Driving While Drugges Legislation

[Topaz]

Couldn't they have just have a law, which I think , is a law, BOTH HANDS on the steering wheel at ALL times? That would take care of smoking, cell phones, drinking, eating, shaving or anything else people do behind the wheel.

[Argus]

Maybe not, but we have to start somewhere.

What part of "already illegal" don't you understand?

If the only drugs they have are inside them, and they're not doing anything else illegal, then how do you get a conviction?

[sideshow]

Let me ask this...seeing as I guess I must be one of the "silly-ass" lawyers being referred to...

WHY CAN'T THE POLICE STOP CHEATING, STOP BREAKING THE LAW, STOP BREACHING CHARTER RIGHTS and just CONVICT THE OFFENDERS FAIRLY AND JUSTLY!?!?!?!?!?!?!?!?

Seriously, the Charter has been with us for almost a quarter of a century and yet, tomorrow, or the next day, I'm going to get an impaired driving file where the dumb-ass cop doesn't let the accused call a lawyer before the breathalyzer.

THAT IS POLICE INCOMPETENCE leading to that charge being tossed...not silly-ass defence lawyers.

I mean it...one of you anti-lawyer, anti-presumption of innocence, anti-fair trial types explain it to me...because, you see, if the police just do their jobs and don't act like storm-troopers out to get a conviction at all costs then they leave me with but one tactic to assist my clients...plead guilty.

FTA

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

I would never presume to denigrate the position/career of another without having walked in their shoes.

[BubberMiley]

If the only drugs they have are inside them, and they're not doing anything else illegal, then how do you get a conviction?

If they aren't doing anything else illegal, then what's the problem? If they're driving recklessly, then that's illegal. Boost the penalties for that. If a kid gets killed by a bad driver, I don't really care what they were doing before they were driving badly. It's the bad driving that's the problem, and there should be zero tolerance for that.

[sideshow]

Let me ask this...seeing as I guess I must be one of the "silly-ass" lawyers being referred to...

WHY CAN'T THE POLICE STOP CHEATING, STOP BREAKING THE LAW, STOP BREACHING CHARTER RIGHTS and just CONVICT THE OFFENDERS FAIRLY AND JUSTLY!?!?!?!?!?!?!?!?

Seriously, the Charter has been with us for almost a quarter of a century and yet, tomorrow, or the next day, I'm going to get an impaired driving file where the dumb-ass cop doesn't let the accused call a lawyer before the breathalyzer.

THAT IS POLICE INCOMPETENCE leading to that charge being tossed...not silly-ass defence lawyers.

I mean it...one of you anti-lawyer, anti-presumption of innocence, anti-fair trial types explain it to me...because, you see, if the police just do their jobs and don't act like storm-troopers out to get a conviction at all costs then they leave me with but one tactic to assist my clients...plead guilty.

FTA

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

I would never presume to denigrate the position/career of another without having walked in their shoes.

[KrustyKidd]

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

In most cases yes.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

Huh? So they are under fire while reading a suspect's rights? I would think that subduing the suspect comes first, then placing the cuffs on them. Then reading them their rights once things are under control. If the guy is running around with a machine gun taking potshots and emptying clips at kids while the officer

is making the 'split second decision' of letting him call his lawyer or not at the precinct I would wonder what level of insanity has set in.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

When they lose a case or get disbarred.

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

And, all they have to do is follow their training, and, once the suspect is subdued, read them their rights and allow the tester to do his or her job in the safety of the administrative area or station.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

Like what in this case? Armed cops pull car over, unarmed guy is suspected of being under the influence and they give him roadside test. Tests positive and they place him in car, bring him to station (while not taking fire from RPGs) and allow him a call to lawyer. Then give him test with lawyer present. I thought this scenario, (which happens all the time) out as I typed. As a varience, I will put in the suspect is shooting people and the cops pull him over after throwing out a spike belt and wounding him to stop him. They subdue him and then, placing him in the back of the car, take him to the hospital where things are much calmer and safety to the public is a given where he is treated and a court appointed lawyer is present while he is given a test.

I would never presume to denigrate the position/career of another without having walked in their shoes.

When a lawyer can beat them in court I would suppose that they did because they were under stress while the proceedings were taking place or, we can presume that maybe the officer did something wrong at some point ie: used too much force during the apprehension or, did not carry out the proper administrative steps after things calmed down.

[normanchateau]

KK, did you know that under your name, just above the five blue boxes in the left hand column, it reads "Physcotic Werewolf"?

Is that like a psychotic werewolf on drugs?

[Wilber]

I've never heard a cop submit to a breathalyser. They all refuse.

I have. There is big who ha going on in West Van right now about an officer who is on a driving suspension for impaired was given a promotion just recently. Desk job of course. Turns out the drinking took place at the station after a shift. She did submit to a breathalyser, blew over and plead guilty. The irony is that the Crown prosecutes so few people for impaired in BC that without the media jumping into it, she would probably have got off if she had fought it.

[jdobbin]

I have. There is big who ha going on in West Van right now about an officer who is on a driving suspension for impaired was given a promotion just recently. Desk job of course. Turns out the drinking took place at the station after a shift. She did submit to a breathalyser, blew over and plead guilty. The irony is that the Crown prosecutes so few people for impaired in BC that without the media jumping into it, she would probably have got off if she had fought it.

In Manitoba, they prosecute. There is no tougher legislation in the country. Cops here don't take the breathalyser. Even if they don't though, they are guilty. The law finds you guilty of you don't submit to the test. And they can lose their jobs because of that.

[KrustyKidd]

KK, did you know that under your name, just above the five blue boxes in the left hand column, it reads "Physcotic Werewolf"?

Is that like a psychotic werewolf on drugs?

Yes I did. And no it is not.

Good post though.

[normanchateau]

KK, did you know that under your name, just above the five blue boxes in the left hand column, it reads "Physcotic Werewolf"?

Is that like a psychotic werewolf on drugs?

Yes I did. And no it is not.

Good post though.

Thanks.

[sideshow]

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

In most cases yes.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

Huh? So they are under fire while reading a suspect's rights? I would think that subduing the suspect comes first, then placing the cuffs on them. Then reading them their rights once things are under control. If the guy is running around with a machine gun taking potshots and emptying clips at kids while the officer

is making the 'split second decision' of letting him call his lawyer or not at the precinct I would wonder what level of insanity has set in.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

When they lose a case or get disbarred.

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

And, all they have to do is follow their training, and, once the suspect is subdued, read them their rights and allow the tester to do his or her job in the safety of the administrative area or station.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

Like what in this case? Armed cops pull car over, unarmed guy is suspected of being under the influence and they give him roadside test. Tests positive and they place him in car, bring him to station (while not taking fire from RPGs) and allow him a call to lawyer. Then give him test with lawyer present. I thought this scenario, (which happens all the time) out as I typed. As a varience, I will put in the suspect is shooting people and the cops pull him over after throwing out a spike belt and wounding him to stop him. They subdue him and then, placing him in the back of the car, take him to the hospital where things are much calmer and safety to the public is a given where he is treated and a court appointed lawyer is present while he is given a test.

I would never presume to denigrate the position/career of another without having walked in their shoes.

When a lawyer can beat them in court I would suppose that they did because they were under stress while the proceedings were taking place or, we can presume that maybe the officer did something wrong at some point ie: used too much force during the apprehension or, did not carry out the proper administrative steps after things calmed down.

Well things are not so black and white my friend. Just because a suspect is handcuffed, or "subdued" the danger is not gone. Bystanders attack officers, friends of the accused, unseen assailants on floor of back seat, or in trunk, cars driving by that get mesmerized by the lights and hit officers. Even after a search, you would be surprised how often weapons are found on a person. They are much easier to conceal than you think. And with HIV, TB, HEP C and other illnesses born by body fluids, the act of "reading the rights" is still a dangerous proposition when you get people spitting at you, pissing themselves, etc., and you are required to subdue or keep them subdued while providing them with charter. (Try getting someone in a car that doesnt want to go-not so easy;)

Providing a suspect with their charter at the station is fine-but it will still be challenged as to why the charter wasnt administered on the spot. ("Constable, can you articulate to the court why you did not provide my client with timely access to his charter rights.")

Lawyers do not "beat them" (read-cops) in court. Officers enforce the law. Lawyers argue it. Prosecutors push for a conviction, Defence lawyers push for the opposite. There should not be antagonism between lawyers and police. Two very different jobs, both technical, both part of the justice system. It really should not be an adversarial relationship. And it shouldnt be taken personal.

[Wilber]

I have. There is big who ha going on in West Van right now about an officer who is on a driving suspension for impaired was given a promotion just recently. Desk job of course. Turns out the drinking took place at the station after a shift. She did submit to a breathalyser, blew over and plead guilty. The irony is that the Crown prosecutes so few people for impaired in BC that without the media jumping into it, she would probably have got off if she had fought it.

In Manitoba, they prosecute. There is no tougher legislation in the country. Cops here don't take the breathalyser. Even if they don't though, they are guilty. The law finds you guilty of you don't submit to the test. And they can lose their jobs because of that.

The law is similar here. Trouble is, unlike many Provinces the police do not have the power to press charges in BC, only the prosecuters. The ratio of prosecutions to arrests is very low.

[sideshow]

I have. There is big who ha going on in West Van right now about an officer who is on a driving suspension for impaired was given a promotion just recently. Desk job of course. Turns out the drinking took place at the station after a shift. She did submit to a breathalyser, blew over and plead guilty. The irony is that the Crown prosecutes so few people for impaired in BC that without the media jumping into it, she would probably have got off if she had fought it.

In Manitoba, they prosecute. There is no tougher legislation in the country. Cops here don't take the breathalyser. Even if they don't though, they are guilty. The law finds you guilty of you don't submit to the test. And they can lose their jobs because of that.

Well thats a blanket statement that I would challenge. Impaired Driving convictions are some of the hardest to get. There are many variables.

And the truth of the matter is, if you provide a sample and are under .08 you lose vehicle for 30 days. you are twice that, you lose vehicle for 60 days. you refuse to provide, you automatically lose vehicle for 60 days.

so what would you do? manitoba provincial act (not CCC) provides a limit of .05. sets the bar a bit higher than the CCC.

[jdobbin]

Well thats a blanket statement that I would challenge. Impaired Driving convictions are some of the hardest to get. There are many variables.

And the truth of the matter is, if you provide a sample and are under .08 you lose vehicle for 30 days. you are twice that, you lose vehicle for 60 days. you refuse to provide, you automatically lose vehicle for 60 days.

so what would you do? manitoba provincial act (not CCC) provides a limit of .05. sets the bar a bit higher than the CCC.

You have evidence that Manitoba has a poor record of prosecuting drunk driving and taking away people's cars for blowing over or refusing?

[sideshow]

Well thats a blanket statement that I would challenge. Impaired Driving convictions are some of the hardest to get. There are many variables.

And the truth of the matter is, if you provide a sample and are under .08 you lose vehicle for 30 days. you are twice that, you lose vehicle for 60 days. you refuse to provide, you automatically lose vehicle for 60 days.

so what would you do? manitoba provincial act (not CCC) provides a limit of .05. sets the bar a bit higher than the CCC.

You have evidence that Manitoba has a poor record of prosecuting drunk driving and taking away people's cars for blowing over or refusing?

No, no evidence. And i wasnt infering that i did. I was simply stating that it is hard to get an Impaired conviction-which is true in every province as the CCC is a federal statute. There are lots of t's to cross and i''s to dot and things are very technical. Nothing more, nothing less.

[FTA Lawyer]

Let me ask this...seeing as I guess I must be one of the "silly-ass" lawyers being referred to...

WHY CAN'T THE POLICE STOP CHEATING, STOP BREAKING THE LAW, STOP BREACHING CHARTER RIGHTS and just CONVICT THE OFFENDERS FAIRLY AND JUSTLY!?!?!?!?!?!?!?!?

Seriously, the Charter has been with us for almost a quarter of a century and yet, tomorrow, or the next day, I'm going to get an impaired driving file where the dumb-ass cop doesn't let the accused call a lawyer before the breathalyzer.

THAT IS POLICE INCOMPETENCE leading to that charge being tossed...not silly-ass defence lawyers.

I mean it...one of you anti-lawyer, anti-presumption of innocence, anti-fair trial types explain it to me...because, you see, if the police just do their jobs and don't act like storm-troopers out to get a conviction at all costs then they leave me with but one tactic to assist my clients...plead guilty.

FTA

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

I would never presume to denigrate the position/career of another without having walked in their shoes.

Our Charter case law specifically deals with allowing police much leeway on the basis that they amke decisions under pressure and often where safety is an unknown at the time.

In my example, we are talking about a person who is already arrested and being brought to a bus or a police station to blow into the breathalyser (not the little road-side tester...the actual machine). There is absolutely no pressure, no safety issues, and the officers have checklists and all kinds of other reference material available to them at the time. In today's day and age, there is absolutely no excuse for an officer to not let an accused call a lawyer before blowing...but it still happens regularly.

And when cases like this get tossed in court...everyone wants to say it's because of a crooked defence lawyer. If you would prefer I use the term incompetent instead of "dumb-ass", I'll oblige...but these types of "injustices" are 100% fault of the police.

FTA

[blueblood]

Our Charter case law specifically deals with allowing police much leeway on the basis that they amke decisions under pressure and often where safety is an unknown at the time.

In my example, we are talking about a person who is already arrested and being brought to a bus or a police station to blow into the breathalyser (not the little road-side tester...the actual machine). There is absolutely no pressure, no safety issues, and the officers have checklists and all kinds of other reference material available to them at the time. In today's day and age, there is absolutely no excuse for an officer to not let an accused call a lawyer before blowing...but it still happens regularly.

And when cases like this get tossed in court...everyone wants to say it's because of a crooked defence lawyer. If you would prefer I use the term incompetent instead of "dumb-ass", I'll oblige...but these types of "injustices" are 100% fault of the police.

FTA

I can think of one, if a guy had a few drinks but is not intoxicated, he gets pulled over for oh say speeding, officer suspects he's been drinking, the guy knows he can call his lawyer and he can wait for the lawyer to be present for when he blows, that can take a while, enough of a while for the body to process the liquor for when he blows, he won't be legally intoxicated and gets off on a technicality, that's crap and you know it, the cops can say blow right now then call, justice is still served isn't it? the susect still has his rights. I know a few people who got out of a DUI pulling this off. I don't see the problem with an officer collecting evidence, and if a person doesn't want to blow in a breathalyzer, don't drink.

It also appears that you think police are all corrupt and they need all sorts of checks and balances, it may also occur to you that Canada has probably the cleanest and most respected police force in the world, the cops have that drilled into their heads to be fair and the such, and if a cop is "bad" they are in major trouble. If anything we should take off some of those checks and balances and let them do their jobs.

It's also not the lawyers fault that a guy like this can get off, it's not the cop's fault either, it is the fault of the Canadian justice system.

[sideshow]

Let me ask this...seeing as I guess I must be one of the "silly-ass" lawyers being referred to...

WHY CAN'T THE POLICE STOP CHEATING, STOP BREAKING THE LAW, STOP BREACHING CHARTER RIGHTS and just CONVICT THE OFFENDERS FAIRLY AND JUSTLY!?!?!?!?!?!?!?!?

Seriously, the Charter has been with us for almost a quarter of a century and yet, tomorrow, or the next day, I'm going to get an impaired driving file where the dumb-ass cop doesn't let the accused call a lawyer before the breathalyzer.

THAT IS POLICE INCOMPETENCE leading to that charge being tossed...not silly-ass defence lawyers.

I mean it...one of you anti-lawyer, anti-presumption of innocence, anti-fair trial types explain it to me...because, you see, if the police just do their jobs and don't act like storm-troopers out to get a conviction at all costs then they leave me with but one tactic to assist my clients...plead guilty.

FTA

Well.............

Rather than attacking Police Officers as "dumb-ass cop (s)", perhaps reflecting on the realities of the situation might shed some light on the issue of Charter breaches.

While a lawyer defending (or prosecuting) an accused has the luxury of looking at the facts with a fine tooth comb AFTER the fact (hindsight IS 20/20 ); and while a lawyer has the ability to scrutinize the actions of the Police Officer while seated in the safety of their office, with reference material, and time at hand, a Police Officer is afforded no such luxury.

A Police Officer is required to make split second decisions, and perform while in a (possibly) hostile environment. A Police Officers life is at risk while making their decision, while providing an accused with their 10 a and b Charter Rights, and sometimes (all of the time?) a Police Officer will worry more about the safety of the Public, their partner, and themselves rather than (and perhaps unfortunately so) getting all of their ducks in order.

A Police Officers actions are scrutinized by their peers, the courts, the public, their superior officers, and the media. When was the last time a lawyers name was published for a mistake that they made in court?

A Police Officer is responsible for being physically capable to handle the situation, and at the same time, is required to be thinking about the possible court case that MAY occur years down the road.

Perhaps if more education was provided to the Police Officers, more support by the courts was provided to the Police Officers (Maybe Harper is trying to do this?), more resources were allocated to the Police Officers, then there would not be as many Charter Rights issues.

I would never presume to denigrate the position/career of another without having walked in their shoes.

Our Charter case law specifically deals with allowing police much leeway on the basis that they amke decisions under pressure and often where safety is an unknown at the time.

In my example, we are talking about a person who is already arrested and being brought to a bus or a police station to blow into the breathalyser (not the little road-side tester...the actual machine). There is absolutely no pressure, no safety issues, and the officers have checklists and all kinds of other reference material available to them at the time. In today's day and age, there is absolutely no excuse for an officer to not let an accused call a lawyer before blowing...but it still happens regularly.

And when cases like this get tossed in court...everyone wants to say it's because of a crooked defence lawyer. If you would prefer I use the term incompetent instead of "dumb-ass", I'll oblige...but these types of "injustices" are 100% fault of the police.

FTA

Well sir, I can see by your comment that you do not fully understand the trials and tribulations that Police Officers face. Issues such as: hidden weapons (yes they do get missed in a search-a razor is hard to find), an accused that doesnt speak english (or fakes it ), an accused that requires medical attention (or fakes it;)), and so on and so on. There is pressure, there are safety issues, and if the Police Officer is not assigned to the traffic division, they may be dealing with an impaired driving arrest every couple of years. This leaves them open to making mistakes (technicalities?) that can result in a stay.

And sir, if you read my response, I at no time refer to defence lawyers as "crooked". In fact, I believe defence lawyers (and prosecutors while on the subject) are an integral and important part of the justice system. And like Police Officers, they are just doing the job that they signed up for.

So please dont say that police are 100% at fault for cases getting tossed. Attorneys do their job, just as Police do theirs. Everyone makes mistakes. It is simply easier for the attorney to look at things in the light of day and to follow the procedure from beginning to end without having the "pressures" of the street breathing down their necks.

[mcqueen625]

Let me ask this...seeing as I guess I must be one of the "silly-ass" lawyers being referred to...

WHY CAN'T THE POLICE STOP CHEATING, STOP BREAKING THE LAW, STOP BREACHING CHARTER RIGHTS and just CONVICT THE OFFENDERS FAIRLY AND JUSTLY!?!?!?!?!?!?!?!?

Seriously, the Charter has been with us for almost a quarter of a century and yet, tomorrow, or the next day, I'm going to get an impaired driving file where the dumb-ass cop doesn't let the accused call a lawyer before the breathalyzer.

THAT IS POLICE INCOMPETENCE leading to that charge being tossed...not silly-ass defence lawyers.

I mean it...one of you anti-lawyer, anti-presumption of innocence, anti-fair trial types explain it to me...because, you see, if the police just do their jobs and don't act like storm-troopers out to get a conviction at all costs then they leave me with but one tactic to assist my clients...plead guilty.

FTA

As far as I'm concerned and many other Canadians, the Charter as you call it is nothing but a flawed document that the people of Canada had no say in putting together nor voting on it. It has given a bunch of liberal minded lawyers who have been appointed to the bench far too much power in the area of writing law. Even Beverley McLaughlin was quoted as telling law students in New Zealand that the judiciary should feel emboldened to write law, even if their country's constitution does not allow for it, and that is exactly what they have been doing right here in Canada. Waht right does she have to go to another country and instruct budding lawyers to start off their careers by telling them that is is okay to skirt the constitution of their country? From what I have seen from this Chretien appointee it is not encouraging for ordinary Canadians. The Charter as you call it is in fact flawed because it conveys more rights to the criminals than it ever does to their victims, and that is just wrong. I realize that lawyers seem to feel that they are somehow superior and more equal than the rest of society, but being able to pass the bar does not make someone smart nor ethical.

Part of the probelm here in Canada is that we have far too many lawyers running for public office, and ultimately deciding such things as the number of doctors and nurses our healthcare system needs. I would suggest that maybe it is time we put a limit on the number of lawyers and accountants, and MBA's our universities are producing. One thing I have come to expect from lawyers is that they make life much more complicated than it needs to be.

[FTA Lawyer]

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

[cybercoma]

FTA, I'm trying to understand your legal counsel vs breathalyzer musings here...

Say I'm stopped by the RIDE program and they would like to administer a breathalyzer test on me, seemingly at random. Could I then request to speak with a lawyer before giving the sample? Would most police officers allow you this opportunity? What about the field sobriety tests they do, typically before you're arrested? Do you have the right to speak with an attorney before they subject you to those as well?

Here's the other thing, in New Brunswick they do random stops to check for up to date vehicle inspection stickers, license and registrations. If I've done nothing wrong and am just being pulled over in large batches at random (such as a RIDE program, except not for impaired driving) where is the legality in that?

[sideshow]

FTA and others,

The issue of providing an opportunity to contact counsel is not quite so cut and dry. Consider logistics. You are on a highway, not near a telephone. How would you give the accused an opportunity at this point to contact counsel? If you have a check stop set up, you need to get the sample.

For safety reasons, you dont let an accused used the car cell phone (could be used as a weapon). So to transport to the station, and allow to use a phone, then you run the risk of having the accused sober up enough prior to administering the test. And then when attempting to articulate in court the effects of alcohol wearing off, and still attempting to get a conviction based on an under .08 (at the time of testing), you run a huge risk of a stay. Meanwhile the drunk driver gets off for drinking and driving.

The charter provides for an accused to have a "reasonable opportunity" to contact counsel. This is determined (unfortunately, or fortunately depending on how you look at it) many times on a case by case basis. So what is reasonable in one case is unreasonable in another.

There is also the issue of people unable (or dare i say faking?) to provide a breath sample and must be transported to the hospital for a blood sample. You still arrest, charge, provide charter, all that fun stuff, and then at the hospital (if safe) provide them with counsel. But once again, it is hard to do without a safe, protected (for the accused, the officers, and the public) environment.

It really is a matter of perspective. It IS the police officers duty to provide the charter rights. But logistically, it is MUCH more complicated than simply giving a guy a phone and letting him/her make a call.

Anyhoo, probably best to agree to disagree on some of the finer points. I do see FTA's argument, and I am one of those that believe that the Charter is an excellent piece of legislation (though it makes an officers job harder) that protects the individual from the state. Lets not throw the baby out with the bathwater.

[FTA Lawyer]

FTA, I'm trying to understand your legal counsel vs breathalyzer musings here...

Say I'm stopped by the RIDE program and they would like to administer a breathalyzer test on me, seemingly at random. Could I then request to speak with a lawyer before giving the sample? Would most police officers allow you this opportunity? What about the field sobriety tests they do, typically before you're arrested? Do you have the right to speak with an attorney before they subject you to those as well?

Here's the other thing, in New Brunswick they do random stops to check for up to date vehicle inspection stickers, license and registrations. If I've done nothing wrong and am just being pulled over in large batches at random (such as a RIDE program, except not for impaired driving) where is the legality in that?

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

[sideshow]

Actually FTA you are mistaken. Once an officer has reasonable grounds to believe that the individual is impaired, they are arrested. Which then the charter kicks in and the accused has the right to contact counsel. The officer at this point is NOT at the station-or for that matter, many many times, not at a checkstop station. So the issue of 'providing counsel' is still an issue. The accused is under arrest. To provide the charter right to counsel is not always immediately available. And THIS is the issue that is used by defence (in many cases) as to a reason why their clients rights were violated, and thus should have the charge tossed. Meaning that the defence argues what is a "reasonable" amount of time to contact counsel. The 'reasonableness' is what results in the tossing of charges. Sometimes the amount IS unreasonable, and sometimes not. Sometimes it is simply not articulated in court properly by the officer. Nevertheless, making the assertion that the right to counsel is given in the station-ludicrous. Any officer will tell you that a delay will be challenged. And lets face it. Most of simply talk to legal aid, are told not to give a statement, comply with the demand (so as not to lose their vehicle for twice as long), and go on their merry way. And then, when all of the cards are dealt, the lawyer can look at the evidence a year later and pick apart the officers conduct so as to let the alledged (dare I say criminal?) impaired driver argue his charter rights were violated.

Keep in mind FTA that to administer the breath test, the cruiser car will have to have an approved screening device, and the officer will have to be an approved tester. In most cases (other than traffic division cars of course) this is not the case. Most officers dont have the training or the equipment on board. So excepting for the roadside enforcement checkstops, the day to day traffic stops (which are the vast majority) simply do not play out in your scenario.