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Brihard said:any competent police officer
Much like the military, its not the competent officers I'm worried about. :Tin-Foil-Hat:
Brihard said:any competent police officer
Brihard said:Wrong again. My concern is more with deterring impaired drivers. I want people to be scared to drive drunk, because so far far too many haven't been. I want that person to take an Uber, or drink a couple less drinks, and to never cross my path that day. I'd like drunk driving to not be a thing. ...
Brihard said:Doubful. The circumstances you describe wouldn't allow a breath sample demand anyway. More to the point, any competent police officer is not going to try to build an impaired out of something that thin.
Once again police cannot simply show up at your house later on after you've been driving, and, without evidence that you were driving with alcohol in your body (and it must have been within three hours), demand a sample from you. Random samples without reasonable suspicion must be while you're driving. The new law creates no new power whatsoever for police to demand breath samples in any context other than someone presently operating a motor vehicle. Now, if you're operating your car in your living room, a breath sample might be permissible and perhaps even a good idea...
meni0n said:Really? Seems to me cops did exactly what you describe...
https://globalnews.ca/news/5326941/nanaimo-woman-wins-court-challenge-breathalyzer/
There's been a few other cases in BC and NB about people with disability unable to blow hard enough and getting suspensions even though they had medical proof...
meni0n said:Clearly the judge believed her version of events so I would say the officer had no reasonable grounds or suspicion.
tomahawk6 said:Sounds like something California or New York would do despite legal protections enjoyed at home. Of course it would end up with the Supreme Court. I guess Canadians don't have similar protections ?
Brihard said:Oh, we do. Circumstances where police can enter a residence without invitation are deliberately quite limited, and the courts uphold that strongly.
tomahawk6 said:Good to know.Thx
[21] Given the clarity and strength of the above common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry. These so-called “exceptions” to the general rule include the following:
• Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”. See: R. v. Macooh (1993), 1993 CanLII 107 (SCC), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 2007 ONCA 824 (CanLII), 226 C.C.C. (3d) 289 (Ont. C.A.);
• Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger. See: R. v. Godoy (1999), 1999 CanLII 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 2003 CanLII 20263 (ON CA), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 1984 CanLII 2586 (SK CA), 12 C.C.C. (3d) 372 (Sask. C.A.);
• Where the police enter the premises in order to effect the arrest of a resident. In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter. However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry. See: Eccles v. Bourque, supra; R. v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.);
• Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry. See: R. v. Silveira (1995), 1995 CanLII 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47. However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met. See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code. In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;
• Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.
Source: R. v. Zargar, 2014 ONSC 1415 (CanLII), par. 21, http://canlii.ca/t/g62dn#par21, retrieved on 2019-06-02.
Remius said:Was to cut him a break, one certain culture and uniformed member to another or so he said.
Brihard said:Doubful. The circumstances you describe wouldn't allow a breath sample demand anyway. More to the point, any competent police officer is not going to try to build an impaired out of something that thin.
Brihard said:Let's say police get that call. The caller describes the alleged drunk driver by name, describes vehicle, describes address. Cops get there some time later.
Police do not have the driver operating. Mandatory Alcohol Screening per S.320.27(2) C.C. is not in effect. The power police have is that in S.320.27(1). It is exactly the same as it always have been. The lowest threshold to get a sample would be by Approved Screening Device. The threshold for that, as I described, is polcie must have reasonable suspicion that the person has operated a conveyance with alcohol in their body within the past three hours.
'Reasonable suspicion' isn't a hunch or a tip. There's tons of case law on this. Generally the three accepted grounds for this are an admission to drinking before/during operating; a smell of beverage alcohol on the breath of someone currently operating a vehicle, or a clear and credible witness to a person consuming alcohol prior to operating. The police officer in this case wouldn't have anything close to what a judge would deem 'reasonable suspicion'. It would fail the objective suspicion test.
ballz said:Let's not pretend that all LEOs are competent and/or professional and/or can't be a little too gungho on any given day, and that an increasingly low bar for intrusion into a private citizen's life who has done nothing can't and isn't going to lead to an unjustified intrusion into a law-abiding citizen's life. Will a person who has done nothing wrong get convicted of anything in our system? Unlikely. But that doesn't mean the Crown can't ruin their life and finances for a while.
Brihard said:You've got my motivations all wrong on this. Not accepting collateral damage to innocent people is exactly what this whole thing is about. It only takes one accident scene with a drunk driver and a wrecked child seat in a car to develop pretty strong opinions on this.
Brihard said:It only takes one accident scene with a drunk driver and a wrecked child seat in a car to develop pretty strong opinions on this.
ballz said:That's a little bit of standing on someone's grave, but keeping it cordial I'll try not to judge given the emotional nature of the issue. Your strong feelings on the issue are what's not allowing you to give any weight to the flaws inherent in this law, which is exactly what I meant by stating "you just want to catch more drunk drivers regardless of the collateral damage" (obviously referring to those who will face devastating legal action for no reason). Like I and others have said throughout this thread, there are far better ways to deal with the issue of obstruction, which seems to be the only argument in support of this law. One better way to deal with the issue of obstruction.... would be to deal with the issue of obstruction.
Infanteer said:I still want to know what prompted the police to show up at the house in the first place. That would settle a lot of the discussion.
The officers told Lowrie they had received an anonymous complaint that she had consumed “multiple alcoholic beverages” before getting into a pickup and driving away from the restaurant at 4:53 p.m.
Infanteer said:I still want to know what prompted the police to show up at the house in the first place. That would settle a lot of the discussion.