have to say you are bang-on when it comes to the notes regarding sign of impairment. I've only seen one case where the accused didn't have every one of smell of alcohol, glassy eyes, slurring of speech and unsteadiness on feet...awfully coincidental. On the RIDE program for license, registration and insurance...I haven't really seen something just like that in Alberta where everyone gets pulled over...but again, since the driver of every car that doesn't have all documents up to date is by necessity committing an offence, I think that's why the courts would allow such a mass inspection. FTA

Wow...I really thought I had put the misconceptions to bed with the last post. Seriously, sideshow, I can't write every possible nuance and arcane legality regarding impaired driving on this board...I am trying to write so the general process is understood. If you really want to butt heads with me over the technicalities of the law of impaired driving I will win...I do this for a living. When other lawyers lose impaired driving cases at trial, they refer the clients to me to evaluate the appeal to the Court of Appeal. I have even had referrals from lawyers who have been practicing criminal law for 30 years. And when you say that it is ludicrous that the right to counsel is provided at the station...where do you suggest it is provided?!?!? And why do I get phone calls at all hours of the night on our office cell phone from people in custody at the police station charged with impaired driving? Why is our office phone number on a list (known as the Brydges list after an SCC case by that name) along with a whole bunch of other lawyers numbers who take after-hours calls and why is that list posted on the wall in every police station in the Calgary area (in the room where the accuseds get put for privacy to contact their lawyer). Anyway...yes, the Charter kicks in when arrested...which is exactly what I said: Where you are now making your error is the difference between reading the right to counsel (the 'informational component' of s. 10() and actually providing the reasonable opportunity (the 'implementational component' of s. 10(). You are absolutely right that defence lawyers will srcutinize whether the officer read the rights as soon as practicable and we will also scrutinize the reasonableness of any delay in providing access to a lawyer...but you again have a misinformed view of what the law actually says about these issues. The 2007 annotated Criminal Code that I use cites a 1988 SCC case called Strachan (yes, this issue has been settled for the better part of 2 decades)...here's the annotation: I can say with confidence that if a guy is arrested on a country road which by normal travel is 20 minutes away from the nearest breathalyser if he is taken to that location and put in front of a phone to call a lawyer within 30 minutes there is no way a court will consider that to be a violation. If however, the cop goes through the drive-thru for a coffee and the accused gets his lawyer call 45 minutes from when he is arrested, that's no good. As to the officer's obligations to provide the reasonable opportunity to contact a lawyer, here's what the actual state of the law is from an SCC case called Prosper: As to your last point, I can tell you that the vast majority of police cars in Alberta are equipped with roadside screening devices and the officers are trained to administer them (really, if you can operate your tv remote, you can administer a roadside test). FTA

Thank you for trying to become informed rather than just arguing on what your sister told you or the anecdote of "this guy I know" who totally cheated a jail sentence by chewing a big wad of minty-fresh Chiclets... See, the problem with much of what is being argued here is that those doing the arguing don't really know anything about the process...which is good mind you, because I am glad to know that everyone hasn't been through it. Here's how it goes...(with of course minor variations from province to province)... Police can lawfully do random stops to check for license, registration, and insurance. Not having these things up to date any time you are on the road is an offence so they always have the ability to check these items for any car that's on the road. Police can also do random stops to check for impaired drivers but it has to be part of an organized Checkstop-type program. The case law on this is pretty old and I'd have to research it again to be 100% sure, but my recollection is the courts found that random stops for this purpose are technically unlawful, but are excusable as part of an program to quell the horrors of drunk driving (saved by s. 1 of the constitution). Of course, we all know that everytime an officer stops you to check your documentation, they are also going to ask you if you've had anything to drink. If you have (even one) or if you deny but booze is on your breath, you can now be investigated for possible impaired driving anyway. Now, on the issue of right to counsel and impaired driving, what must fundamentally be understood is the difference between an "approved screening device" administered at roadside and an "approved instrument" a.k.a. the breathalyser machine administered in a police stattion or Checkstop bus. Much of the actual details are in s. 254 of the Criminal Code. s. 254 You DO NOT have any right to counsel at roadside. If a police officer "reasonably suspects" that you have any alcohol in your system, then he is lawfully placed to demand that you blow on the roadside screening device (where you get a red, yellow or green light). If you try for a call to a lawyer at this point you will be flatly refused and if you don't give the blow, you get charged with a refusal. The result of the roadside device cannot be used to prove that you are impaired or over .08...it can only be used by the officer to bolster his grounds for believing that you are in fact impaired. Much like the results of a field sobriety test (which are never done in Alberta...I can't say for certain in other provinces...but arguably you can refuse to do one and why would a cop want to bother when he can compel you to blow into his little roadside machine?) If after observing your behavior / smell / appearance (and possibly doing a roadside test) an officer has reasonable and probable grounds to believe that you are impaired, he can demand that you accompany him to the actual breathalyser to provide samples which will give readings of your blood alcohol content (BAC). If it's more than .08 you are charged with both impaired and over .08. At this point (on the way from your car to the officer's or to the bus) the officer has formed his grounds to believe that you have committed an offence, and therefore, he has arrested you for impaired driving. Since you are now under arrest, you now have a Charter right to "retain and instruct counsel without delay" so as to get some immediate summary legal advice about the type of sh-t you are in, what you are obligated to do by law, and what you should not let the police try to do (i.e. go beyond their lawful authority). So sorry, sideshow, right to counsel at this point is completely cut and dry. You are not on a highway with no phone. You are in a police station or a Checkstop bus (which trust me, have beautifully appointed private telephone booths in them to accommodate the string of accuseds being processed). You don't "need the sample" because the officer is already drawing up the impaired driving charge based on his observations of you and the result from the breathalyser virtually will always now only determine if you will be given a second charge...being over .08. I can't count how many times a guy is able to get the breathalyser evidence tossed out on a Charter breach only to then get convicted on the impaired charge because the officer describes in great detail how he fell out of his car, fumbled with and dropped his license, puked on the curb and fell in it etc. and it is clear he is impaired with or without any readings. Anyway, the bottom line on my comments regarding the lawyer calls is that as a society, we have taken the position that it is more important to give people a reasonable opportunity to get legal advice before having to provide a bodily sample to the state than it is to let the state seize such a sample to get evidence to use to charge you with a second criminal offence (keeping in mind that by the time they read you the breath demand they already have everything they need to charge you with impaired driving). Hope this clears some things up. FTA

This is so stupid it cannot even be comprehended. This is nothing like the "Holiday Tree"...this is blatantly ignoring historical fact in an effort to tell a historical story in a way that makes others feel more included?!?!?! Guess what, crosses "marked their place" and nothing will change that fact. The poem is historically accurate, and how else do you display what you learned when reading "In Flander's Fields" (one of the most famous Canadian literary works ever) than to depict poppies, rows of crosses, perhaps a lark, some guns below, and a torch being thrown. Seriously, when we start modifying not only our study of history, but the actual history itself to appease minorities and / or special interest groups we really have hit a point where Canada is now a nation beholden to Seinfeld...in our ridiculous effort to be about everything for everyone, we have managed to become about nothing. FTA

For housekeeping purposes, I agree with you that the Criminal Code section against anal sex until 18 [s. 159] should be formally repealed, but the fact of the matter is that it was declared unconstitutional in 1995 by the Ontario Court of Appeal, and in 1998 by the Quebec Court of Appeal, and I highly doubt you can come up with one instance of a charge being laid (no pun intended) under s. 159 since then. FTA

blueblood, If arrested for impaired driving you are read a breath demand where you are required to forthwith accompany the officer and provide two suitable samples of your breath for analysis. If you refuse to comply with this demand, you are charged with refusal which carries the same punishment as being convicted of over .08. Prior to being made to decide between complying with giving up a bodily sample (to the state to be used to incriminate you) or refusing, you are entitled to a reasonable opportunity to obtain legal advice. This means the officer giving you Legal Aid numbers, a phone book and privacy to make your calls. You have absolutely no right to wait for your lawyer to attend and be present while you blow. If you know people that used this delay to get off, then I reiterate my original point...that's officer incompetence. It is also worth noting that almost invariably, the advice that a lawyer will give to someone who makes that late-night call before going to the breathalyser is "blow". It is illegal to counsel on offence (eg. refusal to blow in the face of a valid demand) so unless the lawyer can determine the demand to be unlawful in a few minutes over the phone (which is incredibly rare) he or she must advise the suspect to comply and give the samples. And I don't think all officers are corrupt...far from it. If you find the post on this site regarding "do you trust the police" you will note that I voted yes and gave my reasons. sideshow, First off, I didn't attribute "crooked" to you and I confirm that it was my adjective used simply as a generalized expression of public sentiment when charges are thrown out. I appreciate your comments respecting all of the different integral role-players in our system. Also, I want to be clear that I am not suggesting police are responsible every time a charge gets thrown out...that would be just as offensive as what I'm complaining about...the fact that most people want to blame defence lawyers 100% of the time for getting their client off on a "technicality". However, I do stand by my position that, for impaired driving charges, if the charge is thrown out due to the accused not being given the opportunity to contact a lawyer before the breathalyser this is 100% police responsibility. There's no one else whose obligation it has been for 25 years now to make sure this step is done. It's really quite simple. mcqueen625 It's not the Charter "as I call it"...that's what it is called. The actual constitution says that the Canadian Charter of Rights and Freedoms may be referred to as the Charter...I didn't just make it up on my own. Your comments as to the validity of the Charter or to the powers it affords to judges may be worthy, but are probably best left to another thread. As to lawyers, yet again, being the source of all Canada's problems (although you apparently do let us share the fault with accountant's and MBA's) I guess my previous posts stand for themselves...you can take and do with them what you please. But for the record, I don't think I'm better than anyone else nor do I think that all of my colleagues who have passed the bar are automatically smart and ethical. Ironically, you have done exactly what I criticized in another recent post which is make a bold assertion, without substance, that the Charter 'conveys more rights to the criminals than it ever does to their victims". I have many times argued on this board that s. 1 of the Charter is a built-in avenue for breaching the other sections of the Charter in the interests of society. To the extent that the general public shares your sentiments the failure is not in the document, but in governments failing to pass laws which favour collective rights over those of the individual in a manner that is able to pass the s. 1 analysis. The Oakes decision in the SCC in 1986 represents a very early post-Charter decision which specifically shows governments how to lawfully curtail an individual's Charter rights. If accused people are getting such the upper hand that you suggest they are, then instead of just trashing lawyers, why not lobby / vote for politicians who propose to actually legislate a new level playing field? And of course, if such legislation is so important to Canadians, then even if it can't pass s. 1, the government could get some courage and conviction and actually use the notwithstanding clause...after all, that's what it is there for. FTA

Just to be clear, Germans appear to have nothing to do with this...other than the country's laws apparently assert jurisdiction and the civil rights groups must feel that Germany is the most likely place to allow the charges to proceed. Actually, what's sad about this is that a New York based group and a Paris based group figured that in order to get a fair civil rights hearing they had to file in Germany. This will be an interesting one to follow. FTA

jbg, I was admittedly too bold in suggesting that the exclusionary doctrine in the US was absolute...as with most "rules" there are exceptions. To be more accurate, the difference with Canada's rule under the Charter is that there is no presumption of exclusion due to a breach, with various applicable exceptions to the presumption. Instead, our test is one where we balance from the outset the rights of the individual accused with those of society as a whole in determining what would be more fair...admissibility or exclusion. I am, however, a bit confused about your comments regarding intellectual honesty and admitting that these protections basically don't exist...have I simply misunderstood? FTA