Upcoming Constitutional Challenge to the Street Racing Legislation

[Keepitsimple]

A speeding ticket is a summons (to court) where the court has previously determined a set fine as an option to appearing in court. When you sign the ticket and take the fine option, you are pleading guilty and short-cutting the court process by your own choice.

The determination that over 50 = racing is an arbitrary decision by a police officer who then seizes you vehicle, impounds it and then issues a summons to appear without offering you any choices. The unreasonable seizure of your vehicle infringes on your charter right to be offered due process under the law and penalizes regardless if you are guilty, regardless if you admit guilt and regardless if you are convicted. The police have a very specific role in exercising justice however, determining guilt and issuing penalties at their discretion is not one of those roles. Only the court can determine guilt and issue punishment. And it is in everyone's constitutional rights to be protected from arbitrary punishment and seizure by the police.

And no, not always if you are going 50 over the limit will you be subject to a hefty fine. That will happen only if you are convicted and there are lots of reasons why people don't get convicted of many criminal offenses. That is why the court is there to make that determination.

Would you consider it arbitrary punishment and seizure when someone's car is seized and impounded for 24 hours when they are stopped for impaired driving? They can choose not to take a breathyliser but they still have their car taken away and they have to pay for the impoundment and towing. In my opinion, this is just another example of allowing the police officer reasonable discretion to protect the public.....otherwise, the impaired driver could continue on and as too often happens - kill someone. Similarly, the street racer, if not effectively contained, could continue on and wreak havoc. Our provincial parliament....supported by MPP's who represent the people, have determined that such a law is for the greater public good and is a reasonable interpretation of the intent of the Charter.....and that is what any court challenge will have to take into account.

Edited November 15, 2008 by Keepitsimple

[charter.rights]

Would you consider it arbitrary punishment and seizure when someone's car is seized and impounded for 24 hours when they are stopped for impaired driving? They can choose not to take a breathyliser but they still have their car taken away and they have to pay for the impoundment and towing. In my opinion, this is just another example of allowing the police officer reasonable discretion to protect the public.....otherwise, the impaired driver could continue on and as too often happens - kill someone. Similarly, the street racer, if not effectively contained, could continue on and wreak havoc. Our provincial parliament....supported by MPP's who represent the people, have determined that such a law is for the greater public good and is a reasonable interpretation of the intent of the Charter.....and that is what any court challenge will have to take into account.

It is a different situation since the Court has also prescribed that there is a level of 0.08 parts per million that determines who is legally drunk and if the person is drunk then they in that state they could be a risk to the public if they were allowed to drive. If the suspect is tested and found to be less than the legal limit then the he and his car are allowed to go back onto the street. The choice to refuse a breathalyzer carries with it a penalty prescribed by law and is only applicable IF the suspect is convicted in a court of law. Same thing goes with the penalty for impaired driving - it is only (and can only be) determined in Court AFTER the determination of guilt is made.

In the case of someone going 50 over the limit there is no measure to determine "intent to race" simply by going fast. And not all speeders are a risk to the public once they are ticketed. In good weather on a straight highway with little traffic, a driver is usually in good control of his or her vehicle at speeds well above the speed limit. So if this same driver is doing 150 in a 100 how could that be considered "racing"?

And that's the point. The police are not using the law as it was intended to target street racers who risk lives. They are using it as a convenience to pull anyone and everyone over doing 50kms over the limit, call them "racers" and then convicting and penalizing them by taking their vehicles for 7 days. It is illegal and unconstitutional.

BTW in case you haven't noticed before that the enforcement of the Charter MUST come before the application of all law regardless of the perceived crime. MP's never considered the Charter when the law was prescribed. The never do. If they did they wouldn;t have created this law in the first place since their position is and always will be that it is up to the defendant to prove that his rights are being infringed. However, under Charter law the onus is on the law-makers to proved it doesn't BEFORE they prescribe such imposing law.

[Keepitsimple]

BTW in case you haven't noticed before that the enforcement of the Charter MUST come before the application of all law regardless of the perceived crime. MP's never considered the Charter when the law was prescribed. The never do. If they did they wouldn;t have created this law in the first place since their position is and always will be that it is up to the defendant to prove that his rights are being infringed. However, under Charter law the onus is on the law-makers to proved it doesn't BEFORE they prescribe such imposing law.

Charter Rights are not as clear cut as you make them out to be. The point is whether the Street Racing law is a reasonable limitation on a person's right or freedom. I am not aware of cases where police officers are abusing their discretionary powers and seizing property willy-nilly as you and others have implied. If there is such abuse, the courts would likely come down hard on the officers and I'm sure some lawyer will gladly launch a highly visible lawsuit.

The Charter protects several rights and freedoms

The Charter of Rights and Freedoms is part of Canada’s Constitution. If a court or other tribunal decides that a law, or part of a law, violates the Charter, that law is not valid – unless the Canadian Parliament or a provincial legislature can justify the Charter violation, under section 1, as a “reasonable limitation” on the person’s right or freedom. If the law cannot be justified as a “reasonable limitation” on the right or freedom, the law can still be valid – if Parliament or a provincial legislature overrides the Charter and says that the law operates in spite of the Charter (refer to script 230 for details of the “notwithstanding clause”). However, Parliament has never used its power to override the Charter. The Charter also governs the actions of state officials, such as the police. You can see both the Constitution and the Charter on the Canadian government website at http://laws.justice.gc.ca/en.

Legal Rights in the Charter

Sections 7 to 14 of the Charter guarantee everyone certain legal rights. Some of these rights require every person accused of a crime to be treated in a just and fair manner. And some of these rights existed long before the Charter. But they are now in the Constitution.

But these rights are not absolute. As the first paragraph explains, governments can limit these rights under section 1 of the Charter – if the limits are reasonable in a free and democratic society. Apart from these possible limits, the Charter protects the following rights. The Legal Rights described in the Charter most often apply in criminal cases, but they can also apply in other cases as well – for example, if you worked for a government agency and your employer attempted to search you before you left the premises after completing your shift. Only Parliament can pass criminal laws.

Link: http://www.cba.org/BC/public_media/rights/200.aspx

Edited November 15, 2008 by Keepitsimple

[charter.rights]

Charter Rights are not as clear cut as you make them out to be. The point is whether the Street Racing law is a reasonable limitation on a person's right or freedom. I am not aware of cases where police officers are abusing their discretionary powers and seizing property willy-nilly as you and others have implied. If there is such abuse, the courts would likely come down hard on the officers and I'm sure some lawyer will gladly launch a highly visible lawsuit.

Link: http://www.cba.org/BC/public_media/rights/200.aspx

Parliament has never used the "notwithstanding clause" and never will to remove rights. It would only be reasonably used where one right conflicts with another. It can't be used as a convenience to over-ride a charter right.

Charter Rights are subject to interpretation by the courts, it is true. However, rights can only be "balanced" between other competing rights under the Charter. They cannot remove or diminish a right in order to satisfy a law.

The burden of proof lies with the police. They must prove "intent" to race in order to apply the racing law and obtain a conviction. However, stripping someone of their privilege to drive their car for 7 days without demonstrating that the public's charter right to security is being violated by allowing them to drive does nothing except violate the suspect''s right to justice before the courts. That is unconstitutional, period. Not only that but many of the charges never make it to court because the Crown drops them and in essence the punishment has been meted out without the defendant being able to be tried in a fair trial.

"If there is such abuse, the courts would likely come down hard on the officers and I'm sure some lawyer will gladly launch a highly visible lawsuit".

Of course that is what this thread is about. gullyfourmyle is launching the case to challenge the law and the OPP's application. The racing law is unconstitutional because "intent" cannot be proven in the simplistic way that the police are applying the law.

[Keepitsimple]

Parliament has never used the "notwithstanding clause" and never will to remove rights. It would only be reasonably used where one right conflicts with another. It can't be used as a convenience to over-ride a charter right.

Charter Rights are subject to interpretation by the courts, it is true. However, rights can only be "balanced" between other competing rights under the Charter. They cannot remove or diminish a right in order to satisfy a law.

The burden of proof lies with the police. They must prove "intent" to race in order to apply the racing law and obtain a conviction. However, stripping someone of their privilege to drive their car for 7 days without demonstrating that the public's charter right to security is being violated by allowing them to drive does nothing except violate the suspect''s right to justice before the courts. That is unconstitutional, period. Not only that but many of the charges never make it to court because the Crown drops them and in essence the punishment has been meted out without the defendant being able to be tried in a fair trial.

"If there is such abuse, the courts would likely come down hard on the officers and I'm sure some lawyer will gladly launch a highly visible lawsuit".

Of course that is what this thread is about. gullyfourmyle is launching the case to challenge the law and the OPP's application. The racing law is unconstitutional because "intent" cannot be proven in the simplistic way that the police are applying the law.

Then good luck to gullyfourmyle.

[lawmen]

Would you consider it arbitrary punishment and seizure when someone's car is seized and impounded for 24 hours when they are stopped for impaired driving?

They can choose not to take a breathyliser but they still have their car taken away and they have to pay for the impoundment and towing.

Yes.

The police cannot not seize your car for impaired if you've produced valid ID.

Impaired operation or care and control, or refusing to blow, are dual procedure offences. A cop cannot arrest under a dual procedure offence when valid ID is produced. The cop can only issue a notice to appear.

The cops arrest almost every time, though, because they haven't a clue of what they are doing.

The cop can remove the car if a sober driver is not available to drive the car. In such a case, the cop can only order the driver to have the vehicle towed to a location of the driver's choice at the drives expense if the car is not in a safe spot at the time of being stopped.

The cop cannot seize the car nor can he allow a third party, i.e., a towing company to place a lien on your property. That's both theft and fraud.

If the driver refused to have it towed to a safe location, then, and only then can a cop order it to be towed.

Edited November 17, 2008 by lawmen

[Smallc]

The police cannot not seize your car for impaired if you've produced valid ID.

Perhaps we're living in a different world. I know someone who had this happen. They had to pay to get it out.

[lawmen]

Can you post a law that allows cops to seize your vehicle when valid ID is produced?

[lawmen]

Offences under ss. 253 and 254 are punishable under s. 255. Section 255 articulates that the person may be prosecuted by indictment “OR” for which he is punishable on summary conviction offences.

Section 253-4 are dual procedure offences.

Therefore the cop cannot at anytime arrest an accused under ss. 253 or 254 because the cop is barred from arresting without a warrant any offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction, as articulated under 495(2)(.

The cop can only issue an appearance notice under s. 496(.

Sections 255, 495 and 496 expressly state:

Punishment

255. (1) “Every one” who commits an offence under section “253 or 254″ is guilty of an “indictable offence or an offence punishable on summary conviction” and is liable,

(a) whether the offence is prosecuted by indictment or punishable on summary conviction, to the following minimum punishment, namely,

(i) for a first offence, to a fine of not less than $1,000,

(ii) for a second offence, to imprisonment for not less than 30 days, and

(iii) for each subsequent offence, to imprisonment for not less than 120 days;

( where the offence is prosecuted by indictment, to imprisonment for a term not exceeding five years; and

© if the offence is punishable on summary conviction, to imprisonment for a term of not more than 18 months.

Arrest without warrant by peace officer

495. (1) A peace officer may arrest without warrant

(a) a person who has committed an indictable offence or who, on reasonable grounds, he believes has committed or is about to commit an indictable offence;

( a person whom he finds committing a criminal offence; or

…

“Limitation”

(2) A peace officer “shall not” arrest a person without warrant for

…

(“an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction,” or

…

Issue of appearance notice by peace officer

496. Where, by virtue of subsection “495(2),” a peace officer does not arrest a person, “he may issue an appearance notice to the person if the offence is”

…

( “an offence for which the person may be prosecuted by indictment or for which he is punishable on summary conviction;” or

…

Sections, 255(2), (2.1), (2.2), (3), (3.1) and (3.2), (impaired causing bodily harm or death) are single procedure indictable offences and an accused can be arrested without a warrant.

There is a distinction between 253-4 and 255(2), (2.1), (2.2), (3), (3.1) and (3.2).

Section 495(3) and ( provides the consequences of arresting without warrant.

The cop will be deemed to be acting lawfully and in the execution of his duty for the purposes of any proceeding … “unless” … in any such proceedings it is alleged and established by the person making the allegation that the peace officer did not comply with the requirements of subsection “(2).”

An accused who is arrested simply has to prove he provided proper ID, point out that s. 255 declares ss. 253 or 254 to be dual procedure offences, and he meet the test set out in s. 495(3)(.

“ALL” charges will be dropped and the cop, police service board, chief of police, solicitor general, city, and province can be sued by the accused. The cop would be facing criminal charges of his own if the accused pursued them. Now his finances are at stake and so is his employment.

I am aware of s. 497; however, if someone refuses to blow, the cop is not preventing the continuation or repetition of his refusal to blow by arresting him. A refusal to blow is final. Therefore, he still cannot arrest him; he can only issue him an appearance notice.

If a driver blows and is charged under s. 253, the cop is not preventing the continuation or repetition of the offence by arresting him. The offence has already ended. Therefore, he cannot arrest him; he can only issue an appearance notice.

The cop is not securing or preserving evidence of or relating to the offence by arresting him, thus the cop cannot arrest.

The cop is not ensuring the safety and security of any victim of or witness to the offence by arresting, nor does it ensure the accused will attend court in order to be dealt with according to law.

The driver must not be arrested if ID is provided. After being issued an appearance notice, the cop must inform him that if he gets back in his car or any other car and drives, he will be arrested without a warrant to prevent the continuation or repetition of the offence and be charged for a second time under ss. 253 or 254.

This arrest would be valid, despite ss. 253 and 254 being a dual procedure offence.

Thus, if the car isn’t already parked in a safe place, or if a sober driver is not availble to drive the car, the cop must inform the driver that a tow trunk can be called at driver expense. The car would also be towed to a location of the driver choice, the cops cannot send it to an impound lot and have a third party place a lien on the driver's property, like they are doing today. That’s fraud.

If the driver refused to remove the car, then, and only then, can the cop have it towed.

[na85]

Please post updates re: McGuinty's response (if any). I'd like to know how this turns out.

[Mr.Canada]

The Liberals are arrogant and entitled to their entitlements. They don't care about you or me unless a large number of voters are irate or you're a special interest group otherwise The Liberals simply don't care. King McGuinty on his throne in Queens Park.

[SmellyBoxers]

Edited November 24, 2008 by SmellyBoxers