# Police in Canada can now demand breath samples in bars, at home - Global News



## dimsum (10 Jan 2019)

> It may sound unbelievable, but Canada’s revised laws on impaired driving could see police demand breath samples from people in bars, restaurants, or even at home. And if you say no, you could be arrested, face a criminal record, ordered to pay a fine, and subjected to a driving suspension.
> 
> You could be in violation of the impaired driving laws even two hours after you’ve been driving. Now, the onus is on drivers to prove they weren’t impaired when they were on the road.



https://globalnews.ca/news/4832762/impaired-driving-canada-breath-samples/?fbclid=IwAR0QkuDBq44eaCOQUig4J0dFDt5hjVFCEF07c6m7hlWPW8sddvccuvEeb2I


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## ModlrMike (10 Jan 2019)

So much for the presumption of innocence.


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## FJAG (10 Jan 2019)

That's a really poor article and misses the point on so many levels.

For anyone who wants to see what the new law really said, look here:

https://laws-lois.justice.gc.ca/eng/acts/C-46/page-57.html#docCont

 :cheers:


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## brihard (10 Jan 2019)

Yeah, no... There are a number of inaccuracies in this. Go figure they didn't actually seem to interview any police officers working in traffic units on this.

First off, it's not an amendment to S.253 C.C. That section, and all of the criminal code driving offences were repealed and replaced wholesale when Bill C-46 took effect.

What is being referred to here is S.320.14 C.C., the offence for impaired driving, and in this case through the mechanism of 'over 80'. It's illegal to be over 80 within two hours after driving, BUT not if you consumed the alcohol after driving, you had no reasonable expectation that you would be required to provide a breath sample, and your BAC is consistent with alcohol consumed post driving. Sorry, I know that's a bit to unwrap, and so I'll break it down in context.

Under the old laws prior to December 18th, someone who, say, got in a collision or hit someone while driving impaired could effectively foul an impaired driving investigation by firing back some alcohol after driving / after the collision. Because police needed to prove the degree of impairment at the time of driving, any intervening drinks would completely foul this. There have been plenty of cases where someone drives drunk, crashes their car, and quickly fires back more drinks before police get there. They are consuming alcohol specifically to obstruct a polcie impaired driving investigation.

Another not uncommon case (I've lost an impaired in court in part to exactly this) is where someone would get stopped by police, be arrested for impaired with or without a roadside sample, and get brought in for breath samples on the approved instrument that can support 'over 80' charges. When it goes to court, they get a friend to testify that they slammed two or three quick drinks immediately before leaving the bar, and they argue that at the _time they were pulled over_ they weren't actually over the BAC limit, but that the alcohol in their stomach entered their blood stream and pushed them over the legal BAC limit in the time it took to get them to the police station for samples. It's a friggin' absurdity, but it happens and impaired drivers have gotten away with it.

The new law closes these loopholes. If you're in an accident, you have a 'reasonable expectation' that you may need to provide breath samples, so you won't fall under the exceptions this law defines. If you drank immediately before driving, likewise you don't fall into the 'consumed after driving and the BAC is consistent with same' exception.

The law grants police no new powers to enter a residence or dwelling. They cannot force their way in and demand breath samples (other than in the case of fresh pursuit in which case you're likely arrested for flight form police anyway). While polcec may go to a residence to speak to the driver of a vehicle involved in a motor vehicle collision, they will still be bound by the old standard of 'reasonable suspicion' to demand a breath sample in the field. The mandatory alcohol screening (no suspicion needed) only applies to people presently operating a vehicle. Police are not suddenly empowered to forcibly enter a house because they suspect an impaired driver is in there, and there is recent case law to that effect even in the instance of someone who DID come to the door (hammered), and who police merely prevented from closing the door. He was acquitted based on police not respecting the very high standard needed to enter a residence. 

Likewise, yes, police could go into a bar and speak to someone suspected of driving impaired. They may in the course of that form reasonable suspicion and get a sample from a screening device, or they may find someone sufficiently blatantly drunk to arrest them outright and bring them to the station for full samples. But they could do that anyway; a bar or restaurant is a place to which the public generally has access and polcie are generally free to walk in in the course of an investigation and to approach and speak to someone if need be. I have gone into a Boston Pizza minutes after a drunk driver got there, found her, spoke with her, determined she was impaired and arrested her for impaired driving (and had no problem with that one sticking in court). This has always been something that can happen.

Police are still bound by all the same standards that apply to grounds for arrest, grounds to demand breath samples, grounds to enter a private residence, etc etc. This article is misreporting what is going on with the new provisions to the law. The reporter has not done his homework adequately.


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## OldTanker (10 Jan 2019)

Brihard, thanks for this clarification.


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## BDTyre (10 Jan 2019)

Brihard said:
			
		

> Under the old laws prior to December 18th, someone who, say, got in a collision or hit someone while driving impaired could effectively foul an impaired driving investigation by firing back some alcohol after driving / after the collision. Because police needed to prove the degree of impairment at the time of driving, any intervening drinks would completely foul this. There have been plenty of cases where someone drives drunk, crashes their car, and quickly fires back more drinks before police get there. They are consuming alcohol specifically to obstruct a polcie impaired driving investigation.



Likely this came about due in part to the Monty Robinson case; Robinson, an off-duty RCMP officer, hit and killed a motorcyclist while driving. He left the scene (ostensibly to protect his children from viewing the accident) but gave his license to a witness (to defeat a charge of leaving the scene) and went immediately home and drank a few shots of vodka (to foul any Breathalyzer). He then returned to the scene.


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## brihard (10 Jan 2019)

Yes, probably one of the many cases that informed this, and a great example of how such investigations can be fouled. Robinson ate a criminal conviction for obstruction, but he dodged the impaired driving charge. There have been many, many others, and this reform the the law is important in defeating some very BS defenses.


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## Remius (10 Jan 2019)

Brihard said:
			
		

> Yes, probably one of the many cases that informed this, and a great example of how such investigations can be fouled. Robinson ate a criminal conviction for obstruction, but he dodged the impaired driving charge. There have been many, many others, and this reform the the law is important in defeating some very BS defenses.



I have a former colleague that was counselled by an on scene police officer to go to the nearby bar and take a shot to calm his nerves before giving the test...long story but he beat the charge.  Cost him close to 30, 000 grand when it was all said and done though.


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## brihard (10 Jan 2019)

Remius said:
			
		

> I have a former colleague that was counselled by an on scene police officer to go to the nearby bar and take a shot to calm his nerves before giving the test...long story but he beat the charge.  Cost him close to 30, 000 grand when it was all said and done though.



Your former colleague lied to you and I’m astounded you’d fall for that. Not a chance a police officer would tell someone to do that, for many, many reasons.


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## Remius (10 Jan 2019)

Brihard said:
			
		

> Your former colleague lied to you and I’m astounded you’d fall for that. Not a chance a police officer would tell someone to do that, for many, many reasons.



Like I said long story.  Was to cut him a break, one certain culture and uniformed member to another or so he said.  Also told him to ask for an interpreter etc etc.  I won't get into it here but can pm you the details.  Maybe he lied to me.  Just seems weird that he told me how he was able to beat the charge.  Why lie about that and not just lie about the whole thing to start.  Then again he was very drunk when it happened.


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## brihard (10 Jan 2019)

Far more likely he got caught driving drunk, beat it on a technicality, and came up with a BS story to explain why he would have blown over, namely that the cop told him to drink right before the sample. If the cop was going to cut him a break he would have given him a short roadside suspension, knowing that wouldn’t be questioned. I have done that exactly once, where the driver I caught was genuinely fleeing a very dangerous situation. What you described would be a ludicrous and overly complex way to cut someone a break and would definitely result in the officer’s conduct being investigated and them likely facing professional misconduct consequences.


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## Remius (10 Jan 2019)

Brihard said:
			
		

> Far more likely he got caught driving drunk, beat it on a technicality, and came up with a BS story to explain why he would have blown over, namely that the cop told him to drink right before the sample. If the cop was going to cut him a break he would have given him a short roadside suspension, knowing that wouldn’t be questioned. I have done that exactly once, where the driver I caught was genuinely fleeing a very dangerous situation. What you described would be a ludicrous and overly complex way to cut someone a break and would definitely result in the officer’s conduct being investigated and them likely facing professional misconduct consequences.



Again, long story.  He didn't use the excuse that a cop told him to do that.  He used the BS story about taking a few shots after he drove off a ramp and flipped his vehicle (not his but like I said long story).  He later told us that the on scene police officer told him to use that excuse to help him out. 

PM incomimg when I get time to write it out.


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## brihard (10 Jan 2019)

Ah, ok, I misunderstood. As you present it now, a great example of exactly the kind of obstruction to an investigation that the new law renders ineffective.


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## Petard (11 Jan 2019)

This seems to be the one firing up the water cooler talk/social media rants etc.

The debate seems to be the thin probable cause in this case, and if any is needed at all

https://torontosun.com/news/local-news/mandel-cop-pulls-over-senior-for-returning-too-many-empty-beer-bottles


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## FJAG (11 Jan 2019)

I might be presumptuous in this (because there are stupid crown attorneys too) but if any cop came with a charge that is based on his belief that too many empties being returned, without any other facts, constitutes probable cause for demanding a breath test then a reasonably intelligent crown would tell him to pound salt.

 :brickwall:


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## Haggis (11 Jan 2019)

FJAG said:
			
		

> I might be presumptuous in this (because there are stupid crown attorneys too) but if any cop came with a charge that is based on his belief that too many empties being returned, without any other facts, constitutes probable cause for demanding a breath test then a reasonably intelligent crown would tell him to pound salt.



My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.


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## ballz (11 Jan 2019)

Haggis said:
			
		

> My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.



Which is easy to abuse. Story time [helmets on]:

While in Borden on a task this fall, a bunch of us went to a dessert bar in Barrie where many of us had a few drinks. I drove my rental car with a few us in and one of the girls who *did not drink a sip of alcohol* drove it back (this was pre-arranged although I was unsure if I would drink or not). I think I only had 2 maybe 3 drinks over the course of a 2-hour deal and wasn't feeling any effects (I am 200+ lbs and can hold my alcohol), but why bother risking it, and she drove back as planned.

On our way into the base, there was a check stop. No issues, we don't care, we've got a sober driver anyway, this ought to be quick, right? As we pull up the MP asks the driver if she had been drinking "No, they did, I haven't." Has she consumed cannibus (the law had just been passed) "No." _Then why were you swerving back there on the road?_

Okay, this was pure BS. I was in the passenger seat, also sober, she did not swerve anywhere. This was a question that essentially falsely accused the person of having done something wrong to see what their response would be. That is entirely unprofessional and an entirely made-up premise such as that can easily be used to intrude.

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 convincted of anything in our system? Unlikely. But that doesn't mean the Crown can't ruin their life and finances for a while.

There are other problems pointed out about this 2-hour rule by some lawyers that will undoubtedly cause issues. Let's say you come home, sober, and begin drinking. A vindictive person in your life (ex, neighbour, whatever) calls the cops and says you just arrived and were intoxicated when you got out of the vehicle at 5pm. The police show up and breathalyze you at 6:45pm and you blow over... you're now guilty until you prove otherwise? How can one possibly prove that they weren't drunk 2 hours ago? Same goes for arriving at a bar and beginning to drink, etc.


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## JesseWZ (11 Jan 2019)

Haggis said:
			
		

> My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.



More on that - the roadside test was never reasonable grounds to believe a crime was committed (impaired driving). It was reasonable grounds to suspect (a much lower standard) alcohol was present in someone who had been driving or in care and control of a motor vehicle. A fail on the ASD test would then give the officer reasonable grounds to believe the crime had been committed.

Where I’m working now I’m not too up to speed on the new scheme. Brihards summary was pretty thorough and I agree there used to be a lot of “outs” for impaired driving accused. Statistically speaking, police in Canada probably saw more acquittals for impaired driving then any other crime, much of them to do with the technical scheme of the legislation.


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## brihard (11 Jan 2019)

Haggis said:
			
		

> My understanding, based on Brihard's post, above, ant talking to a couple of breath techs at work is that reasonable grounds are no longer required to administer an ASD test at the roadside.  The officer would still have to articulate his reasons for the stop (i.e. general enforcement/situational factors) but not the demand for the test.



Precisely. An officer who is in contact with a driver who is operating (to include care and control of) a vehicle, in the course of their duties (traffic stop, RIDE check, investigating an accident etc) can demand an Approved Screening Device (ASD- roadside breathalyzer) sample. That sample is NOT what leads to charges, but if you blow a 'fail', then you can be arrested or detained for more samples on an approved instrument that can lead to charges if you blow over on that.

Example: It's 1:30 A.M. on a Saturday morning, I see a car speeding and change lanes without signalling. I pull it over. There are several occupants leaving an entertainment area downtown, the driver says he's the DD, and does not admit drinking. I cannot smell alcohol off his breath. I have no objective suspicion of alcohl in his body. I can demand a roadside breath sample to verify sobriety. My traffic stop was legal exercise of my duties under the Highway Traffic Act, and now the Crim Code lets me do an ASD test.

Outside of the roadside context, an officer who wants to administer an ASD still needs reasonable suspicion that a person has operated a motor vehicle with alcohol in their body within the past three hours. 

Example: I come upon the scene of a single vehicle accident. A car has left the road, struck a pole and is not driveable. The driver is outside of the vehicle. The driver is not 'operating' the vehicle at this time, I can't do mandatory alcohol screening without suspicion. A witness confirms for me that this is the person they saw exit the driver's seat at the time of the crash and that they've stayed on scene throughout. I ask the driver if they've had any alcohol. They say no, but I smell alcohol on their breath. I have reasonable suspicion that they've operated a motor vehicle with alcohol in their body in the last three hours. I can do a roadside ASD test. They provide a sample and blow a 'fail'. I now have reasonable grounds to believe that their ability to operate a conveyance is impaired by alcohol, and I can arrest and bring them back to the station for breath samples that could lead to charges.

Example: I get a tip about a vehicle leaving a bar mid day, the driver has been drinking, but no ID on the driver and the description is thin. I find the vehicle parked at a different location a few minutes later, and as I'm checking out the vehicle the driver comes out of a store. I talk to him, ask if he was at the bar and if he had any alcohol. He denies same. I don't have him operating the motor vehicle, and I don't have reasonable suspicion that he has alcohol in his body due to the vagueness of the tip. I cannot administer a roadside test.

Example: I get a call for a hit and run. A witness describes a certain vehicle and gives the license plate, and they describe the male they saw get out of the car, look at the damage, then get back in and leave. They describe him as unsteady on his feet. I run the license plate and get a home address. I get to the address and find a vehicle in the driveway. The tailpipe is warm. I knock on the door, and a male comes to the door. I tell him his car was involved in an accident and ask him to step outside to talk to me. He steps outside, I show him the damage and ask what happened. He said he doesn't know. I note that he has a smell of beverage alcohol on his breath and is a bit unsteady on his feet. He matches the description given. I have reasonable suspicion that he was operating a motor vehicle in the past three hours with alcohol in his body, and I can demand an ASD sample. Now, had he not come to the door, I can't force my way in. Had he opened the door but not stepped out I cannot force him to come outside. I have no new powers here.

Finally, if someone is clearly impaired, we don't need to do an ASD test roadside. If we already have reasonable grounds to believe they're impaired, we can go right to demanding breath samples at the police station, and that's what will determine charges. An ASD test is a mechanism that lets us turn 'reasonable suspicion' into 'reasonable grounds'. It gives us more evidence to work with, and helps to rule out other things that could cause symptoms resembling impairment.

The removal of 'reasonable suspicion' as a requirement for ASD tests roadside is the result of a lot of cases where someone is pulled over, blows an ASD fail, blows over 80 at the station, and is charged, but the case is ultiamtely thrown out because the judge determines that the police officer did not have sufficient grounds to demand the ASD test. 'Suspicion' isn't merely 'suspicion'. I had a tip of a vehicle leaving a bar, driver had been drinking. I found it 18 minutes later, the driver told me he "couldn't recall" if he had been at the bar and "couldn't recall" if he had consumed any alcohol. I couldn't smell anything on his breath it was windy outside. The complainant hadn't IDed the driver. If he'd just said 'Yeah I was there but I only had coffee", I would have let him go on his way. It was the BS answer of not remembering if he was just at a bar that caused me suspicion. I administered an ASD, he failed, and then he blew .120 or so at the station. I charged him with over 80. It got tossed in court because my suspicion was not deemed to be 'objectively reasonable. As much as it chafed, the judge was pretty kind to me in his written decision, and it was a correct decision under law at the time. But a drunk driver got off as a result. 

The new laws remove that requirement, and turn the focus more back to the simple question of whether a driver was impaired or not. The mandatory roadside screenings also provide us a deterrent tool. We don't have to administer it at every traffics top, and we don't. I've used it maybe 5 or 6 times since the 18th. It's a great tool for testing novice drivers on probationary licenses who aren't allowed to have any BAC as well.

Unquestionably there are going to be errors and overreaches by individual police officers who maybe don't thoroughly understand what the new laws do and don't do. There will also be irresponsibly sloppy news stories that misrepresent what's going on, and there are a ton of people with vested interests who are happy to add their two cents. All in all though this is a tool that should significantly simplify and strengthen the detection and prosecution of impaired driving.

The true measure of the efficacy of a police service is not the crimes that are detected, but the crimes that never happen because they are deterred from happening in the first place. We will see both as a result of this. There have already been a number of people caught driving impaired who would have been undetected under the old system. Every one of these was a potential hazard to other people on the road.I look forward to a couple years from now when we have some solid data to back this up, as other countries do.


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## brihard (11 Jan 2019)

ballz said:
			
		

> There are other problems pointed out about this 2-hour rule by some lawyers that will undoubtedly cause issues. Let's say you come home, sober, and begin drinking. A vindictive person in your life (ex, neighbour, whatever) calls the cops and says you just arrived and were intoxicated when you got out of the vehicle at 5pm. The police show up and breathalyze you at 6:45pm and you blow over... you're now guilty until you prove otherwise? How can one possibly prove that they weren't drunk 2 hours ago? Same goes for arriving at a bar and beginning to drink, etc.



I'll address this since it's the most annoying fiction in that whole garbage news story. Bear in mind that it was a hypothetical postulated by a lawyer whose business is greatly dependent on a number of the technicality defences that have now been closed.

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.

A person has not committed an 'over 80' offense if the consumed alcohol after operating, AND they had no reasonable expectation that they would be expected to provide samples, AND their BAC if tested is consistent (factoring in subsequent drinks consumed) with them having been under the legal limit at the time of driving.

That's wordy, but why it matters is to cover situations like the hit and run I alluded to above. Police get a hit and run, show up at the house and find the car still warm, driver comes to the door and steps outside and has definitely been drinking. This isn't a guy who simply drove home from the bar and nothing bad happened- he got in an accident. It's reasonable to expect he might be investigated and might have to provide samples. This criminalizes the practices of drinking after an accident to obstruct an impaired driving investigation.

There will definitely be some case law around what is meant by "they had no reasonable expectation that they would be required to provide a sample of breath or blood". There will be case law around what the standard of proof is for a driver to prove their post-driving consumption to rule out having been impaired ahead of time. Every single bit of this new system for impaired driving enforcement is going to get tested in court across a variety of cases that will be soon (if not already) starting to get prosecuted. It is not, however, nearly so flawed or prone to abuses as some recent news stories would have you believe. Again, pay attention to who that reporter *did* speak to, and who they didn't.


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## JesseWZ (11 Jan 2019)

ballz said:
			
		

> Which is easy to abuse. Story time [helmets on]:
> 
> On our way into the base, there was a check stop. No issues, we don't care, we've got a sober driver anyway, this ought to be quick, right? As we pull up the MP asks the driver if she had been drinking "No, they did, I haven't." Has she consumed cannibus (the law had just been passed) "No." _Then why were you swerving back there on the road?_
> 
> Okay, this was pure BS. I was in the passenger seat, also sober, she did not swerve anywhere. This was a question that essentially falsely accused the person of having done something wrong to see what their response would be. That is entirely unprofessional and an entirely made-up premise such as that can easily be used to intrude.



I'm curious what you believe the driver was accused of in your story? There are lots of legitimate reasons to swerve in the road that wont result in criminal charges. (Debris, potholes, animals, etc). Was the driver put on an ASD? We're they arrested? Given a violation ticket? We're they charged? Given an administrative license suspension? If the answer is NO, it sounds like the law worked as it should and an innocent person was not charged with impaired driving. From what it sounds like, all the MPs did was ask a question based on their subjective observation of a vehicle moving from their stationary position.

If you truly believe the conduct of the roadside MPs was not on, we have both an internal Professional Standards organization and an external Military Police Complaints Commission for you to air your grievances to. MPs are duty bound and have lawful orders to assist *anyone* in how to file a complaint with either organization.


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## dapaterson (11 Jan 2019)

Brihard said:
			
		

> Example: It's 1:30 A.M. on a Saturday morning, I see a car speeding and change lanes without signalling.



In Montreal, you'd get pulled over as suspicious if you weren't speeding and did signal.


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## ballz (11 Jan 2019)

JesseWZ said:
			
		

> I'm curious what you believe the driver was accused of in your story? There are lots of legitimate reasons to swerve in the road that wont result in criminal charges. (Debris, potholes, animals, etc). Was the driver put on an ASD? We're they arrested? Given a violation ticket? We're they charged? Given an administrative license suspension? If the answer is NO, it sounds like the law worked as it should and an innocent person was not charged with impaired driving. From what it sounds like, all the MPs did was ask a question based on their subjective observation of a vehicle moving from their stationary position.



She *wasn't* swerving over the road, and was told she was by a law-enforcement officer at a check stop who is testing for impairment that she was. If you are truly "curious" about what is being implied by someone who is being deliberately untruthful about her driving in this scenario, I suggest you think deeply about what he could possibly be getting at and if you can't still figure it out, phone a friend.

All the various legitimate reasons to make a swerving manouevre are irrelevant when you are being accused of swerving when you in fact did not make any such manouevre.



			
				JesseWZ said:
			
		

> If you truly believe the conduct of the roadside MPs was not on, we have both an internal Professional Standards organization and an external Military Police Complaints Commission for you to air your grievances to. MPs are duty bound and have lawful orders to assist *anyone* in how to file a complaint with either organization.



Yeah yeah yeah, we all know how that would go...
Complainant: "He said I was swerving across the road and it's not true." 
Subject of complaint: "I saw her swerving, seriously."
12 months later... "Complaint not substantiated."


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## ballz (11 Jan 2019)

Brihard said:
			
		

> I'll address this since it's the most annoying fiction in that whole garbage news story. Bear in mind that it was a hypothetical postulated by a lawyer whose business is greatly dependent on a number of the technicality defences that have now been closed.
> 
> 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.
> 
> ...



I get the desire to close the loophole on cheap "outs" when you've caused an accident. Could this not have been better solved by, if anything, a small change to the "obstruction" laws / sentences? I'm sure it was tried before but I'm pretty surprised those who fled the scene or sat at the scene and drank fireball were not able to be found guilty of obstruction as it was.


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## brihard (11 Jan 2019)

ballz said:
			
		

> I get the desire to close the loophole on cheap "outs" when you've caused an accident. Could this not have been better solved by, if anything, a small change to the "obstruction" laws / sentences? I'm sure it was tried before but I'm pretty surprised those who fled the scene or sat at the scene and drank fireball were not able to be found guilty of obstruction as it was.



It has to be pretty blatant to prove obstruction. There have been convictions of that, and there have also been others who got away with it. The new laws most directly target the problem; intent to obstruct the investigation doesn't need to be proven. It's the dangerous behaviour itself that is criminalized.


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## JesseWZ (11 Jan 2019)

ballz said:
			
		

> She *wasn't* swerving over the road, and was told she was by a law-enforcement officer at a check stop who is testing for impairment that she was. If you are truly "curious" about what is being implied by someone who is being deliberately untruthful about her driving in this scenario, I suggest you think deeply about what he could possibly be getting at and if you can't still figure it out, phone a friend.
> 
> All the various legitimate reasons to make a swerving manouevre are irrelevant when you are being accused of swerving when you in fact did not make any such manouevre.
> 
> ...



I'm not trying to get under your skin or rankle you mate. I do believe in the complaint process. You can blow it off all you want as a foregone conclusion, but that's not what it will be. Visit the MPCC site, lots of case summaries on there where complaints were substantiated. The MPCC is pretty thorough and has no loyalty to the branch.

To talk more about your war story...
In a legal context saying someone was "accused of something" _*means something.*_ Was she accused of a crime? It sounds like the MP asked if she was swerving, which she denied, and then the story ends. She's not being accused of a crime - only of swerving. I can only assume nothing further happened which caused an issue at the stop because your narrative ends there. Maybe the MP did get it wrong and didn't see her swerving, I wasn't there, but then so what? If no negative consequences occurred, I'm not sure what the issue is. Maybe the MP even lied about the swerving, but to what end? If she blew a 0 on the ASD like she would have if she hadn't been drinking, that would've been the end of it anyway.

To play the devil's advocate... - Let's say you're a police officer at a roadside sobriety check. A check that has been ruled lawful by the SCC due to the extreme danger to everyone about impaired driving. You're checking pretty much every car that comes your way. A car full of people, some who have been drinking pulls up to your stop. Driver says she hasn't been drinking, but you smell alcohol in the vehicle (because of all the drunk passengers) You know from your patrol experience, that sometimes people don't designate drivers and they pick the least drunk person to drive. You *could* ask the driver to step out in order to see if there is alcohol on her breath (begging the argument of further shame to the driver to get out at a roadside stop)... or perhaps you ask a question to get a response and smell her breath and ensure she is being truthful about consumption. 

Lets say your a lazy MP, and you don't want to process an impaired driver, so you ignore some of the little red warning bells in your head. That driver carries on down the road and hits a school bus of orphan nuns - that's on the MP. Due diligence is important.

People lie to the police *all the time.* I've arrested a number of impaired drivers and *every single one* lied to me about whether they had had alcohol. Again, I'm not trying to get under your skin, or defend the actions of an incident I know .5 of a story about - simply trying to understand what occurred that has caused you to remember this story and feel compelled to retell it.


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## ballz (11 Jan 2019)

JesseWZ said:
			
		

> To play the devil's advocate... - Let's say you're a police officer at a roadside sobriety check. A check that has been ruled lawful by the SCC due to the extreme danger to everyone about impaired driving. You're checking pretty much every car that comes your way. A car full of people, some who have been drinking pulls up to your stop. Driver says she hasn't been drinking, but you smell alcohol in the vehicle (because of all the drunk passengers) You know from your patrol experience, that sometimes people don't designate drivers and they pick the least drunk person to drive. You *could* ask the driver to step out in order to see if there is alcohol on her breath (begging the argument of further shame to the driver to get out at a roadside stop)...



If he would have said "I smell alcohol in the vehicle and therefore I'm going to administer a breathalyzer" I would have had zero issues with that.

He *made up a lie* that she was swerving. He didn't even have to make it up, as you said, there's a bunch of us in there drinking that had drinks, as was offered up voluntarily by the driver, it's perfectly reasonable that he smells alcohol and wants to test the driver.

It's the fact that he may up a lie about her actions. It's unprofessional. He was literally just being a dick because he could be. I don't  know why that's hard to understand. People's lives have been ruined by an LEO lying about their actions. That's why it's a big deal.



			
				JesseWZ said:
			
		

> It sounds like the MP asked if she was swerving,



No, his exact words were "then why were you swerving on the road back there?" That is not asking if she was, that is accusing her of swerving (not accusing her of a crime, but accusing her of an action nonetheless). That there were no negative consequences of him being as arsehole doesn't change the fact that he was an arsehole. As I said, not all LEOs are competent or professional, and so giving LEOs more and more authority intrude on a law-abiding citizen without any reasonable suspicions, etc, *is* going to lead to more errors / more law-abiding citizens having their day or year ruined.


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## JesseWZ (11 Jan 2019)

I think our sub discussion may have run its course. The only thing I'd add is why assume automatically the LEO is lying or simply being a dick for the sake of being a dick? It portrays a bias. To play devils advocate again, what if the LEO subjectively thought he observed swerving? Maybe his definition of a swerve and yours differ. Maybe he was mistaken. It's not uncommon for drivers approaching a check stop to be nervous and act erratically. There are lots of flashing lights, it can be hard to see. 

He may have been dickish or abrupt in his approach, but it sounds from the half of a story we've got here, like the law was followed and no unnecessary intrusion into the drivers privacy was had. 

Believe it or not, most of the time, there isn't a larger conspiracy by LEO to intrude on an individuals privacy rights for the sake of it. Manufacturing evidence, maintaining a lie, silencing witnesses, all take a huge amount of manpower. It's often more preferable and easier to just enforce the law. /tongue in cheek

And again, despite your misgivings about laying a complaint, that option is on the table for you. 



			
				ballz said:
			
		

> It's the fact that he may up a lie about her actions. It's unprofessional. He was literally just being a dick because he could be. I don't  know why that's hard to understand.





			
				ballz said:
			
		

> I suggest you think deeply about what he could possibly be getting at and if you can't still figure it out, phone a friend...
> Yeah yeah yeah, we all know how that would go...



I'm not quite sure what I've done to ruffle your feathers other than possibly just existing. You posted a narrative which invited response. I responded, with what I think was an open mind. I floated some possibilities about what could have been going on in the MP's head based on my subjective personal experience. I didn't rule out that he/she was a dick - maybe he/she was. I tabled an option for you to get justice for the way you feel you were treated and yet I feel like you are replying contemptibly. 

Should I have just agreed 100% with everything you said no questions asked?


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## ballz (30 May 2019)

Brihard said:
			
		

> I'll address this since it's the most annoying fiction in that whole garbage news story.



Doesn't seem very fiction-like now that it has happened... how would we have ever predicted something like this  :

https://globalnews.ca/news/5326941/nanaimo-woman-wins-court-challenge-breathalyzer/?utm_source=GlobalBC&utm_medium=Facebook&fbclid=IwAR2s7inzWMiqmZh2XFwO7a8KXjNGQLz0nPcpIhCvO5AflI_pl2j8W3GjmLg

Pretty fucking sad state of affairs. How many more people are we going to violate and string them through the legal process because of the Charter violations in this law, before we just throw the garbage out?


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## Infanteer (30 May 2019)

Why did the RCMP show up two hours they arrived at the house?  Can't figure that out from the new story.

But in general, I don't like how the law is constructed, and I feel it'll fail a charter challenge.


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## brihard (30 May 2019)

ballz said:
			
		

> Doesn't seem very fiction-like now that it has happened... how would we have ever predicted something like this  :
> 
> https://globalnews.ca/news/5326941/nanaimo-woman-wins-court-challenge-breathalyzer/?utm_source=GlobalBC&utm_medium=Facebook&fbclid=IwAR2s7inzWMiqmZh2XFwO7a8KXjNGQLz0nPcpIhCvO5AflI_pl2j8W3GjmLg
> 
> Pretty ******* sad state of affairs. How many more people are we going to violate and string them through the legal process because of the Charter violations in this law, before we just throw the garbage out?



I stand by what I said. The original story was garbage, and based off a shoddy understanding of the law. It presented a fiction that someone could be convicted of impaired driving based on police arbitrarily arriving at their house hours after driving and demanding random breath samples. That remains patently untrue to anyone who has paid sufficient attention as to actually understand the law in detail. 

This current news story presents only one side of whatever it was that happened. It does not elucidate on what led police to be arriving at that particular residence to conduct an impaired driving investigation, nor how it was that the specific driver in question was identified. Very clearly there was a sufficiently detailed report to police to cause them concerns leading to a door knock.

The new law does not allow for police to conduct Mandatory Alcohol Screening under S.320.27(2) unless a person is presently operating a motor vehicle. You cannot do a random compulsory demand inside a residence. The only powers that let you demand a breath sample in a residence are those that already existed before the new law came into effect. A police officer following up on a complaint who does not find the driver driving must, before requiring an Approved Screening Device sample be provided, form a reasonable suspicion that the person within the preceding three hours was operating a conveyance with alcohol in their body. An admission to having had one drink at the bar and then driven would suffice for that. It's incumbent on the officer to consider things like intervening drinks, however that doesn't rule out investigation, samples and charges if they have enough info to work with (e.g., how many drinks over what span of time).

Also, not that charges were not laid. This was a proceeding under British Columbia's Immediate Roadside Prohibition. No criminal conviction can result from that it's a purely administrative measure that still has some avenues of appeal- which were successfully exercised in this case.

I don't know any more about the case than what's written in the news, and my knowledge of the law as actually written. I will speculate that one of two things happened:
- The officers misunderstood the application of the new provisions for Mandatory Alcohol Screening and did something they're not allowed to do. That's not a problem inherent in the law, that's a training and supervision issue. This seems, on the test of simplicity, to be the more likely case, because IRPs are reasonably tough to get dismissed. Or:
- The officers acted properly on reasonable suspicion and got an ASD sample, but failed to adequately articulate their observations or evidence in their report, leaving the appeal authority unable to find themselves convinced that the IRP was valid. Definitely possible.

I will further speculate that had this happened in any other province, and presupposing that officers had the necessary reasonable suspicion for an ASD test and the resultant 'fail', they would then have demanded breath samples from an approved instrument, and if samples came in over .08 BAC, charges would have been laid under S.320.14(1)(b), the 'within two hours of driving, over 80' provision. In that case, the defense could argue that their client met the three conditions given in 320.14(5) of 1. Consumed alcohol after ceasing to operate; 2. Had no reasonable expectation tat they would be investigated and required to provide a sample (e.g., hit and run, fled from police), and 3. Their BAC as measured is consistent, given intervening drinks, of having been under the limit at time of driving.

So, as I said- we have one half of a story, and we simply won't get the other half. But none of what I read here, in my fairly informed opinion, suggests to me that what happened is due to any inherent flaw in the new law. Again, to reiterate, because apparently it's necessary to, police have no new legal power to demand a breath sample inside a residence that they did not have before.


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## Infanteer (31 May 2019)

Brihard said:
			
		

> the 'within two hours of driving, over 80' provision.



It's this that I don't like.  Why charge me after for something I did after the fact.  It has nothing to do with impaired driving.


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## brihard (31 May 2019)

Infanteer said:
			
		

> It's this that I don't like.  Why charge me after for something I did after the fact.  It has nothing to do with impaired driving.



I outlined why this is in place and how it would work upthread, with real examples of how this defeats circumstances and defenses that have stymied justice for drunk drivers many times over.


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## ballz (31 May 2019)

Brihard said:
			
		

> Also, not that charges were not laid. This was a proceeding under British Columbia's Immediate Roadside Prohibition. No criminal conviction can result from that it's a purely administrative measure that still has some avenues of appeal- which were successfully exercised in this case.



Your downplaying of the negative consequences this has needlessly had on the person and their family is appalling.



			
				Brihard said:
			
		

> I don't know any more about the case than what's written in the news, and my knowledge of the law as actually written. I will speculate that one of two things happened:
> - The officers misunderstood the application of the new provisions for Mandatory Alcohol Screening and did something they're not allowed to do. That's not a problem inherent in the law, that's a training and supervision issue. This seems, on the test of simplicity, to be the more likely case, because IRPs are reasonably tough to get dismissed. Or:
> - The officers acted properly on reasonable suspicion and got an ASD sample, but failed to adequately articulate their observations or evidence in their report, leaving the appeal authority unable to find themselves convinced that the IRP was valid. Definitely possible.



Neither of those scenarios is acceptable. To err is to be human. To absolve the legislators of culpability because they didn't consider the consequences of human error is unreasonable.

In scenario 2, it's just silly to think two hours after the fact there is any way to prove someone guilty beyond a reasonable doubt of DUI. Making something that shouldn't be a crime (being drunk an hour after you get home) into a crime, in hopes to convict people of an actual crime that you can't prove (DUI) is nuts, and there is nothing supportable about it.



			
				Brihard said:
			
		

> I will further speculate that had this happened in any other province, and presupposing that officers had the necessary reasonable suspicion for an ASD test and the resultant 'fail', they would then have demanded breath samples from an approved instrument, and if samples came in over .08 BAC, charges would have been laid under S.320.14(1)(b), the 'within two hours of driving, over 80' provision. In that case, the defense could argue that their client met the three conditions given in 320.14(5) of 1. Consumed alcohol after ceasing to operate; 2. Had no reasonable expectation tat they would be investigated and required to provide a sample (e.g., hit and run, fled from police), and 3. Their BAC as measured is consistent, given intervening drinks, of having been under the limit at time of driving.



It's pretty sad scary that you see nothing wrong with this scenario.


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## ballz (31 May 2019)

Brihard said:
			
		

> I outlined why this is in place and how it would work upthread, with real examples of how this defeats circumstances and defenses that have stymied justice for drunk drivers many times over.



Without a care in the world for the collateral damage.... the ends justify the means apparently.


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## brihard (31 May 2019)

ballz said:
			
		

> Your downplaying of the negative consequences this has needlessly had on the person and their family is appalling.
> 
> Neither of those scenarios is acceptable. To err is to be human. To absolve the legislators of culpability because they didn't consider the consequences of human error is unreasonable.



I'm not downplaying the negative consequences. The context of your post was in relating to something discussed months ago. That was speaking specifically to the criminal liabilities of this potential scenario. It was nonsense then, and it's nonsense now- I simply wasn't drifting the thread in a new direction, but sticking to what we were actually talking about. I recognize that the driver has faced serious consequences, some of which have been remedied, others not. I hope that there is further remedy. When errors are made, if liability exists, then there are systems to deal with that and I hope the driver makes use of them. That system will, of course, have access to the full story- a deficiency we're on the wrong end of, which I note you're not acknowledging.



			
				ballz said:
			
		

> In scenario 2, it's just silly to think two hours after the fact there is any way to prove someone guilty beyond a reasonable doubt of DUI. Making something that shouldn't be a crime (being drunk an hour after you get home) into a crime, in hopes to convict people of an actual crime that you can't prove (DUI) is nuts, and there is nothing supportable about it.



Of course it's possible to prove someone guilty of DUI two hours after they get home (or elsewhere). All kinds of circumstances could take place that could allow for the circumstances to be proven beyond a reasonable doubt. It is likely or common? Of course not. But many iterations of it are reasonably conceivable, given the possible presence of other witnesses, information received in a complaint, etc etc. There have definitely been people vconvicted of DUIs when they were encountered by police hours after the fact. A hit and run can easily lead to a door knock at a residence that leads to a suspect being identified and then ultimately impaired operation charges being laid.



			
				ballz said:
			
		

> It's pretty sad scary that you see nothing wrong with this scenario.



You're verging on personal attack here. I never said I see nothing wrong with thsoe two scenarios. I simply stated factually that I can assess the possibility of a couple different types of errors being present. To think that police as a profession can uniquely error free is of course silly- as you said above, 'to err is human'. Errors in the professional context must be rectified. I've been a coach to a couple new officers, and on an ongoing basis I mentor several others. If errors aren't being made, people aren't trying to learn their job. We deal with the errors, and when it requires us to be frank and forthright to crown in our disclosures, we are, because that's the integrity demanded of us. But errors must be fixed and learned from. I've learned the most from the handful of cases that I've had not go my way in court. But I've never been 'OK' with my mistakes, because I strive not to repeat them- and that's what I consistently see myself and other more experienced members expect of the rookies. But my sitting back and objetively analyzing a story as presented doesn't mean I'm 'ok' with things being done wrong particularly when they infringe the rights or negatively impact the lives of others, and you're out of line to cast that aspersion on me.


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## ballz (31 May 2019)

Brihard said:
			
		

> I'm not downplaying the negative consequences. The context of your post was in relating to something discussed months ago. That was speaking specifically to the criminal liabilities of this potential scenario. It was nonsense then, and it's nonsense now- I simply wasn't drifting the thread in a new direction, but sticking to what we were actually talking about.



In the article we're discussing, the difference that would be between her administrative charges and criminal charges for blowing over .08 was what exactly? The fact that she hadn't drank an extra drink or two? It sure wasn't anything in this legislation that would have prevented it.



			
				Brihard said:
			
		

> You're verging on personal attack here. I never said I see nothing wrong with thsoe two scenarios. I simply stated factually that I can assess the possibility of a couple different types of errors being present. To think that police as a profession can uniquely error free is of course silly- as you said above, 'to err is human'. Errors in the professional context must be rectified. I've been a coach to a couple new officers, and on an ongoing basis I mentor several others. If errors aren't being made, people aren't trying to learn their job. We deal with the errors, and when it requires us to be frank and forthright to crown in our disclosures, we are, because that's the integrity demanded of us. But errors must be fixed and learned from. I've learned the most from the handful of cases that I've had not go my way in court. But I've never been 'OK' with my mistakes, because I strive not to repeat them- and that's what I consistently see myself and other more experienced members expect of the rookies. But my sitting back and objetively analyzing a story as presented doesn't mean I'm 'ok' with things being done wrong particularly when they infringe the rights or negatively impact the lives of others, and you're out of line to cast that aspersion on me.



I'm not sure why you are talking about errors in this point, I sure wasn't. Under the situation you were talking about and I was quoting your scenario, there would have been no "police" errors made. And yet, someone who has done nothing wrong finds themselves up on criminal charges and essentially has to prove themselves innocent. By making a non-crime (being drunk in your house 2 hours after you stopped driving) into a crime, this law has created a reverse onus... prove that you weren't drinking and driving, or we're going to slap you with an unrelated criminal charge for something that is otherwise not a crime.

You seem to have zero problems with this, because it might help you catch an extra drunk driver or two. To me it is scary that people support these kind of Orwellian measures, perhaps a little more so when it's a police officer that can't seem to grasp that we can't just easily accept collateral damage to innocent people so that the police can catch more bad guys. So if that's a "personal" attack, so be it.


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## brihard (31 May 2019)

ballz said:
			
		

> In the article we're discussing, the difference that would between her administrative charges and criminal charges for blowing over .08 was what exactly? The fact that she hadn't drank an extra drink or two? It sure wasn't anything in this legislation that would have prevented it.



You're still not getting it. There's far too little info to tell what actually happened here, but nothing presented suggests the new legislation was a part of it. Police got a complaint, showed up at her house, got invited in, and spoke with her. One of two things happened:
- They demanded a sample under the new Mandatory Alcohol Screening provision. If that's what they did, it was utterly incorrect to do so, and is NOT what the law allows because they weren't stopped with her operating a conveyance in real time. Or;
- They developed reasonable suspicion, which can be as simple as "yeah, I was driving, but I only had one drink at the bar". That's all they need to demand a breath sample under reasonable suspicion. That's not new to this law. They could always do that. They could always charge for impaired in those circumstances. The new law has closed a number of loophole defences, most particularly someone who flees a collision and drinks, but it did NOT create any new powers to do breath tests in a home. You really need to wrap your head around this.

So it's possible a mistake was made, it's also possible that in that abundant details we didn't get, they may have had grounds to do testing, such as an admission of consumption and of driving, and they may have had other evidence from the original complaint to cause them that real concern.

So while you're right that nothing in this legislation prevented what did happen, neither did anything in this new legislation actually allow it to happen either




			
				ballz said:
			
		

> I'm not sure why you are talking about errors in this point, I sure wasn't. Under the situation you were talking about and I was quoting your scenario, there would have been no "police" errors made. And yet, someone who has done nothing wrong finds themselves up on criminal charges and essentially has to prove themselves innocent. By making a non-crime (being drunk in your house 2 hours after you stopped driving) into a crime, this law has created a reverse onus... prove that you weren't drinking and driving, or we're going to slap you with an unrelated criminal charge for something that is otherwise not a crime.



You need to go and read the actual law, because no, you're wrong. Sub (5) of the offense section, 320.14, explicitly makes it NOT an offense to simply drive home sober, then get drunk afterwards. It literally states "No person commits an offense if..." and goes on to list the things I said. That's not creating a reverse onus, because as I state the police first have to be in the course of an investigation that leads them to reasonable suspicion in the first place, and that case law has been beaten to death abundantly already. To get to charging someone for impaired in their own residence after the fact of driving has taken place is possible, but it's hard. Police need reasonable suspicion for a breath test on scene, and then reasonable grounds to believe a person has operated while impaired in order to get samples back at the station that can actually determine charges, because the roadside test doesn't do that. That 'reasonable grounds' threshold is higher still. This isn't just 'I think, so I'm gonna charge you'.



			
				ballz said:
			
		

> You seem to have zero problems with this, because it might help you catch an extra drunk driver or two. To me it is scary that people support these kind of Orwellian measures, perhaps a little more so when it's a police officer that can't seem to grasp that we can't just easily accept collateral damage to innocent people so that the police can catch more bad guys. So if that's a "personal" attack, so be it.



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. Instead, since the new year alone, I've gotten a suspended driver who blew well over the limit on his second impaired in three years. I got a guy driving home from the bar with his lights off at night who was an absolute piss tank and nearly twice the limit three hours after I pulled him over. I got a guy who blew past an accident scene (caused by another drunk driver) on a bridge with two police cars and a tow truck all with lights going, clocked him 90 in a 50, and he refused to provide a sample but stank of booze when I pulled him over, and degenerated into a drunken mess during the time he was in the back of my car. Finally I ended up in a drive through behind a guy who literally passed out at the wheel with his foot on the brake, and blew over .200 when we got samples from him. He'd been drinking for 4 hours straight after hockey. That's four normal people with good jobs and pretty clean histories in most cases, all in or close to the downtown core, and I'm just thankful none of them killed anyone. And that's just the small proportion of them that end up encountering police. Most drunk drivers get away with it many times over before they're caught. Or before they kill someone.

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.


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## Kat Stevens (31 May 2019)

I can see the potential for this to become a new variation on SWATing. Neighbour doesn't like you mowing your lawn before 10:00 on Sunday morning. He calls up and claims to see you swerve a couple of times and drive over a curb. The police show up at 14:00 and ask you to blow. you blow over because it's Sunday afternoon and you've had a few well earned drinks after yard work day. Destination fucked.


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## brihard (31 May 2019)

Target Up said:
			
		

> I can see the potential for this to become a new variation on SWATing. Neighbour doesn't like you mowing your lawn before 10:00 on Sunday morning. He calls up and claims to see you swerve a couple of times and drive over a curb. The police show up at 14:00 and ask you to blow. you blow over because it's Sunday afternoon and you've had a few well earned drinks after yard work day. Destination ****ed.



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...


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## Infanteer (31 May 2019)

Brihard said:
			
		

> any competent police officer



Much like the military, its not the competent officers I'm worried about. :Tin-Foil-Hat:


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## Furniture (31 May 2019)

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. ...



To acheive your first goal the best way to get more drunk drivers off the road is more police on more patrols. People don't drink and drive because they figure they have a loop hole to get out of the DUI, they do it because the likelihood of seeing the police on the drive home is so low. Everyone that is going to get the message about drinking and driving has got it by now, so you're left with the "it will never happen to me/the police never come by here/take the back roads" crowd.


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## Fishbone Jones (31 May 2019)

If a cop showed up at my place two hours after I got home and had had a few drinks, I just wouldn't answer the door.

I can see who's at my door on camera and have no requirement to respond to a knock.

If I'm in bed, I'm definitely not getting up to answer the door.

I'll call the station the next day, say I noticed a visit on my cameras and was wondering what they wanted.


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## meni0n (31 May 2019)

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...



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...


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## brihard (31 May 2019)

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...



I picked that Global story apart a bit farther upthread, last night. That’s not what they did (mandatory breath sample without any evidence), and I explain in a fair bit of detail where police can get a breath sample and where they can’t. Your starting point for getting up to speed will be reading sections 320.14, 320.15, 330.27, and 320.28 of the Criminal Code. You’re then going to probably dig into some case law if you want to learn yourself up on some of the technical aspects of suspicion vs reasonable grounds, etc etc., but I’ve broken it down and summarized it several times in this thread so far.


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## meni0n (31 May 2019)

Clearly the judge believed her version of events so I would say the officer had no reasonable grounds or suspicion.


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## brihard (31 May 2019)

meni0n said:
			
		

> Clearly the judge believed her version of events so I would say the officer had no reasonable grounds or suspicion.



It didn’t go before a judge. It was an administrative suspension that went before an adjudicator appointed by the Superintendent of Motor Vehicles. IRP adjudicators are neither lawyers nor judges. BC is unique in this system, and it has been upheld by the Supreme Court.

As of yet there is no case law on the 2018 revisions to criminal impaired driving laws. I’d estimate we’ll start seeing provincial court decisions in late 2019 or early 2020, and on up the appeals chain from there. Maybe at the SCC by 2023? It takes a long time to generate binding case law on new things like this.


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## RCDtpr (1 Jun 2019)

edit as I just realized I was replying to a post from months ago.


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## tomahawk6 (2 Jun 2019)

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 ?


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## brihard (2 Jun 2019)

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 ?



Oh, we do. Circumstances where police can enter a residence without invitation are deliberately quite limited, and the courts uphold that strongly.


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## tomahawk6 (2 Jun 2019)

Brihard said:
			
		

> Oh, we do. Circumstances where police can enter a residence without invitation are deliberately quite limited, and the courts uphold that strongly.



Good to know.Thx


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## Good2Golf (2 Jun 2019)

tomahawk6 said:
			
		

> Good to know.Thx



An example in the Ontario Supreme Court: Regina v. Zargar, ONSC 2014, upholding Federal Constitutional rights of "Sanctity of Home."  Of particular note is Para 21 to the Supreme Court's ruling regarding the conditions under which police may be considered to have exceptional reason to deny a homeowner from Sanctity of Home, i.e. police's Lawful Entry:



> [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.);
> 
> ...




Regards
G2G


----------



## mariomike (2 Jun 2019)

Remius said:
			
		

> Was to cut him a break, one certain culture and uniformed member to another or so he said.



In the 1970's, it was common to hear stories from co-workers about receiving "professional courtesy" and "discretion" from Metro police when driving drunk. 

After MADD, not so much.


----------



## ballz (2 Jun 2019)

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.



This conflicts with what you said on page 1. You keep talking about the "new law" and the mandatory screening, but you keep neglecting that the "new law" also makes blowing @ 0.08 within 2 hours after driving a DUI charge. You keep acting like there is only one aspect of this law.

NOTE: While you were arguing the same thing on Pg 1, I don't know how you can argue that this stuff doesn't give "reasonable suspicion" given what you've indicated constitutes reasonable suspicion.

Your comments on page 1:

"





			
				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.



So you're arguing that "seeing someone swerving and hitting a curb" wouldn't constitute reasonable suspicion... but suppose the police show up on that complaint and talk to the guy who they are now smelling booze off of? And if that isn't enough for "reasonable suspicion," you also know the complaint could be worded in a way which would constitute reasonable suspicion. We can easily replace the scenario from "neighbour says he saw him swerve and hit the curb" to "neighbour says he saw him drinking while outside working in the yard and then get in a vehicle and drive away. Shortly after, he came back and hit the curb trying to get into his own driveway." You know damn well this complaint can be manufactured well enough to provide "reasonable suspicion." If people can manufacture complaints well enough to have a SWAT team called, they can manufacture complaints well enough to provide reasonable suspicion for a breathalyzer.

Now, you're likely going to argue "he had no reason to believe he would be breathalyzed, and he has BAC consistent with how much he had been drinking since getting home, so he will not be found guilty." That's great, after having his license suspended and $10,000 in legal fees, he will be found not guilty. So not exactly a winning argument, not an acceptable outcome in my books.

Like I said in my first post....



			
				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.



I will also contend here, again, that a change to the obstruction laws would make a lot more sense than trying to address what is a obstruction problem by making the harmless act of being drunk 2 hours after getting home a crime. You had stated you disagreed with that because "obstruction is harder to prove," which is a nonsensical argument because you're supporting a change to DUI laws to make DUI "easier to prove," when they could just change the obstruction law to make it "easier to prove" instead, and come up with sentencing guidelines that mean if you are found guilty of obstructing for the purposes of escaping a DUI charge, you will be punished in a similar manner to had you been found guilty of a DUI.


----------



## ballz (2 Jun 2019)

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.



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.


----------



## mariomike (2 Jun 2019)

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.



You never really get used to it.


----------



## brihard (2 Jun 2019)

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.



I guess we’ll have to agree to disagree. I’m content with knowing that the facts of the new law are accurately recounted in this thread, and people can make up their minds as they see fit. I’m not going to convince you, you’re not going to convince me. My concern here was more to correct inaccurate impressions given by yet another poorly researched article on the matter.


----------



## Infanteer (2 Jun 2019)

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.


----------



## meni0n (2 Jun 2019)

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.



From the article

https://www.timescolonist.com/news/local/nanaimo-woman-wins-legal-fight-over-drinking-and-driving-1.23841698



> 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.



There's a lot of wrong things that went on in that case.


----------



## ballz (2 Jun 2019)

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.



And another slightly different version than what meni0n's article states (which sounds more plausible and thorough), but an anonymous caller none the less...

In the audio clip on the article, it interviews the woman and honestly it sounds even worse than the article. She states she was told by police it was an anonymous caller that complained she was driving erratically:

1. The cops called stating they wanted to speak to her about something personally. She asked what it was and they wouldn't tell her. She gave them her location. I'm not upset about this, if they think they someone has been drinking and driving, and are trying to build evidence, meeting them in person is obviously going to be necessary to help build a case.

2. Five cops showed up in three cars. Okay, this seems a bit excessive to me.

3. She asked the police what brought them there. They would not give any info, but said someone reported that she was driving erratically. Her lawyer also allegedly tried to get the info, and couldn't. It sounds like it was an anonymous caller (or a real bad job taking notes by the police) or else I can't see how it's possible that the lawyer wouldn't be able to get the info. 

4. Having admitted to drinking (because she was drinking when they showed up), they told her she had to take a breathalyzer.

Never thought about it until she mentioned it, but she required her car for her duties at work too. Besides the money she's out, the vacation time, the legal battle, losing her vehicle for a month, etc.... having her license suspended, she's lucky she didn't lose her job.


----------



## daftandbarmy (3 Jun 2019)

A few years ago I drove into my driveway to see a police cruiser and two cops, speaking to my wife who was standing next to her car with our two kids in the back, in car seats.

Someone had reported her to police as she was driving home and, no doubt, swatting at the kids in back seat for some reason (which likely caused the car to swerve).

After the cops were satisfied she wasn't hammered, they left. 

I thanked them (for giving me the most awesome story ever that I can threaten to tell at anytime in public unless I get what I want)


----------



## mariomike (3 Jun 2019)

ballz said:
			
		

> , she's lucky she didn't lose her job.



Depends on the employer. Where I worked, they would demote you to an unskilled labourer type job - at that pay rate. 

Depending on the circumstances, you might, or might not, get your old job and pay rate back - when they gave your Class CZ or F licence back.


----------



## Jarnhamar (3 Jun 2019)

[quote author=ballz] 

1. The cops called stating they wanted to speak to her about something personally. She asked what it was and they wouldn't tell her.[/QUOTE] 

If the police called me and wanted to talk but wouldn't tell me why I'd laugh and hang up. 

Then again I'm also under the impression that police in Canada are able to lie to citizens however the reverse is a crime? 



> 2. Five cops showed up in three cars. Okay, this seems a bit excessive to me.


Seems like there's more to the story maybe? 



> 3. She asked the police what brought them there. They would not give any info, but said someone reported that she was driving erratically. Her lawyer also allegedly tried to get the info, and couldn't. It sounds like it was an anonymous caller (or a real bad job taking notes by the police) or else I can't see how it's possible that the lawyer wouldn't be able to get the info.


Seems strange too. 



> Never thought about it until she mentioned it, but she required her car for her duties at work too. Besides the money she's out, the vacation time, the legal battle, losing her vehicle for a month, etc.... having her license suspended, she's lucky she didn't lose her job.



This is something firearm owners go through when police incorrectly identify firearms and confiscate them. Buddy goes to court and eventually gets his shit back but he's out lawyer and court fees. No repercussions for police that make a mistake and tied up the court system. 

I generally think the new laws or rules are good if it closes loopholes that people have been using to escape dui charges. If they're designed in such a way that they can become weaponized then not so much.


----------



## brihard (3 Jun 2019)

There’s certainly a fair bit of the story that has me scratching my head. What was said in the complaint? If an anonymous caller, how did they know to go to the driver’s sister’s house? It talks about five officers showing up- was that five at the outset or did more arrive? I could easily see two or three attending (two members is normal backup, possibly one training a rookie for a third body) and then a couple more showing up if they started having problems... Or maybe police had prior knowledge of that address or parties involved that changed their risk assessment. Not sure. In any case, the story as presented is certainly more than we would normally see as a response to an anonymous complaint of a possibly impaired driver who then made it home. Not to the point of being outlandish- but it’s unusual.

We do, of course, have only one side of the story, and we likely won’t get the other one since privacy laws would preclude police from putting their cards on the table.

To date though, nothing I’ve read on this one has shown me anything suggesting the new impaired driving laws were relied on and led to what happened. There was nothing in those changes that would newly empower officers to enter a house, and nothing in those hanged that would meet empower officers to get a sample once inside.

A very real possibility is an officer screwed up and misunderstood what the new law allows them to do. I’m trying to find out from people I know out there. Unfortunately the situation is being seized on as an “I told you so!” by concerned people who don’t actually understand what the new laws do and more importantly what they don’t.


----------



## SupersonicMax (3 Jun 2019)

Brihard,

While you may see this from an objective eye, the reality is that the law opens up doors to abuses from LEOs.  While those cases of abuse will result in charges tossed out, it won’t be before citizens have to pay tens of thousands of dollars in lawyers fees and massive disruption to their lives.  This is not right at all.


----------



## Bruce Monkhouse (3 Jun 2019)

SupersonicMax said:
			
		

> Brihard,
> 
> While you may see this from an objective eye, the reality is that the law opens up doors to abuses from LEOs.  While those cases of abuse will result in charges tossed out, it won’t be before citizens have to pay tens of thousands of dollars in lawyers fees and massive disruption to their lives.  This is not right at all.



Yea, because they want to lose their $100,000+ jobs just to find some innocent person and ruin their lives.....


----------



## brihard (3 Jun 2019)

SupersonicMax said:
			
		

> Brihard,
> 
> While you may see this from an objective eye, the reality is that the law opens up doors to abuses from LEOs.  While those cases of abuse will result in charges tossed out, it won’t be before citizens have to pay tens of thousands of dollars in lawyers fees and massive disruption to their lives.  This is not right at all.



The legal/justice system is in a constant state of self-correction over exactly these sorts of problems. We’ve got close to 70,000 police in Canada, with easily tens of millions of interactions with Canadians in a given year. In every such interaction a lot of things can potentially happen. So yes, between error, poor judgement, and very occasionally outright malice on someone’s part, things will go wrong. In that regard these new laws are really no different from just about anything else. The same arguments were made in key Supreme Court cases on things like investigative detention, or random traffic stops. It’s the reality inherent in a system governed by the rule of law where one group has to try to enforce same, and others will go to sometimes absurd lengths to get away with whatever it is they’ve done. There’s a lot of murkiness in that ground in between.

That is not me accepting any individual thing done wrong- it should always be seen as something to fix. But it’s unrealistic to expect that perfection is achievable, or that having perfection as a goal should prevent efforts to improve a badly flawed system.

Unlike some others I’m not one of those cops who craps on the Charter. I think it’s key to our society’s functioning, and its protections matter. I’m cognizant of and sympathetic to the liberty concerns here. But I’m also irritated at seeing an actual situation seriously misrepresented by people grinding an axe.


----------



## Fishbone Jones (3 Jun 2019)

Bruce Monkhouse said:
			
		

> Yea, because they want to lose their $100,000+ jobs just to find some innocent person and ruin their lives.....



You know better than anyone Bruce. People don't always follow the rules or do what's right. Especially, people in authority who think they are above the little people. You'll find them in every profession, including LE.



> Unlike some others I’m not one of those cops who craps on the Charter.



I rest my case.


----------



## Bruce Monkhouse (3 Jun 2019)

Fishbone Jones said:
			
		

> You know better than anyone Bruce. People don't always follow the rules or do what's right. Especially, people in authority who think they are above the little people. You'll find them in every profession, including LE.



Yea, and those people are such a minuscule percentage that they get weeded out fast, and/or everything they do gets examined with a microscope.  I'll start worrying the day cop misconduct isn't a news story.....


----------



## brihard (3 Jun 2019)

Fishbone Jones said:
			
		

> I rest my case.



Not liking some of it doesn’t mean they don’t do their best to follow it. Grumbling at something that can make the job harder (and in some cases seemingly futile) is a far cry from any sort of malfeasance. I’m sure every member of this particular site is well acquainted with “you don’t have to like it, you just have to do it”.

As Bruce alludes- you don’t play by the rules as an LEO, pretty quickly the defense in a court case is going to destroy your credibility- and that’s something that follows you long after an individual case is done, if there’s any sign that you were dishonest or acted in bad faith.


----------



## Fishbone Jones (3 Jun 2019)

Brihard said:
			
		

> Not liking some of it doesn’t mean they don’t do their best to follow it. Grumbling at something that can make the job harder (and in some cases seemingly futile) is a far cry from any sort of malfeasance. I’m sure every member of this particular site is well acquainted with “you don’t have to like it, you just have to do it”.
> 
> As Bruce alludes- you don’t play by the rules as an LEO, pretty quickly the defense in a court case is going to destroy your credibility- and that’s something that follows you long after an individual case is done, if there’s any sign that you were dishonest or acted in bad faith.



YMMV
I was born at night, but not last night. I've been an observer of human nature a lot longer than most around here.


----------



## daftandbarmy (3 Jun 2019)

Fishbone Jones said:
			
		

> YMMV
> *I was born at night, but not last night.* I've been an observer of human nature a lot longer than most around here.



That's a keeper. Thanks!  :nod:


----------



## Jarnhamar (3 Jun 2019)

Brihard your inbox is full. Lots of fan mail I see  ;D


----------



## ballz (3 Jun 2019)

Brihard said:
			
		

> If an anonymous caller, how did they know to go to the driver’s sister’s house?



Because they called her first, misled her about needing to talk to her about a personal issue, and she gave them her location. I assume if you have license plate number you are able to look up the registered owner's contact information? That is what the police told me they would do when I reported a hit & run that I witnessed, anyway.




			
				Brihard said:
			
		

> To date though, nothing I’ve read on this one has shown me anything suggesting the new impaired driving laws were relied on and led to what happened. There was nothing in those changes that would newly empower officers to enter a house, and nothing in those hanged that would meet empower officers to get a sample once inside.



Under the old laws, would you not agree that there would be no point in breathalyzing her after she had been at home and drinking for 2 hours? What could you possibly charge her with at that point? What would you be investigating her for?

With the new laws, there is reason to do that because "blowing .08 within 2 hours of operating a motor vehicle" is now a crime. At this point, they had reasonable suspicion of that crime. Having her blow and getting a BAC above .08 could allow them to possibly lay a charge. Even if that's not enough to lay a charge, refer to remarks about not everyone being a perfect police officer. The courts will sort it out in the end right? No harm no foul.



			
				Bruce Monkhouse said:
			
		

> Yea, because they want to lose their $100,000+ jobs just to find some innocent person and ruin their lives.....



Yes, and well-paying jobs and gold-plated pensions prevents all CAF members from doing anything stupid, that's why we don't even need remedial measures or our own justice system. : Not to mention the fact that in a he said / she said the civilian has zero chance. That pay and pension sure didn't save Walter Scott's from getting shot in the back 8 times.


----------



## Bruce Monkhouse (3 Jun 2019)

No one in the CAF has to be grilled constantly over and over again by lawyers just looking for discrepancies that stick with you on your work record.... holy apples and oranges.


----------



## ballz (3 Jun 2019)

Brihard said:
			
		

> The legal/justice system is in a constant state of self-correction over exactly these sorts of problems. We’ve got close to 70,000 police in Canada, with easily tens of millions of interactions with Canadians in a given year. In every such interaction a lot of things can potentially happen. So yes, between error, poor judgement, and very occasionally outright malice on someone’s part, things will go wrong. In that regard these new laws are really no different from just about anything else. The same arguments were made in key Supreme Court cases on things like investigative detention, or random traffic stops. It’s the reality inherent in a system governed by the rule of law where one group has to try to enforce same, and others will go to sometimes absurd lengths to get away with whatever it is they’ve done. There’s a lot of murkiness in that ground in between.
> 
> That is not me accepting any individual thing done wrong- it should always be seen as something to fix. But it’s unrealistic to expect that perfection is achievable, or that having perfection as a goal should prevent efforts to improve a badly flawed system.
> 
> Unlike some others I’m not one of those cops who craps on the Charter. I think it’s key to our society’s functioning, and its protections matter. I’m cognizant of and sympathetic to the liberty concerns here. But I’m also irritated at seeing an actual situation seriously misrepresented by people grinding an axe.



But there's a better way, a way with less risks to innocent bystanders that achieves the same effect of this law. So there's no need to sit here and agree with the legislation. We can say "I agree with the intent of the legislation, but I do not agree with it in its current form." That doesn't make me someone with an axe to grind, it makes me someone who expects legislators to do a better job. The better way is by targeting actual obstruction, which would mean you'd have to be investigating someone for obstruction, instead of broadening the definition a DUI so that it opens up essentially everyone to being investigated and charged for DUI, just so you can catch the few who have committed obstruction.

Like seriously, what is wrong with this alternative (forgive me for shotty legal speak... I'm sure a lawyer would clean it up):

"Obstructing justice
139. (3) Every one who willfully consumes alcohol or drugs within two hours of a motor vehicle accident, collision, incident, or (weird legaleeze speak for things that can go wrong in a car when you a drunk) and therefore ought to have had reasonable expectation that they would be required to provide a sample of a bodily substance

AND 

is found to have a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation for instances where alcohol and that drug are combined.

is guilty of..." and then subject to sentencing that is specifically designed for people who obstruct DUI investigations, which would essentially be the same sentencing for a DUI.


Please tell me the issue with this kind of approach to hypothetical legislation? Where does it fall short in closing loopholes that this current law does not fall short?

Because I'll tell you where it's better... an anonymous caller calling and saying you were driving erratically wouldn't give the police the ability to charge you with a DUI because you were drunk by your pool on a Sunday.

Surely there is a better way.


----------



## ballz (3 Jun 2019)

Bruce Monkhouse said:
			
		

> No one in the CAF has to be grilled constantly over and over again by lawyers just looking for discrepancies that stick with you on your work record.... holy apples and oranges.



You're just being deliberately obtuse if you are going to sit here and argue that no police officer oversteps their authority either out of zealousness or malice because they are all afraid to lose their jobs. Even Brihard indicated they exist. Again, see Walter Scott getting shot in the back 8 times as he ran away. The video must be from an alternative universe because according to your worldview, it must not have occurred in this world. Nothing on this list ever occurred either, apparently... https://en.wikipedia.org/wiki/List_of_controversies_involving_the_Royal_Canadian_Mounted_Police


----------



## Bruce Monkhouse (3 Jun 2019)

No one says "no".....we just know they get weeded out real fast.   Hey look at that link, happens so seldom it still makes news.   Call me "obtuse" when it doesn't make news.


----------



## brihard (3 Jun 2019)

ballz said:
			
		

> But there's a better way, a way with less risks to innocent bystanders that achieves the same effect of this law. So there's no need to sit here and agree with the legislation. We can say "I agree with the intent of the legislation, but I do not agree with it in its current form." That doesn't make me someone with an axe to grind, it makes me someone who expects legislators to do a better job. The better way is by targeting actual obstruction, which would mean you'd have to be investigating someone for obstruction, instead of broadening the definition a DUI so that it opens up essentially everyone to being investigated and charged for DUI, just so you can catch the few who have committed obstruction.
> 
> Like seriously, what is wrong with this alternative (forgive me for shotty legal speak... I'm sure a lawyer would clean it up):
> 
> ...



As I’ve continued to see stories on this, including finally one better written by the Vancouver Sun, it’s looking likely that the police officers on the file did not properly apply their legal authorities to get a breath sample, nor to issue an Immediate Roadside Prohibiton. An IRP can only be issued to someone the police have actually got operating or in care and control on a highway or industrial road, not after the fact in a residence. IRP only applies when ‘caught in the act’. The Sun article also states that she recorded the event, and that her recording contradicts what the police reported- that being the case, they deserve whatever they get in consequence, and she may have strong grounds for civil action.

If they felt it necessary to pursue the anonymous complaint, their only legitimate course of action would be to investigate the matter towards a reasonable suspicion demand, if they had that, and then to investigate the matter for potential criminal charges. Given the facts as presented, I can’t see that this would have led to charges being laid as she would not satisfy the elements of the offense.

New laws vs old laws make no difference on this one. There’s literally nothing reported that wouldn’t be allowed under the old provisions but would be under the new. This reads to me like a performance issue on the part of at least the lead member involved. Probably compounded by inadequate training on what the new laws do and don’t allow.


----------



## mariomike (3 Jun 2019)

ballz said:
			
		

> Yes, and well-paying jobs and gold-plated pensions prevents all CAF members from doing anything stupid,



Everyone makes mistakes. But, considering how many CAF members there are ( 95,000? ) I don't believe their members get sued as frequently by the public as members of our emergency services do when they make a mistake. Especially now with cell phone video and You-tube.

Please correct me if I am wrong.

Of course, it's the taxpayers who end up paying the lawsuits.


----------



## Jarnhamar (3 Jun 2019)

mariomike said:
			
		

> Everyone makes mistakes. But, considering how many CAF members there are ( 95,000? ) I don't believe their members get sued as frequently by the public as members of our emergency services do when they make a mistake.
> 
> Please correct me if I am wrong.
> 
> Of course, it's the taxpayers who end up paying the bill.



When CAF members make mistakes it generally doesn't effect members of the public; medically, financially, emotionally, employability, public image, etc...


----------



## mariomike (3 Jun 2019)

Jarnhamar said:
			
		

> When CAF members make mistakes it generally doesn't effect members of the public;



That's what I was trying to say.


----------



## Fishbone Jones (8 Jun 2019)

https://nationalpost.com/opinion/chris-selley-the-liberals-police-state-impaired-driving-law-has-to-go



> *Chris Selley: The Liberals' police-state impaired driving law has to go*
> 
> With Canada's drunkest drivers continuing to cause carnage on our roads, the government is targeting asthmatics and people buying wine
> 
> ...



More at link


----------



## Jarnhamar (8 Jun 2019)

It would be interesting to see the number of drunk drivers charged and found guilty before this law came into affect and after.


----------



## brihard (8 Jun 2019)

Jarnhamar said:
			
		

> It would be interesting to see the number of drunk drivers charged and found guilty before this law came into affect and after.



My understand is that DOJ in conjunction with prosecutors and police are trying to figure out how to do some decent data collection on this. Not just before/after, but in greater depth about the use of mandatory alcohol screening. I haven’t seen anything come of it yet, but I know a guy in the RCMP’s National Traffic Service who was seeking input from from line police on what viable data collection could look like.

Charges are just one metric of course. Ideally what we want to see is fewer collisions, injuries, and fatalities involving drivers found to be impaired by alcohol. Deterrence is infinitely preferable to enforcement against an offense in commission.

British Columbia saw impaired driving deaths drop by approximately half when they brought in Immediate Roadside Prohibitions. That’s the kind of metric that is sought over anything else. https://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/dec-2016-alcohol-related-fatalities.pdf


----------



## Kirkhill (8 Jun 2019)

If find it curious that criminal cases can be imperiled because evidence in bags is improperly transferred in custody and yet the assumption here appears to be that evidence collected after the fact, remote from the scene of the "crime", is held to be valid.


----------



## Fishbone Jones (8 Jun 2019)

I'm more concerned with people saying "Hey, this works! What other criminal acts can we diminish by removal of more rights?"

That points to no rights = no crime.

How about a curfew? How about an interlock device in every car? Why not just keep all cars in one lockup and you have to show the cop your license, insurance and a clean BAC before you can retrieve your property? Oh, and all over again when you park for the day.........before curfew and your shuttle home?

Proactively trampling rights to diminish crime is a non starter.


----------



## Jarnhamar (8 Jun 2019)

Yes to interlocks.

Yes to a curfew in Toronto and maybe Vancouver.


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## Furniture (9 Jun 2019)

Jarnhamar said:
			
		

> Yes to interlocks.
> 
> Yes to a curfew in Toronto and maybe Vancouver.



That's the same reasoning that's used to ban all firearms. 

It's easy to agree to people losing their rights, so long as it doesn't negatively impact your own life.


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## Sub_Guy (9 Jun 2019)

Jarnhamar said:
			
		

> Yes to interlocks.



Would it be a bad idea to have a interlock in every vehicle? 

Perhaps Victoria city council can table a motion to have car manufacturers foot the bill for checkpoints.  If cars were installed with interlocks there would be a reduced need for checkpoints.


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## Fishbone Jones (10 Jun 2019)

Dolphin_Hunter said:
			
		

> Would it be a bad idea to have a interlock in every vehicle?



Who do you impose upon to pay for it all?

Who pays to retrofit all the vehicles currently out there?

Of course, the presumption of innocence has long since faded into history, so no need to worry about that anymore.  J'accuse and off to jail you go.


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## Lumber (10 Jun 2019)

Fishbone Jones said:
			
		

> Who do you impose upon to pay for it all?
> 
> Who pays to retrofit all the vehicles currently out there?
> 
> Of course, the presumption of innocence has long since faded into history, so no need to worry about that anymore.  J'accuse and off to jail you go.



Who paid to have airbags and seat belts installed in every vehicle?


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## Jarnhamar (10 Jun 2019)

Furniture said:
			
		

> That's the same reasoning that's used to ban all firearms.


But I'm not trying to ban firearms. I'd be more than happy to put an interlock device on my gun vaults  ;D


> It's easy to agree to people losing their rights, so long as it doesn't negatively impact your own life.


You're right there. 



			
				Dolphin_Hunter said:
			
		

> Would it be a bad idea to have a interlock in every vehicle?



I don't think so.


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## Fishbone Jones (10 Jun 2019)

Lumber said:
			
		

> Who paid to have airbags and seat belts installed in every vehicle?



You did.


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## mariomike (10 Jun 2019)

Dolphin_Hunter said:
			
		

> Would it be a bad idea to have a interlock in every vehicle?



Probably depends upon one's point of view.

A US study, for reference to the discussion,



> 2015
> 
> An interlock device in every new car 'could prevent 80% of drunk-driving deaths'
> https://www.medicalnewstoday.com/articles/291043.php
> ...


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## Furniture (10 Jun 2019)

Jarnhamar said:
			
		

> But I'm not trying to ban firearms. I'd be more than happy to put an interlock device on my gun vaults  ;DYou're right there.
> 
> I don't think so.



The problem with chipping away at individual rights and freedoms is, it leads to more chipping away at them. Today it's interlocks, tomorrow it's banning operation of a vehicle during "unsafe" driving hours, next it's requesting permission to travel outside your municipality. Anything for safety, think of the children...

Maybe at the same time in the name of safety it will a ban on private possession of firearms, or knives over a certain length. After all, it's good enough to restrict people's cars for safety why not restrict private possession, and use of all "dangerous" objects.


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## cld617 (10 Jun 2019)

Lumber said:
			
		

> Who paid to have airbags and seat belts installed in every vehicle?



The purchaser of the vehicle did, who has the potential to get into an accident through no neglect of their own. An interlock imposed on everyone for the few who cannot control their criminal behavior is an abhorrent suggestion.


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## Loachman (10 Jun 2019)

On the plus side, it might protect a few non-drinking drivers from some drinking ones.

Like making it mandatory for everybody to purchase and wear kevlar body armour to protect against criminal misuse of firearms instead of taking firearms away from the law-abiding.

Not that I'm a fan of either suggestion.


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## mariomike (10 Jun 2019)

We've had RIDE in Toronto since 1977. A lot of people complained in the local papers about their "rights" back then.

I guess most got used to it.


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## Furniture (10 Jun 2019)

mariomike said:
			
		

> We've had RIDE in Toronto since 1977. A lot of people complained in the local papers about their "rights" back then.
> 
> I guess most got used to it.



An occasional check stop is one thing, having the government involved every time I start my car is a bit much. 

It's similar to me not minding that my car might get searched when I go onto the base, but I sure wouldn't accept random vehicle searches just because the police were bored. 

That you called them "rights" says a lot...


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## mariomike (10 Jun 2019)

Furniture said:
			
		

> That you called them "rights" says a lot...



"Rights" was the word being used by some people complaining to the local papers back in 1977...


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## Jarnhamar (11 Jun 2019)

Furniture said:
			
		

> An occasional check stop is one thing, having the government involved every time I start my car is a bit much.
> 
> It's similar to me not minding that my car might get searched when I go onto the base, but I sure wouldn't accept random vehicle searches just because the police were bored.
> 
> That you called them "rights" says a lot...



Alright, I'm sold on it being intrusive and a bad idea. 
Educational initiatives, social pressure and targeting offenders is better than a blanket attempt to control everyone.


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## brihard (11 Jun 2019)

mariomike said:
			
		

> We've had RIDE in Toronto since 1977. A lot of people complained in the local papers about their "rights" back then.
> 
> I guess most got used to it.



Random police stops of motorists to check license status, registration, insurance, mechanical fitness, and sobriety were challenged against the Charter in R. v. Ladouceur, 1990. The SCC held that police are able to stop vehicles completely at random to check these things (inclusive of RIDE checks, though they were affirming pre-Charter case law regarding that). They held that, while an arbitrary detention does result, it was justified as a reasonable limitation under S.1.

Ladouceur will unquestionably be one of the key decisions considered once parts of this new law begin hitting appeals courts. It will be challenged many times over, with different sections of it being subjected to Charter challenge depending on the facts of each case. I expect one of the most contentious decisions will be the mandatory roadside breath tests, absent ‘reasonable suspicion’, as a ‘seizure’ under S.8.. H


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## tomahawk6 (11 Jun 2019)

But to enter a person's home uninvited to get a breathalyzer smacks of intrusive policing.


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## Fishbone Jones (11 Jun 2019)

tomahawk6 said:
			
		

> But to enter a person's home uninvited to get a breathalyzer smacks of intrusive policing.



Don't answer the door.


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## brihard (11 Jun 2019)

tomahawk6 said:
			
		

> But to enter a person's home uninvited to get a breathalyzer smacks of intrusive policing.



Yes, which is why it cannot be done. I can’t put this any more plainly: police cannot simply show up at a house based on a tip and enter uninvited to investigate impaired driving. Unless police are in fresh pursuit of a fleeing suspect, or have a warrant authorizing entry, or have credible reason to fear for the safety of someone in the house- they cannot enter uninvited. Clear as mud?


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## Jarnhamar (11 Jun 2019)

Brihard said:
			
		

> Yes, which is why it cannot be done. I can’t put this any more plainly: police cannot simply show up at a house based on a tip and enter uninvited to investigate impaired driving. Unless police are in fresh pursuit of a fleeing suspect, or have a warrant authorizing entry, or have credible reason to fear for the safety of someone in the house- they cannot enter uninvited. Clear as mud?



If the police get a tip that I was drinking and driving and they show up at my door, I answer, and I'm clearly intoxicated, can the police administer a breathalyzer then? What if I say I haven't left my house all day?


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## Fishbone Jones (11 Jun 2019)

Hypotheticals are rabbit holes.

There are two rules when dealing with police in a situation like this. Don't open the door and don't speak to them without a lawyer.

Police don't come to your door like Jehova's Witnesses wanting to share with you.


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## Kat Stevens (11 Jun 2019)

Best free legal advice ever!  :rofl:

https://www.youtube.com/watch?v=JTurSi0LhJs


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## brihard (11 Jun 2019)

Jarnhamar said:
			
		

> If the police get a tip that I was drinking and driving and they show up at my door, I answer, and I'm clearly intoxicated, can the police administer a breathalyzer then? What if I say I haven't left my house all day?



I’ll preface by saying that this answer is not affected by the new laws- it applies equally before and after. So:

Sort of / yes / but...

If you’re clearly intoxicated, an on scene Approved Screening Device shouldn’t be the way to go; someone clearly drunk is already past that and you generally go right to arrest if you have the rest of the pieces of the puzzle. But that aside, I infer that the bigger ‘so what?’ is more whether police can detain or arrest you. Police can do that without a breath sample on scene; the intent of a drunk driving arrest is generally to get a breath sample from a better instrument at the station.

Whether an ASD sample on scene, or going right to arrest, police have to be convinced that the person was in fact operating a motor vehicle. A credible enough witness can give them that even in the face of denials or claims to the contrary. Startlingly, some drunk drivers actually lie to police. A positive ID from a witness versus a denial by a suspect becomes a judgement call by the investigating officer.

But, without continuity of the driver, police will struggle to be able to articulate reasonable grounds to say that they have evidence showing conclusively that the driver was intoxicated while behind the wheel. Recency comes into this too. Is there a lengthy delay? Or do you arrive to find the tail pipe still warm?

Some people absolutely come to the door just after drunk driving. Usually in this case police are investigating a hit and run or some egregiously dangerous driving, or they generally wouldn’t bother once they see the car made it home.

The one difference the new law makes is that if a person should be reasonably expecting to be investigated - hit and run is the best example by far - then the ‘within two hours’ provision can apply for charges. But that has zero impact on the ability of police to get samples, and gives no powers to go into a house that didn’t otherwise exist.


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