FTA Lawyer

I've been the linesman for some ex-NHL'er heavyweight fights in a senior men's league in Alberta. When two guys like this square off, you wait until they are too tired to lift their arms...otherwise you get your ass kicked by an errant hay-maker! In my opinion, post #20 answers it all...hockey fights as we're discussing them are part of the North American marketing scheme...not truly an inherent part of the game. I personally have no problem with fighting...I did plenty of it when I played...but I followed the honor code that has been spoken of in other posts. My opponent always knew he was going to be my opponent (ie no jumping from behind), I almost always agreed with my opponent that we'd both remove our helmets first, if my opponent went down (too tired or hurt) then the fight was over, and I never once did a dance or a motion to the crowd after winning a fight...just skated off the ice. For the most part, I got the same courtesy in return. I can truly say that even in the rare bench-brawls that we got into, nothing came out of a hockey fight in my career that was as bad as the incidents of hitting from behind or cross-checking or highsticking to the face etc. that happened on a fairly regular basis. FTA

I do not support what this guy said, but before this story broke I never knew he existed. I am certainly not prepared to define a man I know nothing about entirely on the basis of a mistake he made 16 years ago. That would be the true definition of intolerance if you ask me. I grew up in small-town Alberta, come from a red-neck farming family and played in a rough junior hockey league up to age 21. I've said some absolutely revolting things about other groups that I would now have a tough time actually admitting that I said them. My mother would be devastated to know some of the things that have come out of my mouth in the past. If someone produced a tape of me in one of my most shameful moments, I would have a tough time convincing people who didn't know me that the words of times past are not who I am today. But that wouldn't mean I am a homophobic racist bigot just because I might once have said some things a homophobic racist bigot might say. That all being said, I'm not sure that an elected official has the luxury of just saying "I wish I could take those words back..." I'm not convinced he needs to resign or be booted from his party post, but I'd like to see something more than just a predictable apology. FTA

Not dirty at all actually, when one assumes that the police have reasonable and probable grounds (note to guyser, we don't call it probable cause, but it basically means the same thing) to belive the person has committed or is about to commit an offence or the person has been caught committing an offence, then he can be arrested without warrant (Criminal Code s. 495...also applies to Provincial Offences). No problem keeping the person under arrest while you then use those same reasonable and probable grounds to get a warrant to search the car, because s. 495 also allows the police to keep someone under arrest for the purposes of determining his identity, securing and preserving evidence of the offence, and preventing the repetition of the offence or the commiting of a further offence. If police grounds are not enough for an arrest under the Criminal Code (as would be the normal case in a typical traffic stop) then they can still hold a person under investigative detention, but for limited duration and if they don't have reasonable grounds in short order, then they have to let the person go. Pretty much if the cop is giving a speeding ticket, he's got as long as it takes to write the ticket. If no grounds at that point, there will be no arrest, no search warrant, should be no search and the citizen is entitled as of right to be sent on his way. Anyone who wants an interesting read on the SCC take on these issues, click below. R. v. Mann I think this is my favorite paragraph (mostly because it supports what I've been arguing here... FTA

Maybe the evidence will be admissible in spite of the breach...maybe not. You seem to keep ignoring the point that it is a breach of our constitution and therefore illegal conduct by the police regardless of the decision that the judge makes at trial regarding admissibility. So, if the police choose to act illegally, then why should judges and defence lawyers take the heat when the evidence that they unlawfully collect is ruled inadmissible? FTA

Not only did no-one witness it, but now apparently we are finding out that the military altered reports that would suggest the dead guy (i.e. not Khadr) threw the grenade. Military Coverup? Now all of a sudden my complaints about an accused person being denied due process, imprisoned without a trial, and denied access to habeas corpus applications don't seem so crazy. FTA

In Canada the police can seize money or property that they believe is the proceeds of crime...half a million hidden in a transport truck with a driver who says he has no idea where it came from would usually qualify without much more. If you are the lawful owner of property that has been seized in this manner, the Criminal Code provides a procedure whereby you must give sworn evidence proving your lawful ownership and then it will be returned. As far as the police keeping it...strictly speaking they don't. The property is held by the Crown. In order to have the property formally forfeited to the Crown, a hearing must also take place so that a judge will make the final determination. I suspect that most US states have a similar procedure, but I really wouldn't know. FTA

I agree with basically everything that you have just said here...for many situations that the police will be called upon to address in the "heat of the moment." For this specific situation though, there was no exigent circumstance, the accused was already detained and there was no reason not to take the time to get the warrant...not to mention that there was no need for the police to try to interpret an ambiguous rule. They knew they needed a warrant and intentionally conducted an illegal search, or they didn't know the law regarding vehicle searches and were incompetent to do their jobs. Either way, I support the exclusion of the evidence here and am disappointed that so many do not seem to share my views on an individual's right to be free from unlawful state search and seizure. FTA

I don't think that I will ever fight a particular issue as strongly as many would-be martyrs of social disobedience, so my comments are admittedly to be taken in that context. However, it seems to me that after I saw this guy on national television shouting from the mountain-tops about how defiant he was of the US justice system and that he would rot in US prison for the rest of his life to show how right his beliefs and cause really are, his last minute sell-out shows that he's willing to play the game right up until where he's actually got to pay the price. This is called folding your tent, your cards, taking your ball and going home, whatever cliche you want to use to describe a guy who will disappear from everyone's conscience because he bailed. There's no such thing as a famous almost-martyr. Mr. Emery might want to take a lesson or two from people like Henry Morgentaler, Grant Krieger, Sue Rodriguez and yes, Richard Latimer. Rightly or wrongly, they followed through with their convictions (for want of a better term). FTA

You should be careful what you wish for...you may get an absolute rule that all evidence, no matter what it is, and no matter what the situation, gets tossed following a warrantless vehicle search. In any event, I need to clarify myself I suppose. The fixed standard in these circumstances is the fact of a charter breach. Maybe benefit of the doubt is owed to police in a new situation or one that is unsettled in law. As for searching a car beyond plain view without a warrant, every cop knows he or she is acting unlawfully. The only uncertainty is in whether the courts might still let the evidence in notwithstanding that it was obtained illegally. So the way I see it, the uncertainty in this analysis favors the state because they can get a judge to ignore their breach of the law depending on the circumstances. What your take on this is, is that police should knowingly breach the Charter, and take their chances...because their job is simply providing public safety. My take is the reverse. I for one think the police should always follow the law...even though it means that they are acting at a disadvantage to those who don't have to follow the rules (i.e. criminals). The alternative is nobody follows the rules...on either side...and I don't like that idea one bit. Ask societies whose police do not follow the laws of the land if they have "public saftey" in the way I think you would like to define it... FTA

Nice try to change the subject when there is no answer to support your side. Are there other areas of legal uncertainty for police doing their jobs? Yes, I can readily concede that. Does that mean they can ignore the absolutely clear legal obligations they have? Sorry, won't let you have that one. Different case, different issue...my argument stays the same...don't search a car beyond plain view without a warrant. FTA

Fixed Standard #1 - Don't search a car beyond what you can see in plain view without a warrant. Every time the police breach this fixed standard, it will not be my fault or the judge's fault or the prosecutor's fault when the evidence is excluded. FTA

I wrote about this issue a while back...particularly comparing the disparity in penalties depending on whether the animal is classified as "cattle" or not. Animal Cruelty Laws Too Soft? I hadn't previously noted that training an animal to fight would not be criminal in spite of the fact that merely being present at an animal fight can be. However, there is no reason that I can see that cases of neglect would be difficult to prosecute given the following specific prohibition: FTA

The balancing of disrepute only happens after the state has violated the Charter. There is a sure fire way to never get into the precarious position of possibly having your evidence tossed...follow the law. One would think that following the law would be a basic part of a police officer's daily routine. You are being obtuse about the pre-Charter lack of police brutality...you of course know full well that we had British Common Law and I rather suspect that you also know that there were many common law rules that resulted in exclusion of evidence in exactly the same way that the Charter operates today. In fact, the SCC has recently ruled that the common law right to remain silent is more expansive and more protective of a suspect being interrogated than the corresponding s. 7 Charter right to silence. So much for your theory that the Charter is responsible for crooks getting off on technicalities... Common Law Confessions Rule The SCC has also been very clear to rule time and time again that the Charter did not grant rights to the citizenry...rather it recognized rights that already existed and elevated those rights by constitutionalizing them (therefore making it much more difficult for any ruling government to take them away by the passing of a mere statute). The Charter certainly is the focus of much litigation in criminal cases, but I completely disagree that it is a cash cow in any way. Do you really think that pre-1982 defence lawyers didn't vigorously argue all available legal issues on behalf of their clients? Of course they did. The job of the police is to protect public safety by upholding the law. That you think a police officer should conduct a search that he believes would not be judicially authorized (i.e. ask for forgiveness rather than lawful permission) is about the most warped concept of justice I have ever seen. What you are saying is that the police should pick and choose which laws they will abide by based on their own personal view of what is right for society. A police officer who does this is no different than any criminal who makes personal choices about the laws he will respect, and the ones he will break. And for all of you who think that "if you don't commit crime and have nothing to hide, the police won't ever interfere with your life" do some searching into the Calgary Police Service and a deplorable botched warrant execution at the home of a law-abiding family with small children: Why we can't let police break the law... I particularly like the part about the officer altering his notes by adding grounds for the search AFTER they executed the warrant and realized the outrageous mistake they made.. Why do I have a problem with police breaching citizens rights to be free from unreasonable searches?!?!?!? FTA

Ahh yes, I think it's section 45 or so...the right to be free from restriction in the pursuit of dirt-bag-dom. Working honest people are subjected to inappropriate state interference in their lives everyday...the Charter protects all of them too...we just only get to read in the newspaper about the people charged with criminal offences...honest hardworking folk are just not interesting enough. Of course there are plenty of dirty lawyers...but I'm not advocating that we feel sorry for them and condone their behaviour when they choose to break the law...why should we do that for dirty cops? FTA

Having most of your party intentionally no-show so that you prop up a government that you say has no business governing is about as pathetic as it gets. Then you try to say it's just because the people don't want an election right now...isn't that another way of saying that the present government is worthy of governing? At least Her Majesty's unofficial opposition parties are standing in opposition. I fully agree with the title of the thread...either support and work with the government or do your job and topple it. Every day that passes where you do neither is one more scoop out of the gaping hole where you used to store your pride and credibility. FTA

The Charter is the cause of increased severity and prevalence of crime? I'd love to see the controlled study that could make that link... A warrant would be obtained to search the entire car on the basis of reasonable grounds to believe that such a search would produce evidence of a particular crime. Once you have the warrant for the car search away. So long as you are reasonably conducting the search that your warrant authorizes, then you are free to find whatever you can find. You have still never answered the question of why a police officer, knowing that thousands of cases say he needs a warrant to search a car, should be felt sorry for when he ignores the law searches without warrant and then the evidence is tossed out. See, it's easy to point a finger at the defence lawyer or the "liberal" judge, but the person who is truly responsible for getting the bad guy off is the bozo cop who was too lazy to comply with the law in the first place. FTA

This isn't 1930's Germany because we have democracy, common law and a constitution, and defence lawyers who argue unpopular positions to ensure that you don't have to attempt such arguments from the inside of a jail cell. You don't really want to turn this into a www search for every dirty cop story we can find do you? Most police officers are good people...most of them care when they breach someone's rights and then try to learn from their mistakes...for those that are corrupt and don't care and are as bad as many criminals they purport to be saving us from, we have defence lawyers. Every time I stop a police officer from breaking the law I'm a dirt-bag. Every time a police officer breaks the law, he or she is a victim of a bad justice system...go figure. FTA

You have way too much blind faith in the good faith of the police. The very case that started this thread is a cop pretending to search for alcohol in places where it is physically impossible for alcohol to have been. To me, that's searching for no damn good reason. Apparently, you have never been searched by police in the street. Face down on the pavement with cuffs on is pretty normal. The hypothetical "upstanding pillar of the community" will have no problem with that, even if done arbitrarily and without reasonable grounds? Come on jbg...you can't be serious. Since when have Americans become so limp against tyrannical behaviour? I have a uniform and a gun on so I can detain and search you without any cause and you're okay with that? In the name of letting cops charge people if they luck out and find something illegal? Wow. And Americans mock Canadians for being too polite! FTA

But this example of yours is the whole bloody point!!! Stop a car for speeding, decades (and really, I'm not making that up) of case law tells the cop that he can look into the car and take note of anything that can be seen in plain sight (your open container of liquor). That motorist is now going to get both the speeding ticket and the open liquor ticket. The "look farther" part is where you don't seem to get it. What is the cop looking farther for? He has no lawful authority to do a complete search of the car! Thousands of cases all say the same thing...without a warrant, the cop CAN'T SEARCH BEYOND WHAT HE SEES IN PLAIN SIGHT...to do so is an illegal search. If you have reasonable grounds to believe that a further search is required, then you explain those reasonable grounds to a justice and that person will either grant you or deny you a warrant. Just because cops want to unlawfully invade citizens privacy and search their wallets, cellphones, glove boxes etc. and just because you don't seem to have any problem with them doing that, doesn't mean they can. The whole balance of exclusion vs. admissibility is done in the remedy section of the Charter...that is, if you don't want to find yourself facing the balancing because you think it is too subjective THEN DON't BREACH THE PERSON'S RIGHTS and the balancing act never comes into play. Get a warrant, get the evidence, no breach, no balancing, no "technicality" defence. It really is that simple. FTA

So, on this board Ezra Levant is a venerable hero for strictly exercising his right to free expression and demanding that the state take no step whatsoever to infringe upon that right, but I am a loony, leftist lawyer for advocating a strict exercise of my right to be free from unreasonable search and seizure by that very same state? I ought to welcome unlawful searches of my car and person so long as I am free to bitch about it later in a newspaper? Because I willingly pay taxes I should willingly let police detain and search me? I am truly astonished at how few people seem to give a shit about their right to be free from armed state officials intruding on their personal privacy. I cannot think of any circumstance where I would consent to an armed state officer searching anything of mine. If they have grounds to get a warrant, then they can search pursuant to that authority. If not, they can kindly get away from me. Why when the law could not be any more clear that the police cannot search a car because they see open booze in it, should we excuse the illegal conduct of the police when it accidentally produces evidence of a crime? The ends do not justify the means. I've tried to answer before that it does matter what evidence is found as a result of the Charter breach because the final part of the test is a balance of whether exclusion or admissibility would bring the greater disrepute to justice. So, the severed head in the bag might be allowed in where the piece of crack would be excluded. I just can't see what is so damned difficult about getting a warrant when faced with circumstances that decades of case law tells you that you need a warrant. Surely the police realize that when a judge tosses out evidence for failure to get a warrant that the judge is telling them to get a warrant next time right? The car search issue has been resolved a thousand times over in the exact same way...BUT THE POLICE KEEP SEARCHING WHOLE CARS WITHOUT WARRANTS!!!!! And then they sit back in awe and amazement when their evidence gets tossed? Wow, who could've seen that coming? Get a warrant next time. Get a warrant next time. Get a warrant next time. Get a warrant next time. Get a warrant next time. There, with any luck, 5 police officers will get a warrant next time. I've done my part. FTA

Here's the thing...there's more than a decade of case-law out there which unequivocally tells cops that they can't search a car beyond what they see in plain view without first getting a warrant. Items in an opaque bag in a concealed console compartment are not in plain view...pretty damn simple. Warrants can easily be obtained by telephone. Wouldn't even need a telewarrant here because the car was perfectly ripe for being impounded so a lawful search could be conducted at a later time. Before cops give up, why don't they first try following the law. DON'T SEARCH A CAR WITHOUT A WARRANT!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!! Look, the only reason why these cases bother people is they invariably arise in drug trafficking scenarios...and it looks bad if a drug trafficker gets a break. But, proper police conduct affects ALL of us. I don't traffick drugs, but have in the past made the error of having open alcohol in the back seat of my car. If the cop that stopped me then had searched all of the private compartments of my car, I'd have been pissed off...and I would have had every right to be...because in Canada, we don't let police oppress our citizens. FTA

The RCMP need to investigate this I'm afraid...with transparency for public oversight (which itself may just be a pipe-dream). There are a number of problems I have with this whole story...from both sides. Firstly, everyone needs to get over the hang up about the actuarial soundness of the "insurance policy". If this offer of "insurance" was made, and that's a big if as far as I'm concerned, I'm pretty sure the "underwriter" was going to be the Conservative Party of Canada. Come on people, lawyers self-insure, most governments self-insure, many major corporations self-insure for certain risks. Bottom line is if the CPC had a million bucks in the bank, they could just pay it to him...they don't need to actually venture out into the ultra-highly regulated insurance industry to make this promise. Calling it an "insurance policy" would just be euphamistic. But here's the problem with this whole allegation...if Chuck Cadman was furious that his integrity would be insulted with such an offer, and his integrity was beyond reproach to the extent that he would honorably reject a million dollars being given to his wife and kids, then why would he lie to the country on national television and say no such offer was made? How does that make sense? Why not trumpet his righteous indignation then? Next, why do so many people assume that the only way for the story to be false is if the wife is lying? She could just be wrong. After all, it is clear that she was not a witness to any such meeting or offer. At best, the story in the book is triple hearsay (and fabulous for sales and royalties for the author) reduced to double hearsay if the wife continues to stand by it. Here's the big trouble for Harper though...he appears to have known about the meeting and some type of offer, and that such offer was being made in the context of addressing financial concerns of the then-dying Cadman. I'm not sure what others will think, but to me, the biggest troublesome quote for Harper is this one: Here's the relevant Criminal Code section: Criminal Code s. 119 In my opinion, when the consequence of an MP's vote is dissolution of Parliament, and therefore, financial consequences to him, preventing him from voting to prop up the government by offering to "replace the financial considerations he might lose due to an election" is a blatant offer of valuable consideration in respect of his official capacity. My opinion does not change for the better for Harper if the offer was only for an uncontested nomination in the next election...to me that is a blatant offer of an office or employment in respect of Cadman's official capacity. I am bright enough to know that we don't yet know everything about this whole issue, but there absolutely needs to be a full RCMP investigation...because there are a number of versions of what happened here (some of which I'm apparently hearing in Harper's own taped words) which would squarely fit within the Criminal Code definition of bribery. FTA

I don't understand electronic fuel injection...f--king mechanics. I can't comprehend circuitry diagrams...f--king electricians. I don't read blueprints...f--king architects. I can't do advanced calculus...f--cking engineers. etc. Anyway, back yet again to the topic (if we can possibly satiate the need to bash lawyers) looks like poor ranting Ezra may lose his soapbox: Globe and Mail - Why Complaint Withdrawn It's kind of hard to paint this guy as a radical muslim extremist when he pulls his complaint due to having come to appreciate the debate over the true mandate of Human Rts. Tribunals and acknowledging the Canadian democratic right to free speech. For his part, Levant is desperately clinging to whatever media coverage he can by threatening to sue for "abuse of process"...wait a minute, who was it that posted a routine interview on You Tube and made as much of a media circus as possible? Calling the public servant a "thug"? begging for the proceeding to not be dismissed? And now he's going to sue for the thousands of dollars he HAD to spend dealing with this complaint? I know which one of the two of these characters I'm more scared of right now... FTA

Well, I keep being confusing because I'm crossing the two terms "principled" and "practical". If we were truly principled 100% of the time, then it would not matter at all. If drugs should be excluded because of a serious breach of the law by police entering a home then so should anything else. In fact, the quote I pulled from the Alberta case says exactly that...don't let the seriousness of what you find operate to excuse what the police did wrong. What I am saying is, the "principles" and they way they are applied will very likely become more "practical" when a judge is faced with the possibility of a dead body being excluded from evidence as opposed to mere pot plants. Hopefully I have cleared up my point on that. On the "leeway" shown to police...you are right there is no hard and fast rule...it is more of an unwritten respect for the job that they have to do. If an officer searches a car before the warrant actually is signed...that's technically illegal. Under section 24 of the Charter, the results of such a search will almost certainly be allowed...because the warrant was in fact signed and no true harm falls to the accused. The leeway comes in where the judges in my experience will go out of their way to say that they find no bad faith on the part of the police and that they thank them for their good job (as opposed to reading them the riot act over a simple mistake). FTA

I don't envy police officers for a second. They have a mostly thankless job and are always under intense scrutiny...especially through 20/20 hindsight in later court proceedings. However, regardless of what your police buddy might tell you, police get a considerable amount of leeway in court. Most judges are mindful of not making rulings that "handcuff" the cops...for want of a better term. That said, a group of machine-gun toting men, wearing ski-masks, all dressed in black (with no identifiable police insignia) storming into a drug house and not being able to produce a warrant may give them the element of surprise, but in every other way drastically increases the risk that they will be shot by the resident. Think about it...you're at home and you get a loud authoritative knock and "Police open the door". You look out and see police uniforms and badges. You comply. The officers advise you they are there to search the home. You ask for the warrant and they give it to you. You comply. Other scenario...the group I described above comes crashing through your door and tells everyone including your mentally challenged kid to get on the fucking ground (I'm not making this up by the way...this is a current pending case one of my colleagues has in Calgary). You comply because of the working end of a sub-machine gun and then when you can't see a police uniform or badge and the guys have ski-masks and you ask for a warrant and they don't have one... I'd be expecting to get executed by the apparent armed robbers and I'd make a play for one of their guns and take as many out as possible trying to protect my family. If I was a cop...I would want to avoid this scenario. As to the pot versus the body...they are both considered real non-conscriptive evidence...and the fact is that most drug cases see the drugs remain in evidence in spite of the Charter breaches for that very reason. What I meant to imply was that practically speaking, it is alot easier for a judge to take a principled stand which results in some dope being tossed out than for a body. Many call it disingenuous or results-oriented reasoning, but losing the body as evidence is going to be extremely rare. FTA