REVscene - Vancouver Automotive Forum

Gnomes · 04-09-2009, 12:56 PM

The right to remain silent. Does that even applies if you are questioned as a witness or suspect? If I refuse to speak would it be bad no matter how innocent I am?

I watched the entire 27 minutes of this and the part 2.
http://www.youtube.com/watch?v=i8z7NC5sgik

One key thing the lawyer said is: Officer's job is to find inconsistency and build a case against you. If the officer decides to defend the defendant, it will be hearsay. I know the video is for American legal system but does it apply to Canada as well?

skidmark · 04-09-2009, 09:17 PM

If you are an accused, beyond identifying yourself, generally you are not required to say or do anything more. There is no law that I am aware of that compels a witness to say anything to them either.

zulutango · 04-10-2009, 12:27 PM

Under the motor vehicle act in BC, when stopped by Police, you must hand them your driver's licence and answer questions about the information on it, when asked. "What is your full name and address, what is your date of birth, is this your signature? It's called the "Schriver's Test". A refusal to answer those questions can get you a ticket.

Failing to stop and state name

73 (1) A peace officer may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a peace officer who is readily identifiable as a peace officer, must immediately come to a safe stop.

(2) When requested by a peace officer, the driver of a motor vehicle or the person in charge of a motor vehicle on a highway must state correctly his or her name and address and the name and address of the owner of the motor vehicle.

(3) A person who contravenes subsection (1) or (2) commits an offence and is liable to a fine of not less than $100 and not more than $2 000 or to imprisonment for not less than 7 days and not more than 6 months, or to both.

Berzerker · 04-10-2009, 01:19 PM

As stated you must answer the questions pertaining to your license info however anything else after that you do not have to answer... ie. Where are you going, where are you coming from, your passengers name. Keep in mind if you choose to do this the police will all of a sudden have a "report of a suspicious vehicle fitting your description in the area" and you will have a rough night.

Berz out.

Gnomes · 04-10-2009, 03:13 PM

I know identifying yourself is mandatory. I never thought about them pulling a "report of a suspicious vehicle fitting your description in the area". I guess I am kind of at their mercy. Thanks for replies.

zulutango · 04-10-2009, 04:55 PM

If the passenger is going to be charged with something..eg open liquor, seat belt etc VT then they must identify themselves. If the driver has restrictions limiting the number of passengers, I will ask the passengers to identify themselves, to decide if the driver is getting a ticket and if the passengers are immediate family members that would make them exempt. If the driver has not produced a DL then I will ask the RO, if they are present, who the driver is. This is done out of earshot of the driver. The RO is also reminded of their mandatory requirement to do so. I also tell them that giving me a false driver ID is obstruction under the Criminal Code.

dutch · 04-10-2009, 07:21 PM

I believe identifying yourself is only mandatory if you are driving a vehicle because you need a license to do so. If you are walking the street you don't have identify yourself from what I understand.

skidmark · 04-11-2009, 07:32 AM

If there is a valid reason in law and the officer asks you to identify yourself, you still need to do so, even if you are walking down the street.

nipples · 04-19-2009, 05:48 AM

Quote:

Originally Posted by skidmark

If there is a valid reason in law and the officer asks you to identify yourself, you still need to do so, even if you are walking down the street.

it's my understanding that it's only upheld if the officer has reasonable suspicion of involvement. if the person is merely walking down and is questioned, i believe that they do not have to volunteer any identifying information.

and even if they do provide the info because they believe they're being detained, the use of that info would qualify as an infringement of their charter rights.

zulutango · 04-19-2009, 06:35 AM

ey do not have to volunteer any identifying information.

and even if they do provide the info because they believe they're being detained, the use of that info would qualify as an infringement of their charter rights.[/QUOTE]

It COULD be considered that ( the scenario is a bit vague) but the evidence COULD be permitted, if it's exclusion would bring the administration of justice into disrepute. Impaired driving checkpoints are a violation of the Charter in the strict sense of the wording, but the Court has decided that this violation is overbalanced by the value of removing drunks from cars and the road.

nipples · 04-19-2009, 09:27 PM

^ true. which is why whoever thought of the drunk driving + roadcheck = best possible excuse for any officer to stop, detain, and question is a genius!!

However, I believe the situation that was brought up involves an officer requesting (which can be a form of psychological and or physical detainment) a pedestrian who is completely removed from any investigation to self-identify. If you're certain you did nothing wrong, I would not volunteer ANY information. I'd ask the officer why they need my name, what it's about, etc.

It would not be obstruction as there was no action on your part that hindered or compromised an investigation.

zulutango · 04-20-2009, 05:11 AM

Why would any Police stop someone for no reason, who was not associated with any possible or actual crime and require them to identify themselves? Makes no sense at all. The would have to be some reason that gave him reasonable and probable grounds to stop you. Without that, any evidence he collected, any arrest he made, would not be admissible in court. You just don't stop pedestrians at random for no reason. Vehicle stops can, and ARE made to check vehicle condition, driver sobriety and ability to drive, DL and insurance etc. You don't need counter attack as an "excuse" or subterfuge to stop, detain and question...even the Supreme Court has said you can "violate" Charter rights to get drunks who kill off the road....it's not an "excuse" to go fishing.

nipples · 04-20-2009, 08:20 PM

^ the first part i totally agree with you on. it'd be kinda retarded to question people randomly.

But...crap...meeting. tbc.
[continued]
Ok, you can say on paper that the purpose of the stop was to check sobriety, that you are indeed the owner of the car you're in, etc...but dont tell me that you have not heard of officers stopping a car under the guise of a MADD drinking-driving counterattack roadstop.

As a side-effect (whether intended or not) it is a perfect excuse to allow officers the opportunity to conduct searches which would have been deemed illegal by original charter standards.
How many times have you seen or heard of officers stopping a car for the initial purpose of conducting a sobriety test, seeing the occupants and then asking them the golden phrase "would you mind opening the trunk?"

This is perceived as a request, and not a question mainly due to the officer's uniform and position of authority. So what do they do with this percceived request? Obviously they comply. If there happened to be something (firecrackers, an old baggie of weed, a tin can with a joint etc) they're arrested. All this despite the fact that the joint or whatever would never have been discovered without the roadstop under the guise of a Drinking'Driving program.

Although in many cases the drivers have successfully appealed the courts to exclude the evidence, the searches should never have occured in the first place.

What do the contents of a trunk or whathaveyou inside the vehicle have to do with the original purpose of the spotcheck? Nothing unless the officer suspects the driver intoxicated.

Regaradless of what one states is the purpose of the spotcheck, many have taken it as a green-light to conduct unfounded and unreasonable searaches of vehicles.

It absolutely is used as an excuse.

zulutango · 04-21-2009, 06:10 AM

The point you are missing is that impaired driving checks are for impaired drivers. IF, during the course of ANY investigation, Police become aware of another violation of the law, they have the right to proceed in that area. By your reasoning if the Cops stop a car at a counter attack checkpoint and see a machine gun or drugs, they have to let them go because the initial stop was for drunks? The courts do not see it that way.

IF you discover something else and wish to proceed further, you had better be able to articulate your grounds. There have been several court decisions where major seizures were made and they were later tossed by the courts because there was no "legal" way they were discovered. If I stop a car for speeding and smell dope from inside the car, you know there will be further action. If there is open liquor then I will be searching for more. You tell me how I can know that contraband is hidden inside a vehicle from simply looking at the outside as it approaches a checkpoint. If there are indicators present that give me reasonable and probable grounds to believe that criminal activity is present, then I will proceed to investigate. To randomly stop vehicles and search & question the occupants is not permitted by the Charter...see random search & seizure. There would be no point anyway, as it would be tossed. You don't need an illegal excuse if there is legal justification....but there better be or false arrest & charter violation charges will follow...and it's not worth the aggrivation or the penalty.

sho_bc · 04-21-2009, 12:46 PM

Quote:

Originally Posted by nipples

^ the first part i totally agree with you on. it'd be kinda retarded to question people randomly.

But...crap...meeting. tbc.
[continued]
Ok, you can say on paper that the purpose of the stop was to check sobriety, that you are indeed the owner of the car you're in, etc...but dont tell me that you have not heard of officers stopping a car under the guise of a MADD drinking-driving counterattack roadstop.

As a side-effect (whether intended or not) it is a perfect excuse to allow officers the opportunity to conduct searches which would have been deemed illegal by original charter standards.
How many times have you seen or heard of officers stopping a car for the initial purpose of conducting a sobriety test, seeing the occupants and then asking them the golden phrase "would you mind opening the trunk?"

This is perceived as a request, and not a question mainly due to the officer's uniform and position of authority. So what do they do with this percceived request? Obviously they comply. If there happened to be something (firecrackers, an old baggie of weed, a tin can with a joint etc) they're arrested. All this despite the fact that the joint or whatever would never have been discovered without the roadstop under the guise of a Drinking'Driving program.

Although in many cases the drivers have successfully appealed the courts to exclude the evidence, the searches should never have occured in the first place.

What do the contents of a trunk or whathaveyou inside the vehicle have to do with the original purpose of the spotcheck? Nothing unless the officer suspects the driver intoxicated.

Regaradless of what one states is the purpose of the spotcheck, many have taken it as a green-light to conduct unfounded and unreasonable searaches of vehicles.

It absolutely is used as an excuse.

You write as if Counter-Attack check points are roaming and conducted against random vehicles. Check points are stationary and when working a Counter-Attack check point, I stop each vehicle passing by. As zulutango stated, if there are indicators that there is a different/non-impaired violation of the law, I will investigate that. I won't ask people randomly if they'd mind opening their trunk.

The same goes for any other type of traffic stop. I investigate the reason for the stop and if anything else comes to light during that investigation (such as a joint or roach in the center console) , I will then investigate that as well.

nipples · 04-21-2009, 11:01 PM

Quote:

Originally Posted by zulutango

The point you are missing is that impaired driving checks are for impaired drivers. IF, during the course of ANY investigation, Police become aware of another violation of the law, they have the right to proceed in that area. By your reasoning if the Cops stop a car at a counter attack checkpoint and see a machine gun or drugs, they have to let them go because the initial stop was for drunks? The courts do not see it that way.

IF you discover something else and wish to proceed further, you had better be able to articulate your grounds. There have been several court decisions where major seizures were made and they were later tossed by the courts because there was no "legal" way they were discovered. If I stop a car for speeding and smell dope from inside the car, you know there will be further action. If there is open liquor then I will be searching for more. You tell me how I can know that contraband is hidden inside a vehicle from simply looking at the outside as it approaches a checkpoint. If there are indicators present that give me reasonable and probable grounds to believe that criminal activity is present, then I will proceed to investigate. To randomly stop vehicles and search & question the occupants is not permitted by the Charter...see random search & seizure. There would be no point anyway, as it would be tossed. You don't need an illegal excuse if there is legal justification....but there better be or false arrest & charter violation charges will follow...and it's not worth the aggrivation or the penalty.

Actually you can't.

I'll refer you to the most encompassing case of R v mellenthin.
Coles notes: road stop to check vehicle condition, sobriety, ownership. No problems on any of the above 3. Officer looked through the window and saw a gym bag. Asked what was inside, and saw narcotics. Arrested. Appealed on unreasonable search n seizure.

The second part of what you said is totally correct. IF you smell alcohol, IF you smell weed etc you may proceed. But even the scc has stated:

Quote:

By your reasoning if the Cops stop a car at a counter attack checkpoint and see a machine gun or drugs, they have to let them go because the initial stop was for drunks? The courts do not see it that way.

"programs result in the arbitrary detention of motorists. The programs are justified as a means aimed at reducing the terrible toll of death and injury so often occasioned by impaired drivers or by dangerous vehicles. The primary aim of the program is thus to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of conducting either an unfounded general inquisition or an unreasonable search."

---
Imagine this scenario. If I am driving and I appear to be neither drunk nor high, and my vehicle does not warrant a VI ticket, but you see a backpack in the rear of my vehicle. Would you pursue it as the officer in the above mentioned case did?

I'm understand it from a practical point of view. That there could've been a gun. It could've been monetary proceeds of a crime, hell it could've been a severed head. But I am arguing it from an academic and legal point of view.

Did you have the legal authority - based on any suspicions that a criminal activity had, or will take place - to search that bag?

My main point in the first place, is that MANY officers take that MADD drinking driving counter-attack etc program as a foot in the door to additional criminal investigations that they would not normally have been privy to. What did Justice Sopinka and Cory say?

"Nonetheless, the violation must be considered a serious one. It was conducted as an adjunct to the check stop and was not grounded on any suspicion, let alone a reasonable and probable cause. It is the attempt to extend the random stop programs to include a right to search without warrant or without reasonable grounds that constitutes the serious Charter violation."

nipples · 04-21-2009, 11:21 PM

Quote:

Originally Posted by sho_bc

You write as if Counter-Attack check points are roaming and conducted against random vehicles. Check points are stationary and when working a Counter-Attack check point, I stop each vehicle passing by. As zulutango stated, if there are indicators that there is a different/non-impaired violation of the law, I will investigate that. I won't ask people randomly if they'd mind opening their trunk.

The same goes for any other type of traffic stop. I investigate the reason for the stop and if anything else comes to light during that investigation (such as a joint or roach in the center console) , I will then investigate that as well.

They may not be stationary, but they sure are arbitrary. But that's besides the point. the main point is that road stops result in arbitrary detention of drivers. And to go with that detainment, are they aware of their rights? Forget not that the introduction of the MADD etc roadstops are already considered an infringement of sec 8. HOWEVER, the courts have ruled that it is a justifiable one to save the lives of many on the road at the cost of one man's charter rights.

However, various courts at various times, have drawn the line there. Unless one argues about the right to search all aspects of person and vehicle during border crossings. but then again, that's protection of the entire nation against one man's charter. blah blah blah.

If there are indicators, fine. But it's already been shown that, despite the success(?) of MADD, RIDE, etc programs, many officers still continue to use those programs as a means to further and subsequent investigations for which they originally had no grounds to do in the first place.

BNR32_Coupe · 04-22-2009, 01:26 AM

I thought searching the vehicle on the grounds of smelling marijuana is illegal. I read an article that somebody posted on RS awhile ago about some guy with a huge amount of marijuana in his car successfully appealed drug charges after mentioning how the officer wouldve never found it if he didnt claim he smelled marijuana.

By searching on the grounds of smelling dope is an invasion of privacy I believe, as any cop can say they smell dope on a person, like a hot chick, then give her a full body search. The smell could be the persons natural body odor mixed with cologne/perfume, skunk, etc. It could be anything. But when you see a marijuana shrub poking out the guys back seats, well, what are the chances its just hemp lol

impactX · 04-22-2009, 03:07 AM

Quote:

Originally Posted by BNR32_Coupe

I thought searching the vehicle on the grounds of smelling marijuana is illegal. I read an article that somebody posted on RS awhile ago about some guy with a huge amount of marijuana in his car successfully appealed drug charges after mentioning how the officer wouldve never found it if he didnt claim he smelled marijuana.

By searching on the grounds of smelling dope is an invasion of privacy I believe, as any cop can say they smell dope on a person, like a hot chick, then give her a full body search. The smell could be the persons natural body odor mixed with cologne/perfume, skunk, etc. It could be anything. But when you see a marijuana shrub poking out the guys back seats, well, what are the chances its just hemp lol

1) Try reading that case again, it's a case of burnt weed vs fresh weed.

2) There're departmental policies governing the search methods.

sho_bc · 04-22-2009, 06:26 AM

Quote:

If there are indicators, fine. But it's already been shown that, despite the success(?) of MADD, RIDE, etc programs, many officers still continue to use those programs as a means to further and subsequent investigations for which they originally had no grounds to do in the first place

nipples, I think you're distracted by a perception that police can and do pull over random vehicles and search the vehicle and occupants however they please, whether there is a legal reason to pull the vehicle and search it or not, and that some police use Counter-Attack programs to facilitate such arbitrary searches.

All the case law you bring up is quite valid, though you're warping the context to suite your point of view. Any police officer worth his or her weight would be attentive to anything and everything going on within a vehicle while conducting a traffic stop or a Counter-Attack road block. If that includes the fact that there is an overwhelming odour of fresh marijuana in the vehicle, that police officer better be asking that driver to pull to the side and conducting a CDSA investigation. Its not so different as catching prohibited and unlicenced drivers in the same road block or traffic stop.

zulutango · 04-22-2009, 08:30 AM

"If there are indicators, fine. But it's already been shown that, despite the success(?) of MADD, RIDE, etc programs, many officers still continue to use those programs as a means to further and subsequent investigations for which they originally had no grounds to do in the first place. "

And as I said above, IF they do and use that to enter into investigation WITHOUT having RPGs, do not articulate their grounds and are subsequently found to be illegal, they personally face legal santions, civil sactions and departmental penalties as well...so WHY bother? If any LEO does this, specially with the weak court penalties out here in California North, they are asking for trouble.

BlackZRoadster · 04-22-2009, 08:40 AM

Just one dumb question about random search and arrest

What if for no reason a cop just pulls over a car randomly , and inside finds a dead body. Would that case be thrown out if the cop admitted he just had nothing to do and randomly pulled over a car/truck? If the cop was dumb enough to say he randomly pulled someone over?

zulutango · 04-22-2009, 08:55 AM

You don't just pull people over randomly. You stop the vehicle for any/all of the areas I listed above. If it was as you suggested, completely 100% groundless , for no reason at all...I can see huge difficulties.

BNR32_Coupe · 04-22-2009, 09:52 AM

Quote:

Originally Posted by BlackZRoadster

Just one dumb question about random search and arrest

What if for no reason a cop just pulls over a car randomly , and inside finds a dead body. Would that case be thrown out if the cop admitted he just had nothing to do and randomly pulled over a car/truck? If the cop was dumb enough to say he randomly pulled someone over?

Where do you draw the line on invading privacy? Dead bodies? Smells like it could be marijuana? Person seems like he could be high? Person seems kinda nervous? Or just straight up searching people for no reason? That would suck "hey hunnie, sorry I was late, I got pulled over and full body searched twice on my way here."

And why stop at searching a persons vehicle, aka property? Why not search their stationary piece of property, aka homes, for drugs or dead bodies? You smell marijuana in that house over there too right? ok lets go search every corner of it. nothing here, how about that house?

zulutango · 04-22-2009, 04:18 PM

With all your paranoia and hatred for the fact that Police are permitted to do certain things under law, when justified and articulated....makes me wonder why you are so paranoid. Are you a BCCLU or Pivot Legal Society member? You know, the guys who came out of the woodwork to help "restore" the cell phone pictures of the VPD shooting...because the public "has a right to know". Then when 2 independent videos are found and when an internal memo discusses the contents that exonerate the shooting...now they say that releasing this has prejudiced the investigation?

Go back through the Police response to this discussion. The law DOES permit search and seizure, the Charter decides if it was done legally. If it was legal, the seized items and all that comes from it, are admissible in court. If the law was NOT followed then the individual officer and his employer get thrown to the wolves, and rightly so. If you disagree, then change the laws in Canada. That is how they exist right now and we all have to live by them...you, me and Police on the job.