rights violated during vehicle search

[FTA Lawyer]

Look farther as in for more booze maybe. You still haven't answered the question, if he had reason to believe there were more illegal items in the vehicle whether he would have to get a warrant for each one? Why a body or a bomb could pass "the test is a balance of whether exclusion or admissibility would bring the greater disrepute to justice" but a couple of kilos of cocaine doesn't. In my opinion the whole damn concept brings great disrepute to justice.

We didn't even have a Charter of Rights untill 1982 and I don't recall seeing or hearing tales of rampant police brutality before then. Before the Charter a cop went to work with a 38 Special and a night stick. Now he goes to work with a 9mm semi automatic, CS spray, possibly a tazer, a baton on his person plus a shot gun and assault rifle in is car. You don't really think it is totaly coincidence do you? Hell, in Britain which doesn't have a Charter like ours, the cops don't even carry firearms except for special circumstances. How uncivilized.

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

[sideshow]

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Edited March 18, 2008 by sideshow

[sideshow]

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Edited March 18, 2008 by sideshow

[FTA Lawyer]

lol..you miss the point. the law itself (the charter) is a charter for dirtbags. why should working honest people pay for dirtbags to have all these "rights"? if you dont want to get arrested, dont sell crack. simple isnt it?

as for www searches, lots of dirty lawyers out there. especially the ones helping the dirtbags. but once again, i understand your love of the charter.......its an endless trough.

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

[sideshow]

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Edited March 18, 2008 by sideshow

[guyser]

lol...i understand, i just dont agree. the filth that are the ones that are exercising these rights are the same that shouldnt have them. a right should be something that we are entitled to....because its a basic need. we let these people breed, steal, etc. and provide them with rights?

We dont provide them with rights , we dont "let them" have rights, any and all citizens of this country have them , you are born with inalienable rights.

Criminals "lose" some rights when they are charged and convicted of crimes.

I am suprised no one brought up the dismissal of charges against an alleged pedophile in Newmarket court yesterday. Seems the chat room where the cop was surfing is considered private like a telephone call would be. Since one needs a warrant to tape a phone call, the judge felt that the chat room was a private session between two people and the cop should have gone for a warrant. There has been an appeal.

If the law agrees that a chat room is equal to a phone call then good job. I dont think I agree it is though.

[Wilber]

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...

Logic and observation, certainly no more bizarre than a rational that determines the admissibility of evidence on a fuzzy notion of what constitutes the greater disrepute to justice.

Interestingly, Australia has been debating on whether stick with the old British system or go with a Canadian style charter for some time. So far they have opted to take a pass on the charter idea. Wonder why. So far during my trips to OZ, I haven't been able to find a jack booted storm trooper with his foot firmly planted on a citizens neck. Odd.

You still haven't explained how we managed to avoid being a police state with rampant police brutality and disregard for rights during the 115 years we were a country without a Charter of Rights.

Be honest, whether it was intended or not, the Charter has been the biggest cash cow in the legal industry's history.

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.

You say that warrants are easy to get over the phone. I wonder. If it is so easy, why do the police fail to get them? The police know their judges. They know who is likely to give them a warrant and who isn't. Dilemma, is it worse not to ask and search or be refused a warrant and still search. What do you think? I think maybe it is not as simple as you would make out and if the officer is certain there is something not kosher and the warrant is refused, what then? He walks away knowing there has been crime committed? Leave that nonsense to the courts. Their job is public safety, not pandering to the court system. They should do their job first and take their chances in court.

FTA. The police can only arrest people and present evidence. It's your bunch who determines the rules they must abide by. It's your bunch who determines its own rules for its own conduct. It's your bunch who decides the fate of these people, whether the sheep are protected from a predator or the predator is let loose among the sheep on grounds that have nothing to do with the fact a crime has been committed. The Charter is what it is. It is your bunch who have created the minefield around it, through which all of us must now navigate. Give me one reason why you and your bunch shouldn't be subject to the same scrutiny and criticism the police endure every day.

[guyser]

You say that warrants are easy to get over the phone. I wonder. If it is so easy, why do the police fail to get them?

Ask the cop that didnt get one why he didnt bother and someone walked?

Dilemma, is it worse not to ask and search or be refused a warrant and still search. What do you think? I think maybe it is not as simple as you would make out and if the officer is certain there is something not kosher and the warrant is refused, what then? He walks away knowing there has been crime committed? Leave that nonsense to the courts. Their job is public safety, not pandering to the court system. They should do their job first and take their chances in court.

The cops job includes upholding the law. It is against the law to search without PC or permission. If a cop is refused the warrant and then goes ahead, he should be fired from his job. Better yet, since it would seem the cop knows better, perhaps the cop should become a judge.

[blueblood]

From reading this, it appears that the law in Canada is very finicky and full of loopholes that both sides can exploit.

For example, in my younger days I used to work security at some events. There is a problem of people sneaking stuff in. Legally you can't up and frisk them at the door. To my understanding, I would ask them if I could search them, if they say no, they don't get into the event and I don't get in trouble.

Lesson from the anecdote, the cops have to dot their I's and cross their T's when searching.

But if they find something, the case shouldn't get thrown out, the cop should instead catch major crap and be punished.

Edited March 5, 2008 by blueblood

[Wilber]

Ask the cop that didnt get one why he didnt bother and someone walked?

The cops job includes upholding the law. It is against the law to search without PC or permission. If a cop is refused the warrant and then goes ahead, he should be fired from his job. Better yet, since it would seem the cop knows better, perhaps the cop should become a judge.

It is obviously not against the law or they would be charged with breaking the law. If a cop is refused a warrant and then goes ahead, perhaps he should be disciplined. That is why he might not take a chance on being refused if he thought the situation was serious enough. In that respect the cop must become a judge of what the situation requires. If the courts disagree, so be it but they are just as accountable for the end result. Just saying it is the cops fault a crook went free is bullshit. He arrested the guy, it was the court's decision to turn him loose, pure and simple. If you fired a cop every time evidence was disallowed on a so called Charter violation, pretty soon you would have no cops or people who wanted to be a cop. But that might suit you.

[guyser]

It is obviously not against the law or they would be charged with breaking the law. If a cop is refused a warrant and then goes ahead, perhaps he should be disciplined. That is why he might not take a chance on being refused if he thought the situation was serious enough. In that respect the cop must become a judge of what the situation requires. If the courts disagree, so be it but they are just as accountable for the end result. Just saying it is the cops fault a crook went free is bullshit. He arrested the guy, it was the court's decision to turn him loose, pure and simple. If you fired a cop every time evidence was disallowed on a so called Charter violation, pretty soon you would have no cops or people who wanted to be a cop. But that might suit you.

Cops rarely get charged with anything. The thin blue line makes sure of that.

Many times, not all, the cop is at fault for someone walking on a charge. The cop knows his job, knows the rights we all possess, and if he decides not to follow the rules then the only conclusion is he is at fault. We see this time and tme again.

It would not suit me, and in fact I suspect most think I am anti-cop. I am not . I have to deal with them on issues quite a bit. I was in court last month assisting a cop on a traffic stop.

But I will say far too many of them dont get the discipline they should.

[sideshow]

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Edited March 18, 2008 by sideshow

[Wilber]

But if they find something, the case shouldn't get thrown out, the cop should instead catch major crap and be punished.

Good excuse never to look for anything if you ask me. Is that what you want?

[blueblood]

Good excuse never to look for anything if you ask me. Is that what you want?

It's the same logic as if you never did anything wrong you don't have anything to hide. This brings accountability and gives a much better excuse to do a better job. That is a problem with appointed people in gov't jobs, they can screw up and the chances of getting canned are small. In a private outfit, you screw up and its can time. Judges, civil servants, etc. should be able to get in trouble even be fired.

[blueblood]

Cops rarely get charged with anything. The thin blue line makes sure of that.

Many times, not all, the cop is at fault for someone walking on a charge. The cop knows his job, knows the rights we all possess, and if he decides not to follow the rules then the only conclusion is he is at fault. We see this time and tme again.

It would not suit me, and in fact I suspect most think I am anti-cop. I am not . I have to deal with them on issues quite a bit. I was in court last month assisting a cop on a traffic stop.

But I will say far too many of them dont get the discipline they should.

This guy got in supreme shit

From CBC News:

A British Columbia Mountie who had sex on the job and used his uniform to draw dates will have to resign, an RCMP adjudication board decided Wednesday.

RCMP Const. Trent Richards admitted to having sex with women on at least 15 occasions while on duty at the rural detachment in Shawnigan Lake, B.C., on Vancouver Island.

Richards, 34, posted his profile on internet dating sites offering "sex with a hot cop" and posted a photo of himself in his red serge dress uniform on one site.

RCMP accused Richards of using force computers to pursue his extra-curricular activities.

Richards has been suspended with pay since January 2007.

The adjudication board decided Richards must resign within two weeks or be dismissed for "repeated on-duty sexual activity, as well as repeated misuse of RCMP information technology."

He has 14 days to appeal the decision to the RCMP commissioner.

The force declined to comment on the case until the appeal period has lapsed.

[Wilber]

It's the same logic as if you never did anything wrong you don't have anything to hide. This brings accountability and gives a much better excuse to do a better job. That is a problem with appointed people in gov't jobs, they can screw up and the chances of getting canned are small. In a private outfit, you screw up and its can time. Judges, civil servants, etc. should be able to get in trouble even be fired.

Not it's not, these are your words.

From reading this, it appears that the law in Canada is very finicky and full of loopholes that both sides can exploit.

If this is the case why would anyone voluntarily hang their ass out to dry banking on what a judge may or may not do?

I can understand the approach you took when you were in security. It was not your job to enforce the law, just make where you were working more secure for the patrons. It also didn't put you at unnecessary risk. The duty of the police is to protect the public. All of the public, all of the time, not just those in particular locations and at particular events. That is why they give them guns.

[FTA Lawyer]

Logic and observation, certainly no more bizarre than a rational that determines the admissibility of evidence on a fuzzy notion of what constitutes the greater disrepute to justice.

Interestingly, Australia has been debating on whether stick with the old British system or go with a Canadian style charter for some time. So far they have opted to take a pass on the charter idea. Wonder why. So far during my trips to OZ, I haven't been able to find a jack booted storm trooper with his foot firmly planted on a citizens neck. Odd.

You still haven't explained how we managed to avoid being a police state with rampant police brutality and disregard for rights during the 115 years we were a country without a Charter of Rights.

Be honest, whether it was intended or not, the Charter has been the biggest cash cow in the legal industry's history.

You say that warrants are easy to get over the phone. I wonder. If it is so easy, why do the police fail to get them? The police know their judges. They know who is likely to give them a warrant and who isn't. Dilemma, is it worse not to ask and search or be refused a warrant and still search. What do you think? I think maybe it is not as simple as you would make out and if the officer is certain there is something not kosher and the warrant is refused, what then? He walks away knowing there has been crime committed? Leave that nonsense to the courts. Their job is public safety, not pandering to the court system. They should do their job first and take their chances in court.

FTA. The police can only arrest people and present evidence. It's your bunch who determines the rules they must abide by. It's your bunch who determines its own rules for its own conduct. It's your bunch who decides the fate of these people, whether the sheep are protected from a predator or the predator is let loose among the sheep on grounds that have nothing to do with the fact a crime has been committed. The Charter is what it is. It is your bunch who have created the minefield around it, through which all of us must now navigate. Give me one reason why you and your bunch shouldn't be subject to the same scrutiny and criticism the police endure every day.

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

[Wilber]

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.

As I said before, it was so cut and dried why do appeals courts keep overturning decisions on this issue. Judges can't even agree. The real problem is the minefield created around the Charter. Even judges aren't immune from stepping on them.

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.

Basically, same answer as above.

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.

I don't think the police should have a free reign. I also don't think that they never make mistakes or never exceed their authority. They do have to judge what is necessary at the time. You may wish to disregard the fact a crime has taken place on grounds a police officer has exceeded his authority but the last thing we want for our police is to encourage them to ignore criminal activity when it is taking place. You can analyze it to death after the fact and then call them "dumb" or "lazy" at you leisure but they don't have that luxury. If a police officer commits a crime, charge him, don't just sit there and yap about him being a criminal. No doubt you expect the same for your clients.

[Wilber]

Double post

Edited March 6, 2008 by Wilber

[jbg]

Logic and observation, certainly no more bizarre than a rational that determines the admissibility of evidence on a fuzzy notion of what constitutes the greater disrepute to justice.

In theory, in the US we don't balance. If evidence seizure is illegal it doesn't come in.

The problem is that this rigid "exclusionary rule" is so palpably unworkable that loopholes such as "spontaneous" waiver by criminals have reduced the standard to what yours seems to be.

[Wilber]

In theory, in the US we don't balance. If evidence seizure is illegal it doesn't come in.

The problem is that this rigid "exclusionary rule" is so palpably unworkable that loopholes such as "spontaneous" waiver by criminals have reduced the standard to what yours seems to be.

Exactly, such a system is unworkable. This is why I think it is unfair to automatically point the finger at the police when these things occur. If there can be no fixed standard in order to have a workable system, you can't just always say, oh it wouldn't have happened if the police had just done their job. The courts must be held accountable for their judgment every bit as much as the police for theirs.

[FTA Lawyer]

Exactly, such a system is unworkable. This is why I think it is unfair to automatically point the finger at the police when these things occur. If there can be no fixed standard in order to have a workable system, you can't just always say, oh it wouldn't have happened if the police had just done their job. The courts must be held accountable for their judgment every bit as much as the police for theirs.

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

[Wilber]

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

How about the fixed standard that recently had a charge tossed when a judge decided the police didn't give an occupant enough time to open a door before they exercised a warrant?

[FTA Lawyer]

How about the fixed standard that recently had a charge tossed when a judge decided the police didn't give an occupant enough time to open a door before they exercised a warrant?

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

[Wilber]

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

Actually it is the same issue, the admissibility of evidence. You said it yourself, that something like a body might be admissible whereas something else may not depending on whether a judge feels it meets the test of yada yada. If there is no itemized list for everyone to see of what would be admissible and what wouldn't, there is no fixed standard.

I realize that judges must make subjective decisions when it comes to the law. If they didn't, we wouldn't need them. I also think the public has the right and duty to take them to task if they feel their judge's actions don't reflect the publics standards. Around here, whenever a judge brings down a sentence that goes some way to reflect those standards and comes within howitzer range of a maximum, invariably they are slapped down and told they don't reflect the will of Parliament or precedent. Who's law is it anyway? Parliaments? The judiciaries? I thought it belonged to the people.

With the possible exception of God, everyone needs periodic reminders that maybe they aren't quite as good as they think they are.