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Thursday, March 11, 2010

Harper government wants full-blown police state

The Harper regime is putting forward a proposal to make it easier for police to conduct random, suspicionless searches of people's person by introducing legislation that would make it legal for police to randomly stop and compel drivers to submit to breathalyzer tests.

Under this legislation, police would not need to observe the typical behaviour of say, swerving around the road, driving outside the lines, or driving abnormally slowly. No, they'll be able to just pull you over at random, and demand you submit to a breathalyzer test.

It goes without saying that this appears to be unconstitutional -- sections 7 through 9 of the Charter would seem to preclude such legislation.

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

This hasn't stopped MADD (Mothers Against Drunk Driving) from cheering loudly for expanded police powers -- including the right to randomly stop people without any prior suspicion. But I already knew MADD is well, mad.

Which isn't to say their heart isn't in the right place. But when you look at the policies they push for, it's not like you get the sense they really care much about things like due process, rights against unreasonable search and seizure, and all that good stuff.

Then again, conservatives don't much care about these things either when it comes to fighting terrorism.

And then again, many leftists don't care much about these things when it comes to fighting hate and discrimination.

As the experience of random, suspicionless immigration checkpoints in the US has shown, police do not limit their random stops to the purported mandate. They use the initial mandate as an excuse to look for other legal violations like: narcotics, outstanding warrants, expired driver's licenses, etc.

What is supposedly an extraordinary police measure to fight an extraordinary problem, turns simply into a catch-all solution for police to throw out a net and screen people for a multitude of legal violations. Not unlike the police checkpoints throughout authoritarian states.

Defenders of these policies throw up their arms when people like me, compare the policies they advocate with those of Nazi Germany or Stalinist Russia by pointing out they seek to catch drug dealers, illegal immigrants, and drunk drivers. Not political dissidents, Jews, and other targeted groups. In this sense, they have a point. But it doesn't escape the crux of the matter, which is that they are, in fact advocating for the same powers that these evil regimes had, in order to promote their own version of virtue, no matter how objectively virtuous everyone may think it is.

The presumption of innocence is a core facet of our concept of justice. This is why we have all these restrictions on police. Random searches of people, without suspicion is a violation of this precept. It is for all intents and purposes, a presumption of guilt. Because, if you presume someone is innocent, you'd have no reason to search them now would you? And that's the problem.

As conservatives in this country mock the nanny state that the United Kingdom has become, they are hell-bent on diluting our protections from it. They want to water down our rights, give police more power to enforce the law, requiring we all give up our right to privacy, or right against unreasonable search and seizure, and ultimately our right to be presumed innocent. Hell, they think anyone accused of terrorism should be able to be held indefinitely, without charge.

Only a fool would not recognize the opportunity for the nanny state to metastasize in an environment where government policing power is unchecked.

Unfortunately, they view due process rights as a cute, high-minded value, and nothing more.

When it comes to fighting terrorism, drugs and drunk driving, due process rights are doing nothing but stand in the way of protecting the public from these threats. So the ends justifying the means, these rights need to be limited and/or disposed of. We don't need protection from the police, of course. In statist conservative thought, the police need more rights than the average citizen to be the harbingers of virtue. Which makes them not all that different from the rulers of Saudi Arabia or Iran. They're only different by matter of degree.

Sure, they're not advocating for religious police on the streets. But like the Saudis and Iranians, they don't think people have any natural right against being randomly stopped by agents of the state, either. They agree the state represents a type of authority that people should submit to and obey. The authoritarian tendency runs deep within their veins, even if they infection is not as advanced as it is in the non-Western world.

We are lucky to have a Supreme Court Chief Justice, Beverley McLachlin, who is decidedly on the side of liberty. However, with all three major parties in this country nipping at the ankles of our legal rights, the future is uncertain.

Posted by Mike Brock on March 11, 2010 | Permalink

Comments

Knock off the overheated rhetoric, Mike. If you read those statutes again, you'll find they guard against deprivation of liberty WITHOUT due process, against UNREASONABLE search and seizure, and ARBITRARY detainment. Notice that there is considerable latitude in that wording. To wit:

7. Neither life, liberty, nor security of the person are impugned by asking a driver to pull over for a minute and blow into a plastic box.

8. Booze on the breath emanates AWAY from the person and does not require an invasive search to detect. Often the officer can smell it before whipping out that roadside screening gizmo. And a pothead smoking at the wheel can be smelled for a city block.

9. Detainment and imprisonment follow ONLY if you are found to be in violation of the law, subject to due process and a trial, like any other infraction. An officer's suspicion does not amount to a presumption of guilt by the courts.

Further bolstering the argument for these non-violations is the fact that they are intended to prevent accidents and save lives, which removing drunk/stoned drivers from the road would unquestionably accomplish. If the roadblocks the police routinely set up in high-risk spots to nab drinking drivers were unconstitutional, it seems likely we'd have had a ruling to that effect before now. They've been doing it for decades.

It really is remarkable the things some people would rather be than safe. More remarkable still that they can compare a democratically elected Prime Minister to the mullahs and ayatollahs of police states like Iran. Hell, the Coalition and their attempted coup more closely resembles that part of the world than asking drivers to blow into a box. Oh well--at least you didn't call him "Shrub."

Posted by: Shane Matthews | 2010-03-11 7:15:40 AM


How is this different then the RIDE program we already have in Ontario?

Posted by: Eddie B | 2010-03-11 7:21:29 AM


How is this different then the RIDE program we already have in Ontario?

When stopped at a RIDE program, an officer must first obtain probable cause in order to compel you to submit a breath test.

These would be a few examples of probable cause:

- You admit to drinking (in any amount)
- The officer smells alcohol on your breath
- You have bloodshot eyes
- There's an open alcohol container in plain-view of the officer.

This new legislation would remove the need for the officer to have any probable cause whatsoever. Instead, they could just demand you get out of your car and blow into a breathalyzer without having any suspicion you are drunk.

In the United States and Canada, this type of search has been illegal throughout our history, up until recently.

In fact, when I am stopped by a RIDE program, I refuse to answer the police's questions. They usually realize I'm asserting my rights, and wave me through, not wanting to bother with me.

In reality, under the current law, that's all the police can do: force you to stop for a reasonable amount of time. You do not have to answer their questions, or even roll down your window. They must have probable cause to demand that you do these things.

The Harper conservatives are trying to change that with this law, so that people like me can effectively be arrested if we try to assert our rights.

Posted by: Mike Brock | 2010-03-11 7:36:01 AM


I'm sure the usual suspects will be showing up shortly Mike, before that let me say thanks for bringing this to light, these stories never get the coverage they deserve.

The mentality at work here, as you mention, is that it won't happen to "good" people. The cops are generally viewed as good people trying to defend peaceful citizens against the violent and fraudulent. What's not fully understood is that the police are essentially government bureaucrats with guns. Most enter the force with the intention of defending the peaceful and non-violent, but they are also duty bound to enforce the law. They are human and will sometimes either abuse their power, or look the other way and give a break. The problem, however, isn't the cops. It's the laws they are required to enforce. They're just doing their job.

The law is whatever politicians happen to deem as forbidden. The conflation of morality with law has allowed statists of all parties to get away with infringements on our natural rights. Canadian society, by and large, still believes that what is legal is moral, and what is immoral should be illegal.

There has been progress over the last few decades in sexual matters, but in much of life the attitude is to ban or regulate what they don't agree with. Everyone is for freedom, their own. It's everyone else's freedom they have a problem with. It's rank hypocrisy and rather popular politics.

One hopes the courts will throw this out. The Charter is a deeply flawed document, which only partially protects our natural rights. It also depends heavily on the quality of the judges on the bench. I can see some justices invoking Section One on this issue, arguing that saving society from drunk drivers is worth compromising the rights of peaceful citizens. Our legal system and politics is based on precedent, as such invasions like these do not bode well for the future.

Posted by: Publius | 2010-03-11 7:40:26 AM


Police will sometimes also use sneaky language like: "would you be willing to submit to a breath test?" -- which is inviting you to waive your rights, which most people do.

I've been asked this twice, and said "no". In neither case was I arrested or detained for much longer.

In each case when they asked me if I was "willing" to submit to a breathalyzer, my response was: "Do you have cause to require me to submit a breath test?"

Now, if they had probable cause, like they smelt alcohol on my breath or what have you, they would have said "yes, we have reason to believe you've been drinking". In which case, I could face penalties for refusing to submit a test under Ontario law. But failing police having any reasonable suspicion, I have every right to refuse. And I have, as I just pointed out.

Simply being in a car, behind the wheel, is not probable cause to believe you have committed a crime. Essentially what this bill would do is say, well, yes... simply driving a car is probably cause to believe you're driving intoxicated. Which is nonsense.

Posted by: Mike Brock | 2010-03-11 7:40:38 AM


7. Neither life, liberty, nor security of the person are impugned by asking a driver to pull over for a minute and blow into a plastic box

Liberty is almost certainly impugned. Most traffic stops average about 10 minutes, in my experience. It's hardly a minute. For those 10 minutes, especially if I'm innocent, I am deprived of my mobility rights, my privacy rights, etc.

The concept of probable cause is a fundamental aspect of our concept of justice. And we demand it before violating people's liberty.

8. Booze on the breath emanates AWAY from the person and does not require an invasive search to detect. Often the officer can smell it before whipping out that roadside screening gizmo. And a pothead smoking at the wheel can be smelled for a city block.

Smelling alcohol on someones breath is certainly probable cause to suspect someone has been drinking. I agree with this, and I even listed it as an example.

However, randomly pulling someone over on the highway without probable cause in order to smell someone's breath is not acceptable. That's arbitrary search to attempt to obtain probable cause. The law doesn't work that way.

9. Detainment and imprisonment follow ONLY if you are found to be in violation of the law, subject to due process and a trial, like any other infraction. An officer's suspicion does not amount to a presumption of guilt by the courts.

Detainment occurs whenever you are legally prevented from leaving in my opinion. This includes a traffic stop. Which is why the officer should have probable cause prior to detaining you. If the officer sees you driving like an idiot, that can be probable cause. But a random stop of someone who is driving perfectly normally is not.

Posted by: Mike Brock | 2010-03-11 7:49:31 AM


In fact, when I am stopped by a RIDE program, I refuse to answer the police's questions. They usually realize I'm asserting my rights, and wave me through, not wanting to bother with me...The Harper conservatives are trying to change that with this law, so that people like me can effectively be arrested if we try to assert our rights.

In other words, you're an obnoxious gadfly who doesn't like being told what to do and gets a kick out of rebelling against authority, no matter how fleeting (or nonexistent) the payoff. Seriously, I'd never have guessed.

Problem is, these are your rights only if the courts interpret them as such. Section 1 of the Charter makes clear that all rights are subject to reasonable limits, and the language of Sections 7 through 9 is similarly qualified.

The police are trying to make the roads SAFER. But your self-styled right to be an asshole is more important to you than lives saved. After all, whether they live or die, there's no real payoff for you, so they don't really exist in your eyes.

Posted by: Shane Matthews | 2010-03-11 7:56:53 AM


What's not fully understood is that the police are essentially government bureaucrats with guns. Most enter the force with the intention of defending the peaceful and non-violent, but they are also duty bound to enforce the law.

True. But as you say, they enjoy considerable latitude, and in my experience are helpful and respectful if allowed to be so. It generally takes a lot to get arrested in this country; I've never managed it yet.

The law is whatever politicians happen to deem as forbidden. The conflation of morality with law has allowed statists of all parties to get away with infringements on our natural rights. Canadian society, by and large, still believes that what is legal is moral, and what is immoral should be illegal.

And they always will, Publius. Morality is the foundation upon which the law rests. The only people who really have a problem with it tend to be rather immoral and extremely selfish, and since nobody really likes selfish people, "immoralists" are at a disadvantage. Also, you can go on all you like about "natural" rights, but as a practical matter you have only those rights the law, including the Charter, gives you.

There has been progress over the last few decades in sexual matters, but in much of life the attitude is to ban or regulate what they don't agree with. Everyone is for freedom, their own. It's everyone else's freedom they have a problem with. It's rank hypocrisy and rather popular politics.

Did it occur to you that you might suffer from the same sort of self-serving tunnel vision? I see this type of thinking more on this blog than elsewhere.

One hopes the courts will throw this out. The Charter is a deeply flawed document, which only partially protects our natural rights.

You have no natural rights.

It also depends heavily on the quality of the judges on the bench.

Which at the moment is not great, I agree. However, they have traditionally come down on the side of liberty over morality, so I don't see why you would have a problem with them.

I can see some justices invoking Section One on this issue, arguing that saving society from drunk drivers is worth compromising the rights of peaceful citizens.

Peaceful does not mean law-abiding, nor that one always drivers sober. As a citizen, more is expected of you than simply not slitting your neighbour's gullet.

Our legal system and politics is based on precedent, as such invasions like these do not bode well for the future.

It bodes well for the lives saved; up to 37% in some jurisdictions. But you would sacrifice those lives in the name of some vague, nebulous, abstract "natural right" you have awarded yourself, "just cuz." Do you need further convincing that the tunnel vision here is your own?

Posted by: Shane Matthews | 2010-03-11 8:05:41 AM


Here is some relevant case law:

The Supreme Court of Canada ruled in R. v. Mann [2004] that police have the power of detention for investigative purposes, but do not have the power to search without probable cause.

In general, the Supreme Court uses what is known as the Wakefield test, to determine if the infringement on someones liberty is necessary for “the preservation of the peace, the prevention of crime, and the protection of life and property”

When these infringements occur, the court has asserted that if: "the detaining officer has some ‘articulable cause’ for the detention" the officer must have "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

In R. v. Simpson [1993], the court held that "articulable cause was not sustained merely by the officer’s hunch based on intuition gained by experience."

In Dedman vs. The Queen [1985], which specifically deals with R.I.D.E. programs in Ontario, the court was very clear on these points: "Applying the Waterfield test, the random vehicle stop was a prima facie unlawful interference with liberty since it was not authorized by statute."

It concluded in it's judgement: "Since the police officer randomly stopped the appellant and arbitrarily detained him, he [the police officer] was not acting lawfully at the time of the demand under s. 234.1(1) and it was not lawfully made. Accordingly, the s. 234.1(1) demand was invalid and the appellant cannot be convicted of failing or refusing without reasonable excuse to comply with a demand for a breath sample contrary to s. 234.1(2)."

So Shane Matthews is simply wrong. The courts have spoken on this issue in multiple cases, and they don't agree with him.

Posted by: Mike Brock | 2010-03-11 8:08:25 AM


Problem is, these are your rights only if the courts interpret them as such. Section 1 of the Charter makes clear that all rights are subject to reasonable limits, and the language of Sections 7 through 9 is similarly qualified.

The problem for your argument is that the courts have consistently ruled that search and seizure, even for the purposes of getting drunk drivers of the road (Dedman vs. The Queen) is not a reasonable limit on your rights.

The court re-asserted this principle in R v. Simpson, and in R v. Mann.

At no point have the courts accepted the idea that police can randomly search you. In fact, they've outright condemned the idea. You can read these judgments yourself.

This new law the conservatives are proposing runs counter to all the case law, and would likely be shot down on a Charter challenge given this.

Posted by: Mike Brock | 2010-03-11 8:18:21 AM


The above case law also explains that while I have refused to breath tests, I was not arrested. And Shane's allusion that by doing so, I am imperiling the safety of others is bullshit.

Since I had not been drinking in either case, my refusal to submit to a breath test made no difference to the safety of others on the road.

Posted by: Mike Brock | 2010-03-11 8:31:38 AM


Harper and the Conservatives continue to disappoint. They're not just keeping the seats warm until the liberals return they're actively increasing the size and power of the state. And Canadians are paying the price on two fronts, with their liberty and their pocketbook.

Posted by: Farmer Joe | 2010-03-11 8:33:01 AM


"In other words, you're an obnoxious gadfly who doesn't like being told what to do and gets a kick out of rebelling against authority, no matter how fleeting (or nonexistent) the payoff. Seriously, I'd never have guessed."

That's right Matthews, bend over and obey!

Posted by: Charles | 2010-03-11 8:37:57 AM


"You have no natural rights."

And there you have it. A fascist through and through.

Posted by: Charles | 2010-03-11 8:39:00 AM


Simply being in a car, behind the wheel, is not probable cause to believe you have committed a crime. Essentially what this bill would do is say, well, yes... simply driving a car is probably cause to believe you're driving intoxicated.]

Uh huh. And simply travelling from one country to the next does not constitute probable cause to believe you are a smuggler. Yet customs opens your bags, even Canadian customs, and the courts haven't ruled they can't.

Liberty is almost certainly impugned. Most traffic stops average about 10 minutes, in my experience.

Not for me, they don't. My experience is more like a minute. In fact, if it looked like it would take more than a minute, I would say, "We can save many words, officer. Give me the roadside screening thingy." But then again, I don't give the officers attitude. Maybe you look guilty?

For those 10 minutes, especially if I'm innocent, I am deprived of my mobility rights, my privacy rights, etc.

Boo, hoo. You really are hung up on yourself, you know that? Fuck the world; it's all about you. But I've discovered that most rights hawks are like this. Ever think that might be the reason your views are not more widely accepted?

Randomly pulling someone over on the highway without probable cause in order to smell someone's breath is not acceptable. That's arbitrary search to attempt to obtain probable cause.

That is your opinion, your interpretation of the Charter. The fact that the police continue to put up roadblocks even without this legislation suggests the courts do not agree with you.

Detainment occurs whenever you are legally prevented from leaving in my opinion.

And not, in my opinion. See how easy that was?

By the way, in Dedman vs. The Queen, the court held that while the random stop was not authorized by statute law, it was authorized at common law (as pointed out by the dissenting justices), and furthermore specifically stated that the existence of such a statute law would, in fact, grant the officers ironclad authority to conduct random stops, the Charter notwithstanding. A statute that Stephen Harper is now preparing. One you know will probably not be struck down, which is why you're so mad.

So go ahead, Mike, and tell me again how wrong I am?

Posted by: Shane Matthews | 2010-03-11 8:39:09 AM


Mike and Shane, you boys seem to be in a real pissing match here.

Shane, you don't seem to think Mike has a right to be an "asshole" when it comes to "safety" on the road. I suppose you would like to see a law against being offensive. Oh wait, seems I heard somewhere that there are quasi judicial bodies prosecuting people for that very reason.

Search and seizure without cause or warrant has nothing to do with road safety. It is all about control.

About 25 years ago, as a young unassuming man, I was stopped on a Saskatchewan highway at around 3 pm for no reason. The officer looked in the window then opened my door to see if my seat belt was on (a lap belt only). He asked where I was going. I said home. He asked if I would be making any stops on the way. I said no. Then thinking I may pick up a pop I asked him if it was ok to stop at the next town for a drink. He asked how long I would be there. I said 5 minutes. He said that would be ok. I was young, law abiding, never had trouble before. This experience completely freaked me out. When I stopped for my drink, I ran in, paid for it and ran back to my car, just in case I was over my allotted time.

If I was stopped under these conditions again, I would immediately ask him why he stopped me. If he didn't have a reason I would take his name and badge number and contact his superior for an explanation on the conduct of his staff. And yes, Shane, I would be an asshole.

I have never been treated that way since. In fact I've only been stopped twice and they were Christmas road side checks. However, if the police are actually given protection under the law to stop and harass whomever they wish, that is a slippery slope we don't want to go down. It is not a safety issue. Its a protection issue.

Posted by: Robert E Lee | 2010-03-11 8:53:14 AM


And not, in my opinion. See how easy that was?

No, it's not my opinion. The courts agree with my description of detention. The question is whether or not the detention is justified, not whether or not it's detention.

So go ahead, Mike, and tell me again how wrong I am?

You are cherry picking the courts wording. The court did not suggest that a statute would make random searches legal. They said that a statue could make random stops legal; the court has upheld the right of police to setup road blocks for DUI checks.

However, the courts have maintained -- if you read the judgments -- that while random stops may be justified, random searches without probably cause are not. And to try and argue that police requiring you to blow a breath test is not prima facie a search, would be absurd.


Posted by: Mike Brock | 2010-03-11 8:53:59 AM


From R v. Mann [2004]:

"The case law raises several guiding principles governing the use of a police power to detain for investigative purposes. The evolution of the Waterfield test, along with the Simpson articulable cause requirement, calls for investigative detentions to be premised upon reasonable grounds. The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or on-going criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation. The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test."

Further, the court articulates that the police duty to investigate does not necessarily trump liberty:

"Police powers and police duties are not necessarily correlative. While the police have a common law duty to investigate crime, they are not empowered to undertake any and all action in the exercise of that duty. Individual liberty interests are fundamental to the Canadian constitutional order. Consequently, any intrusion upon them must not be taken lightly and, as a result, police officers do not have carte blanche to detain. The power to detain cannot be exercised on the basis of a hunch, nor can it become a de facto arrest."

...

"Any search incidental to the limited police power of investigative detention described above is necessarily a warrantless search. Such searches are presumed to be unreasonable unless they can be justified, and hence found reasonable, pursuant to the test established in R. v. Collins, [1987]"

Posted by: Mike Brock | 2010-03-11 9:17:49 AM



Shane, you don't seem to think Mike has a right to be an "asshole" when it comes to "safety" on the road. I suppose you would like to see a law against being offensive. Oh wait, seems I heard somewhere that there are quasi judicial bodies prosecuting people for that very reason.

He does have the right to be an asshole. He does NOT have the right to be an asshole and then tuck tail and come screaming “MOOOOOOMM!” when others, including police, are assholes to him in return. His complaint was that his stops averaged ten minutes. From what you’ve described, so do yours. Mine average one, if that. Furthermore, when I was recently pulled over for speeding, I was polite and cooperative with the officer and did not try to deny it. Even though I was doing more than 20 over, I was given only a written warning (no fine), and the officer even stopped traffic so I could pull back out safely. Funny how far a little courtesy gets you, isn’t it? You should try it sometime.

Search and seizure without cause or warrant has nothing to do with road safety. It is all about control.

IT’S A CONSPIRACY! THE POLICE GOT A GRIP ON THE GOVERNMENT! THEY WANT TO PUT US ALL IN LITTLE BOXES, MAN!

About 25 years ago, as a young unassuming man, I was stopped on a Saskatchewan highway at around 3 pm for no reason…This experience completely freaked me out.

Guilty conscience, huh? What’s it like to have one? I have little experience.

If I was stopped under these conditions again, I would immediately ask him why he stopped me. If he didn't have a reason I would take his name and badge number and contact his superior for an explanation on the conduct of his staff. And yes, Shane, I would be an asshole.

And probably would receive as much assholic treatment in return as the law allowed (perhaps a smidgen more). Notice how neatly you fit the description of the rights hawk? It’s your RIGHT to be an asshole, you affirm. But let someone else be an asshole in return, and you start taking badge numbers and demanding satisfaction from superiors. You can dish it out, but not take it. That is not manly conduct. Apparently you haven’t matured much during those 25 years.

If the police are actually given protection under the law to stop and harass whomever they wish, that is a slippery slope we don't want to go down. It is not a safety issue. Its a protection issue.

“We”? For whom else, apart from Mike, do you speak? The slippery slope argument also applies to incivility. Recent studies show that a small act of generosity is often magnified many-fold in the benefit it brings to people who come into even indirect contact with it, and that the same was observed for small acts of unkindness. They snowball. And your being an asshole when being an asshole is not called for provokes all sorts of negative permutations—you make the officer mad, he takes it out on you, the drivers after you, and everyone concerned goes home and takes it out on whoever’s handy, and so on. All because 25 years ago you shat a brick when an officer asked you what you were doing.

Sounds like a personal problem to me, Lee. In any case not a rebuttal of the pending legislation. I don’t see my rights as being in any danger. But maybe that’s just because I don’t reflexively and aggressively exercise them every time a mouse farts.

Posted by: Shane Matthews | 2010-03-11 9:24:51 AM


No, it's not my opinion. The courts agree with my description of detention. The question is whether or not the detention is justified, not whether or not it's detention.

But:

Detainment occurs whenever you are legally prevented from leaving, IN MY OPINION.

So you lied?

You are cherry picking the courts wording. The court did not suggest that a statute would make random searches legal. They said that a statue could make random stops legal...However, the courts have maintained...that while random stops may be justified, random searches without probably cause are not. And to try and argue that police requiring you to blow a breath test is not prima facie a search, would be absurd.

The law is constructed upon absurdities, Mike; that in itself is not a deal-breaker in the legal arena. In any case, once the officer has stopped you, it's the easiest thing in the world for him to say that you look nervous, or that your driving looks "a little off," or that he thinks he smells booze on you. Such judgment calls are highly subjective, and there'll be no witness to testify to the contrary, will there?

Remember that probable grounds does not constitute proof in itself. If an officer believes in good faith that he has probable cause to search you, yet finds nothing, he is not guilty of misconduct. Yet anything he does find will be admissible. Same with a breath sample. Once he STOPS you, having been given authority to do so, it's much harder to argue "unreasonableness," because the tells which betray intoxication are so subtle and fleeting and cannot be preserved as evidence for the trial.

Given the praiseworthy goal of the legislation and its minimal intrusion upon Charter rights (if any), and counterbalanced against our left-leaning Supreme Court (which will be right-leaning if Harper remains in power much longer), I give this law at least a 50-50 chance of remaining in force. Assholes be warned.

Posted by: Shane Matthews | 2010-03-11 9:40:06 AM


The overall reasonableness of the decision to detain, however, must further be assessed against all of the circumstances, most notably the extent to which the interference with individual liberty is necessary to perform the officer’s duty, the liberty interfered with, and the nature and extent of that interference, in order to meet the second prong of the Waterfield test...

Only blowing into a box doesn't interfere with any liberty of which I am aware. You're not taking off your clothes; you're not turning over property, even temporarily; and any delay incurred is minimal. Your case is a crisis of minimums.

Further, the court articulates that the police duty to investigate does not necessarily trump liberty.

Not necessarily.

Posted by: Shane Matthews | 2010-03-11 9:44:18 AM


that in itself is not a deal-breaker in the legal arena. In any case, once the officer has stopped you, it's the easiest thing in the world for him to say that you look nervous, or that your driving looks "a little off," or that he thinks he smells booze on you. Such judgment calls are highly subjective, and there'll be no witness to testify to the contrary, will there?

No. The courts are quite clear on this. When it comes to search and seizure, the court applies a standard of unreasonableness (R v. Collins, 1987), meaning there is a burden of proof on the police officer to meet the the standards that would be considered reasonable.

In R v. Mann, the court had this to say about what "reasonable" is:

When these infringements occur, the court has asserted that if: "the detaining officer has some ‘articulable cause’ for the detention" the officer must have "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."

It is not simply enough to say someone is "a little off". Smelling alcohol on someone's breath is different. I agree that meets the standard.

The court would almost certanly not accept a cops subjective belief someone was a little off, as they said in R v. Simpson: "articulable cause was not sustained merely by the officer’s hunch based on intuition gained by experience."

Posted by: Mike Brock | 2010-03-11 9:45:59 AM


Only blowing into a box doesn't interfere with any liberty of which I am aware. You're not taking off your clothes; you're not turning over property, even temporarily; and any delay incurred is minimal. Your case is a crisis of minimums.

You're the one who's expressing an opinion here. If you read all the decisions I've cited in your entirety, you'll be under no illusion about what courts consider a search.

Requiring someone to blow a breathalyzer is a warrantless search prima facie. The court will only accept a warrantless search if it is justified based on reasonable grounds.

The Narcotic Control Act provided a statute (section 10) which gave police permission to randomly search persons for drugs. However, in R v. Collins, the court laid out clearly, that police may only search a person for drugs if they have reasonable cause to believe the person has drugs on them, such as seeing narcotics in plain-sight.

Further, they held that the statue itself did not satisfy the court as grounds to randomly search someone.

Even though the appellant lost the case, since it was established that the heroine was not concealed, but rather the appellant was holding it in her hand -- and the police saw it -- the court chose to clarify the boundaries as such.

This being the case, R v. Collins would be compelling case law to shoot down this new law if the conservatives pass it.

Posted by: Mike Brock | 2010-03-11 9:53:46 AM


Thanks for your reply Shane. Can see you don't have much of an argument so you blame me for the police trying to intimidate me.

Thats the liberal argument. The victim doesn't have rights. Its the perp that has them.

Posted by: Robert E Lee | 2010-03-11 9:58:24 AM


Here is the technology solution. Put sensitive alcohol sensors in the vehicle. A whiff of the booze, and the car no go. Or perhaps a sway detector, sway too much, car stops. There are ways to deal with the problem, rather than the crime and punishment scenario.

This is just another small step in the wrong direction.

Posted by: Steve Bottrell | 2010-03-11 10:04:02 AM


Thanks for all the info Mike.

Shane, your funny.

Posted by: Eddie B | 2010-03-11 10:51:41 AM


Thanks for your reply Shane. Can see you don't have much of an argument so you blame me for the police trying to intimidate me.

Your argument is basically "The police hate me, waahhh!" and you accuse me of not having an argument? Where did you pick up this ethos of victimhood? Were you abused or something?

Thats the liberal argument. The victim doesn't have rights. Its the perp that has them.

You're neither a victim nor, presumably, a perp. For an officer to request your business is NOT making a victim out of you. Everyone has rights; they're simply not unlimited, nor do you get to define your own rights.

Posted by: Shane Matthews | 2010-03-11 11:17:59 AM


Here is the technology solution. Put sensitive alcohol sensors in the vehicle. A whiff of the booze, and the car no go. Or perhaps a sway detector, sway too much, car stops. There are ways to deal with the problem, rather than the crime and punishment scenario.

Not a bad idea, Steve, except for the fact that those detectors will cost money. For them to be effective, they'll have to be mandated on all new cars; however, it's highly likely old cars will be "grandfathered," meaning it would take at least 15 years before most non-equipped cars were gone from the streets.

And since drinking and driving is a crime, one that merits punishment, law enforcement involvement is perfectly legitimate.

Posted by: Shane Matthews | 2010-03-11 11:20:49 AM


While the title is over the top I do agree with your take, Mike. It does not equate to a full blown police state, but it certainly is another step in that direction.

A lot of such laws and regulations come about due to politicians pandering to various special interest groups rather than politicians actually thinking through the matter. It does not lessen that they contribute, bit by bit, to the erosion of our liberty and freedom. Sadly many people continue to trust the authorities in believing that as good law-abiding citizens they are in no danger. I find this naif. The other extreme however is that all authority is bad and out to get us, which is a form of paranoia in my opinion.

Considering so many recent examples of a lack of judgement and common sense along with outright bullying by police officers, it is not wise to leave it up to their discretion. I am all for the rule of law and law and order, but this is neither.

Posted by: Alain | 2010-03-11 11:35:31 AM


No. The courts are quite clear on this. When it comes to search and seizure, the court applies a standard of unreasonableness...It is not simply enough to say someone is "a little off". Smelling alcohol on someone's breath is different. I agree that meets the standard.

How, though, does the officer prove he smelled it? He can't. The booze smell isn't going to hang around two years while the perp awaits trial; he'll never be able to prove it was there. He could be lying through his teeth, but if he's more convincing than the driver, it'll probably pass muster. The same for erratic driving.

You're the one who's expressing an opinion here. If you read all the decisions I've cited in your entirety, you'll be under no illusion about what courts consider a search...R v. Collins would be compelling case law to shoot down this new law if the conservatives pass it.

In "your" entirety, huh? Tell me, Mike, how does such an astute fellow like yourself come off like someone who's slipped off his meds? It's a good thing you don't write the laws, or no one would be able to figure out what they meant.

In any case, given that this law has passed constitutional muster in several other nations with rights charters and legal systems similar to Canada's (including at least two Commonwealth nations), AND its proven track record of making a measurable difference in saving lives, AND the fact that it will give police officers the blessing of both common AND statute law, AND the fact that the intrusions are pretty minimal, AND the fact that the Supreme Court of today is not the Trudeaupian Supreme Court of the mid-1980s, it's highly plausible that this law will get a much warmer reception than you imply.

In fact, I'd bet that's what's got you so riled. If you thought it was a slam-dunk to go straight to the wastebasket on the first constitutional challenge, you wouldn't be so mad. It's the prospect that this law will stick that gets your nose out of joint. While that alone is certainly not grounds to pass a law, it's not a particularly unpleasant side effect. Most of your reasons for refusing to cooperate with authority seem to be personal.

Posted by: Shane Matthews | 2010-03-11 11:37:31 AM


P.S. One more thing. Random checks for drunk driving do not a full-blown police state make, so your title is a fraud.

Posted by: Shane Matthews | 2010-03-11 11:40:29 AM


Shane,

Considering others here, who traditionally disagree with me are on my side on this issue -- and you seem to be the lone warrior -- maybe you should consider stepping outside your reality distortion field for a moment.

Posted by: Mike Brock | 2010-03-11 11:51:24 AM


Considering others here, who traditionally disagree with me are on my side on this issue -- and you seem to be the lone warrior -- maybe you should consider stepping outside your reality distortion field for a moment.

He disagrees with me only in that he does not like the new law and the re-interpretation of our Charter rights it supposedly entails, whereas I see no problem with it. Also, and I admit I seem to be alone in this, I'm not afraid of the police, having had no bad experiences with them, despite having dealt with them. I wonder what I have that you haven't? Could it possibly be manners?

Posted by: Shane Matthews | 2010-03-11 12:03:48 PM


"Others." That's a good one.

Posted by: Shane Matthews | 2010-03-11 12:05:17 PM


Hey, whats the big deal? The Human Rights Commissars will protect our "liberties!!!"

Posted by: Stephen | 2010-03-11 2:29:51 PM


There is no realistic Constitutional protection against the Police State we live in.

Think, seat belts.

You can be pulled over if a police officer believes you are not wearing a seat belt. That simple. Once pulled over for that, you can be slapped with anything else that springs to the meter maid's mind.

If we have the right to be left alone, have the right to security of person, very, very, very few Canadians have the cojones to exercise it.

Canadians believe they must do as police officers say. We don't, but the bluff keeps our peaceable fascism going strong.

Posted by: JC | 2010-03-11 7:34:34 PM


@Shane you remain the most nauseatingly fascist phuk ever to disgrace these boards.

There can be no doubt that you bend over for any cop, any time, any where --- fascists love submission as much as they love bullying and having people bullied.

Your perspective was long ago established as worthless -- beyond being a reliable snap shot of what the garden variety brown shirt sheep of this country think.

WE HAVE THE RIGHT TO BE LEFT ALONE.

To the extent that cops ought to have ANY power is should be confined to preventing actual, men rea crime in process, or bringing actual wrongdoers to justice. Which they seldom ever do.

The fact is, giving police more and more opportunities to scrutinize, and interact with, the average citizen, means only that that is what they will occupy their time with -- NOT, as we increasingly see, in pursuing the criminal minority who do actual harm to persons and property.

Posted by: JC | 2010-03-11 7:40:31 PM


Of course, most people, even many so-called libertarians, believe that the State has the right to police our blood streams for substances they disapprove of.

But it does not.

Some people can function perfectly well with blood alcohol above .08, as can many while under the influence of various drugs.

There is a lot of truth to the old joke: '30% of all driving fatalities are caused by drunk drivers -- which means 70% are caused by sober people'.

The truth is, ALL motor vehicle fatalities are caused by HUMANS. So the State will continue trying to regulate human beings right down to the mitochondrial level, all in the name of whatever Living Horror they wish to pretend they are eradicating.

Camus said it best: "The welfare of humanity is always the alibi of tyrants."

Posted by: JC | 2010-03-11 7:48:03 PM


Alain and JC, I agree.

JC, excellent point about the 70%. But have no fear, they are working on that too.

Posted by: TM | 2010-03-11 7:58:18 PM


The sad, sick irony is, that as drivers (car travel now over a century old in our society), roads, and cars get safer, the State cranks up Safety as the pretext for greater control over those same drivers, roads, and cars.

And instead of building actually safer roadways, the State carries on soaking us for our travel taxes (traffic tickets) and wasting them along with general revenues. Government is IMPEDING the improvement of driving safety, in part by encouraging a false sense of security based on the laughable notion that police are protecting drivers from truly dangerous drunks.

Of importance too is the apparent fact that as law is piled upon law, government-media propaganda is piled upon propaganda, the alleged incidents of drunk driving do not seem to be declining.

So with solid evidence that fear, coercion, and police state tactics do not work, why do the Canadian sheeple let politicians like the insufferable fascist Harpo get away with boiling we frogs alive??

Posted by: JC | 2010-03-11 8:10:19 PM


There is no realistic Constitutional protection against the Police State we live in. Think, seat belts. You can be pulled over if a police officer believes you are not wearing a seat belt. That simple. Once pulled over for that, you can be slapped with anything else that springs to the meter maid’s mind.

Police State: A state in which the government exercises rigid and repressive controls over the social, economic, and political life of the people, especially by means of a secret police force.

A uniformed Mountie pulling you over for a moving violation compares with this how? You talk like someone with something to hide. You’re right, however, that once you’re pulled over, it becomes much harder to evade being caught in the commission of a crime. But I can live with that. They won’t find anything if they toss my car.

If we have the right to be left alone, have the right to security of person, very, very, very few Canadians have the cojones to exercise it.

Uh huh. To the freedom fighters belong the future. Today the Vancouver Art Gallery; tomorrow the world. Where have we heard this before? By the way, answering a few questions and/or blowing into a box does not violate your personal security.

Canadians believe they must do as police officers say. We don’t, but the bluff keeps our peaceable fascism going strong.

Spoken like a true outlaw. So many libertarians seem to be.

@Shane you remain the most nauseatingly fascist phuk ever to disgrace these boards.

A fascist would not support your right to be critical of the system, JC. Do try to refrain from ridiculous hyperbole; it makes you sound like a dung-headed teenager. If you’re quite done proving Godwin’s Law...

There can be no doubt that you bend over for any cop, any time, any where --- fascists love submission as much as they love bullying and having people bullied.

Except for the odd moving violation (for which I usually receive the minimum or no punishment) the police seem not to find me. You, on the other hand, talk like someone who just can’t shake them. Any number of cops is too many...for the outlaw.

Your perspective was long ago established as worthless – beyond being a reliable snap shot of what the garden variety brown shirt sheep of this country think.

Established by whom? The criminals who populate this board? Excuse me if I don’t slip into the bathroom to cry.

WE HAVE THE RIGHT TO BE LEFT ALONE.

No, you have the right to be free from unreasonable search and seizure. Arguing that this law is unreasonable is a bit of a stretch.

To the extent that cops ought to have ANY power is should be confined to preventing actual, men rea crime in process, or bringing actual wrongdoers to justice. Which they seldom ever do.

Since you acknowledge the validity of no law except such law as protects your self-styled right to do what you want, when you want, and fuck the world, it’s little wonder you believe the police seldom arrest bona fide wrongdoers, although they do manage to arrest lots of criminals.

The fact is, giving police more and more opportunities to scrutinize, and interact with, the average citizen, means only that that is what they will occupy their time with – NOT, as we increasingly see, in pursuing the criminal minority who do actual harm to persons and property.

The police are endeavouring to use this law to catch drinking drivers—criminals by definition, who do actual harm to persons and property. But the lives that experience in other countries tells us would be saved mean nothing to you. Your “right to be left alone” comes before everything, even human life. You even object to the fucking seat belt law on pure principle. We’re not too hung up on ourselves, are we, JC?

Posted by: Shane Matthews | 2010-03-11 8:52:19 PM


Posted by: Shane Matthews | 2010-03-11 9:14:42 PM


Oh no! The government is after drunk drivers! Quick hide the kids! Only Mike would have a problem with the government cracking down on drunk drivers. Hey, Mike is the right to drive drunk a charter right! Is the right to drive while whacked up on drugs also a right that the government must not infringe on. It is radicals like you that turn most people away from the libertarian movement. Your extremism is amazing! Will you next be telling us why the monitoring of child molesters is a wrongful abuse of government?

Posted by: Edgar | 2010-03-11 9:25:33 PM


@Shane: every community produces a certain percentage of kapos.

I am grateful this board has helped ID you.

You live as you will die -- in fear,cowardice, and submission.

Posted by: JC | 2010-03-11 10:58:34 PM


I think it was one of the American founding fathers who expressed the view that those who would give up freedom for security will gain neither security nor freedom. I have no problem with Check Stops if it can be shown that they keep off the road those who are too inebriated to drive safely. I don't wish to go any further than that. And you can politely refuse improper searches.

Posted by: DML | 2010-03-11 11:04:07 PM


@Edgar:

Why not just cut to the chase, genius: because some people will be unable to safely operate a motor vehicle after a certain % blood alcohol has been reached, and, because a certain fixed percentage of people in society will be sexually attracted to children, and act on that deviance, let us just bow down to government as they, in the name of combating All Evil Everywhere, turn us all into criminals.

But howz this for a scenario, Mr. Collectivist Sheep: seeing as how increasing State presence, pressure and control generates tremendous levels of stress, crime, and social pathology (see: Russia late 20th Century and beyond)how will you relieve your beloved State Medicare system from this impossible challenge? How will you pay for all the prisons? How will you pay for all the additional police? And all the citizen-snitches government recruits today?

Motor vehicle deaths due to drunk -- as opposed to DRINKING & -- driving are no greater today than they were in the 1930s or 1970s or 1990s. As science, industry, society and technology make driving SAFER, the State finds ways to make conditions more dangerous.

For instance, Mr. Prohibition (cuz that is what MADD et al are really all about): Licensing and CLOSING TIME laws actually CAUSE drunken chaos: a 2 AM closing time rushes the drunk drivers to finish and consumer their drinks artificially before dumping a GLUT of drinkers on the roads ALL at ONCE; taxi regulations make cabs more expensive and scarcer than they would be without your beloved Nanny/Bully regulatory State.

Face it, Edgar: tools like you are the ones marking the ballots that are making us a fragile, incompetent, cowering society not worthy of our self-reliant, responsible, brave grandparents.

Posted by: JC | 2010-03-11 11:08:34 PM


You live as you will die -- in fear,cowardice, and submission.

Screeched the rebel outcast.

Posted by: Shane Matthews | 2010-03-11 11:39:12 PM


I think it was one of the American founding fathers who expressed the view that those who would give up freedom for security will gain neither security nor freedom.

Driving drunk is not a freedom. For that matter, driving is not a freedom; it is a privilege that is NOT PROTECTED BY THE CHARTER.

Posted by: Shane Matthews | 2010-03-11 11:40:09 PM


Face it, Edgar: tools like you are the ones marking the ballots that are making us a fragile, incompetent, cowering society not worthy of our self-reliant, responsible, brave grandparents.

Is this the reason for your bitterness, JC? That you were born a hundred years too late? Well, you could always join a survivalist group, so what are you still doing here?

Posted by: Shane Matthews | 2010-03-11 11:41:32 PM


@Shane: we already know you have deep, albeit impotent (hence your clinginess where government and pseudo-authority are concerned), hatred for your elders and for freedom.

But let's simplify things, Shaney: if you hate freedom so much, why wait for society to so slowly evolve into the condition you crave? Why not just move into a prison, and seek your "Daddy" there, instead of lobbying to impose one on all of us?

You are so pathologically disturbed, so blissfully unaware of your own effete cowardice and weakness, that I really have come to pity you.

In fact, where once I thought you were merely a mealy mouthed troll, I am now convinced you are a masochist who comes here FOR abuse.

Worse, you have become a dreadful bore.

Posted by: JC | 2010-03-12 12:02:12 AM


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