# Vehicle Searches at Border are Illegal - news article



## Greymatters (29 Jul 2007)

A mind-blowing ruling by a judge who says that it is illegal for border guards to search cars at the border because they dont have a search warrant.  What next?  Shall it be illegal to search for guns and bombs prior to boarding airplanes, because CATSA didnt get a warrant?

Im embarassed to say it was a BC judge...

In accordance with Chapter 29 of the Copyright Act...
Vehicle Searches at Border are Illegal Judge Rules
http://www.mapinc.org/drugnews/v07/n872/a10.html


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## niceasdrhuxtable (29 Jul 2007)

This article doesn't really report the entire story. What the court ruled was that extensive searches requiring the vehicle to be dismantled/damaged require a search warrant. The regular car searches aren't affected by this legislation. Additionally, asking for a warrant isn't exactly an oppressive burden to meet as they can usually be obtained over the telephone in under 5 minutes.


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## pbi (22 Aug 2007)

As well, it is already clearly established under Canadian Law (such as the NDA and Defense Controlled Areas Trespass Act) that submitting to a vehicle search can be a condition of entry, without a warrant. So the principle behind border searches has already been (indirectly) established elsewhere.

Cheers


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## 1feral1 (22 Aug 2007)

The only ones that are worrying are the ones hiding something. 

They can seach my vehicle or person anytime. Its all for the common good of everyone's safety overall.

Remember the bad guys often go for our weakest link. Our borders are shockingly weak and always have been.

That Judge needs to be removed.


Cheers,

Wes


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## noneck (23 Aug 2007)

"This article doesn't really report the entire story. What the court ruled was that extensive searches requiring the vehicle to be dismantled/damaged require a search warrant. The regular car searches aren't affected by this legislation. Additionally, asking for a warrant isn't exactly an oppressive burden to meet as they can usually be obtained over the telephone in under 5 minutes." 

Sorry but this isn't accurate, I would love to be able to get a search warrant in 5 minutes! The fax cover sheet takes longer than that  to fill out. Once you have formulated your grounds and articulated the same on an ITO, and then completed all the requisite accompanying paperwork, Your warrant is then reviewed by a supervisor, then you contact the JJP center and and then fax the package through to the JJP on duty. Finally once they have reviewed your application, you may have to make some corrections, or it may be denied or you may get it signed. Total time anywhere from 2 hours for lightening fast to 6+ hours fo more complex situations.

Noneck


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## zipperhead_cop (23 Aug 2007)

There is plenty of good case law that allows the CBSA to do whatever they need to at the border.  It was a piss poor decision, and I believe that it is being appealed. 



			
				GreyMatter said:
			
		

> Im embarassed to say it was a BC judge...



You should be used to horrifying judicial rulings out there by now.  How do you think we feel when we get burdened with the precedent?


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## geo (23 Aug 2007)

I am baffled!

You & your car drive up to and present yourself to the Cdn Immigration / Custom & Excise agent.

If they ask to inspect your car & you refuse..... I would venture to say to the customs agent - turn 'em around & send 'em back to the nice US Customs & border patrol people.  See how well they are greeted on arrival & see if their car doesn't get searched, like it or not.


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## karl28 (23 Aug 2007)

This is a sad day for justice according to the article link provided the accused had 50kg of  illegal drugs in his possession . The border guards should have been giving  excellent praise for doing a job well done .                Now my question is thanks to this Judge's ruling is there any way that the border guards can have access to a search warrant when ever they need it ?


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## geo (23 Aug 2007)

My guess is that this will be sent up to the appeals court & prolly hit the supreme court in record time.

In the meantime, as the US boys to look after it.  They don't need no darned search warrant.
OR as an alternative, tell the suspects to park their car & cool their heels until they are prepared to submit to an inspection.


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## Fishbone Jones (23 Aug 2007)

Let's not forget that the guy smuggling all this coke is now cut loose and back out in society. Likely with a name change and back in his 'community'.

As far as being sent back to the US, IIRC, CBSA cannot deny entry to a Canadian citizen.


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## karl28 (23 Aug 2007)

geo  


         I sure hope that your right the thought of this case being aloud to happen is discracefull .  I still cant imajine in what the judge was thinking to allow this accused  person off cause of this situation .  The acused was caught red hended  some days I just want to bang my head off  the desk


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## Sheerin (23 Aug 2007)

for those who are interested, here's the actual ruling 
http://www.provincialcourt.bc.ca/judgments/pc/2007/02/p07_0224.htm


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## zipperhead_cop (23 Aug 2007)

I have limited Customs knowledge, but if you refuse to let your vehicle be searched you can get arrested for a charge of Hindering.  There is a more wordy name for it, I just don't know it.  It's like Obstructing a Peace Officer, but CBSA specific.  
With regards to the US comparison, Canada actually has broader and more powerful border laws than they do.  However, when they catch someone, the sentences are far more severe.  
As for making anyone "cool their heels" that would be an unlawful detention, with all the grief that would come with it.  
The judge was wrong, plain and simple.  I trust that the appeal will make it better.  

Where is that darned WR when we need him    Or Portcullis Guy?


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## Greymatters (26 Aug 2007)

While it does identify that there are contradictions between the Customs Act and the Charter, it should not mean that a person is free to avoid search and seizure when suspected of illegal activities.  Despite a lack of a guilty conviction, the evidence makes it fairly clear that the person in question was committing an illegal act, and is only attempting to use a technical loophole to avoid prosecution.


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## Sheerin (27 Aug 2007)

geo said:
			
		

> I am baffled!
> 
> You & your car drive up to and present yourself to the Cdn Immigration / Custom & Excise agent.
> 
> If they ask to inspect your car & you refuse..... I would venture to say to the customs agent - turn 'em around & send 'em back to the nice US Customs & border patrol people.  See how well they are greeted on arrival & see if their car doesn't get searched, like it or not.



After reading the ruling it appears that the man did nothing to prevent the CBSA agents from searching his vehicle.  Rather the evidence was tossed because the agents violated his charter rights by detaining without informing him that he was under arrest, by exceeding the limits of section 99 of the Customs (which allows for searches).  The judged felt (rightly or wrongly) that this type of search fell under the purview of section 111 which says they needed to get a search warrant.  
My question is, once they detained him on suspicion of carrying contraband after the drug dog detected something and after they found the hidden compartment, why couldn't they fill out the paper work and get the search warrant?

Zipperhead, quick question, how long can you guys keep a guy to "cool down" before you have to place him under arrest?


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## J.J (28 Aug 2007)

Judge Ellen Gordon has amassed quite a menu of horrible rulings in her short time as a provincial court judge in British Columbia. She was appointed in 2005. Since then she: 

- Acquitted an impaired driver who was stopped by BSO's at Boundary Bay and had his vehicle searched. She ruled the search was illegal because it was simply a pretext to detain the man for impaired. 

- Delayed the sentence of another impaired driver ... who killed someone ... so that the accused could spend Christmas with her family (too bad the deceased victim couldn't do the same). Her sentence was only 2 years anyway, and it was overturned on appeal. 

- Tossed out a search warrant which resulted in a seizure of 600+ marihuana plants in a B.C. grow up, mainly because the police officers chose to telephone their warrant application, instead of go to the court house across the street. 

- Gave out an absolute discharge (essentially the same as an acquittal, but with a finding of guilt) to a woman who poisoned a stand of trees, just so she could get a better view of Stanley Park from her $1-million condo



> My question is, once they detained him on suspicion of carrying contraband after the drug dog detected something and after they found the hidden compartment, why couldn't they fill out the paper work and get the search warrant?



In ref to section 99 of the C.A. as long as the traveller is not taken out of the "normal stream" of exams, they do not have to  be detained/arrested. It has already been ruled that for the greater good of society some of your Charter rights can be "ignored" when crossing the border. One of these rights is the right against unlawful search and seizure. There is very strong case law from the SCC that states explicitly that Customs does not have to obtain a search warrant to exam a vehicle. Whether it is a cursory exam or an evasive exam
of a conveyance. If the CBSA had to get a search warrant for every vehicle that a dog hit on or a suspected cavity/void or an outright trap was detected, a JP would be needed on a fulltime basis just for that. It is somewhat a regular occurrence.

 A person can be held up to 24hrs for a loo exam...that is sitting on a toilet until you generally have 2 clean bowel movements. After the 24hrs the BSO has to go to a JP for a hold. A subject cannot be compelled to have x-rays or a cavity exam. This is a daily event at Pearson, Vancouver or Montreal airports.



> Zipperhead, quick question, how long can you guys keep a guy to "cool down" before you have to place him under arrest?



To answer for Zipperhead. As soon as you believe an offense has been committed, the person should be informed they are under arrest at that time.



> I have limited Customs knowledge, but if you refuse to let your vehicle be searched you can get arrested for a charge of Hindering.  There is a more wordy name for it, I just don't know it.  It's like Obstructing a Peace Officer, but CBSA specific.



Zipperhead you are almost right on. The charge is hindering an officer in the performance of their duty. Minimum penalty is a $1000 fine and/or a 6 month sentence. That means if you refuse to allow an officer to exam your vehicle, refuse to produce identification, refuse to take off your sunglasses etc, you can be arrested for Hindering. All of the examples I provided are of convictions for hinderance.

With this ruling, nothing has changed in the day to day operation at the border. I doubt it will make it past the BC court of appeal. The SCC has already on this several times.


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## zipperhead_cop (29 Aug 2007)

Sheerin said:
			
		

> Zipperhead, quick question, how long can you guys keep a guy to "cool down" before you have to place him under arrest?



There isn't any such thing.  We can put someone under investigative detention if we have a suspicion that they have been/are involved in a criminal offence, or if we have grounds we arrest them (ultra simplified version)
We don't hold people for any length of time because a) it would be an unlawful detention outside of the two a/m situations and b) it's a waste of time and we are too busy to screw around like that.  
That being said, the CBSA powers are quite a bit more comprehensive than ours with regards to roadside detention and search.


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## Sheerin (29 Aug 2007)

> In ref to section 99 of the C.A. as long as the traveller is not taken out of the "normal stream" of exams, they do not have to  be detained/arrested. It has already been ruled that for the greater good of society some of your Charter rights can be "ignored" when crossing the border. One of these rights is the right against unlawful search and seizure. There is very strong case law from the SCC that states explicitly that Customs does not have to obtain a search warrant to exam a vehicle. Whether it is a cursory exam or an evasive exam



What would the difference between a normal stream of exams and a abnormal one be?  And would moving the vehicle from one border facility to another constittue this?  Since the legislation seems vague, I'm trying to figure out at what point searches stop being covered by section 99 and move to section 111


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## flair (30 Aug 2007)

Hello READERS and TRAVELLING TOURISTS ...
hear is a suggestion for vehicle searches...
just get RID OF THAT BORDER and use all those buildings at those entry ports for TOURIST SITES and SHOPPING MALLS / MUSEUMS and HIRE all those trained humans to STOP and ARREST Drunk Drivers etc...
it is thee 21 st century..get with thee program...those borders are just a place to waste and pollute mother earth while idling and traffic jams...ECONOMIES ON BOTH SIDES DEPEND ON HOSPITALITY AND TOURISTS...y'all come back now ya hear !!
luv from CORNWALL ontario Canada...
(great web site...thank you / merci ./ gracias !!
drive safe / conduisez prudemment tout le monde ...BUCKLE UP svp


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## Fishbone Jones (30 Aug 2007)

flair said:
			
		

> Hello READERS and TRAVELLING TOURISTS ...
> hear is a suggestion for vehicle searches...
> just get RID OF THAT BORDER and use all those buildings at those entry ports for TOURIST SITES and SHOPPING MALLS / MUSEUMS and HIRE all those trained humans to STOP and ARREST Drunk Drivers etc...
> it is thee 21 st century..get with thee program...those borders are just a place to waste and pollute mother earth while idling and traffic jams...ECONOMIES ON BOTH SIDES DEPEND ON HOSPITALITY AND TOURISTS...y'all come back now ya hear !!
> ...


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## Brockvegas (30 Aug 2007)

Um, yeah. Not having borders or controlling who come/leaves our country is a fantastic idea. And someone from Cornwall really can't complain about pollution from cars, do you have any idea how much crap your city pours into the St. Lawrence?

You know what? Nevermind. You're right. Do away with the border, it'll make it easier for the smugglers who use Cornwall as a base of operations to run smokes and booze. They can sell their boats and just drive back and forth across the bridge.  It would save me having to hide my boat every time I fish there in the evening so I don't get SHOT!!!


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## George Wallace (30 Aug 2007)

Obviously the Lifeguard wasn't on duty and someone got into the gene pool by mistake.


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## zipperhead_cop (31 Aug 2007)

George Wallace said:
			
		

> Obviously the Lifeguard wasn't on duty and someone got into the gene pool by mistake.



See, and I was thinking that too much chlorine in the gene pool was the issue.   

Anyhoo, onwards...



			
				Sheerin said:
			
		

> What would the difference between a normal stream of exams and a abnormal one be?  And would moving the vehicle from one border facility to another constittue this?  Since the legislation seems vague, I'm trying to figure out at what point searches stop being covered by section 99 and move to section 111



Secret cop stuff.  Can't say.  You'll know when it happens, though.


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## Greymatters (31 Aug 2007)

zipperhead_cop said:
			
		

> Secret cop stuff.  Can't say.  You'll know when it happens, though.



Thats a cheap way to get out of giving an explanation... aka a 'cop-out'...   ;D


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## IrishCanuck (1 Sep 2007)

Sheerin said:
			
		

> What would the difference between a normal stream of exams and a abnormal one be?  And would moving the vehicle from one border facility to another constittue this?  Since the legislation seems vague, I'm trying to figure out at what point searches stop being covered by section 99 and move to section 111



A personal search is one such example of an "abnormal exam".  Frequently this occurs when drugs are found or sufficient indicators are found (drug paraphenalia for example) to give us reasonable grounds to conduct the personal search. That officer power is found under section 98 of the C.A.

However the person is always either detained or arrested (more often the former) prior to a personal search, as they are taken out of the nomal stream to a private room to have the search done.

A normal traveller search can involve further questioning, database checks, search of conveyances, and pocket/wallet exams.


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## portcullisguy (9 Sep 2007)

Sheerin said:
			
		

> What would the difference between a normal stream of exams and a abnormal one be?  And would moving the vehicle from one border facility to another constittue this?  Since the legislation seems vague, I'm trying to figure out at what point searches stop being covered by section 99 and move to section 111



Section 111 is for inland investigations.

For example, person A imports a car and provides bogus paperwork, which someone doesn't catch until later on.  Investigations gets a referral, and drafts a warrant to search the person's house and seize original bills of sale, the vehicle itself, etc.

The basic difference between a "normal" customs exam and an abnormal one is the point at which the traveller reasonably expects that if they try to leave they will face a criminal sanction.  In other words, they believe they are already under a form of detention.

A "detention" is not defined in the criminal code.  Normally a detention occurs when someone is not free to leave, or they believe if they try to leave they will face some sort of punitive or criminal sanction (arrest, prosecution).  The courts have held that some detentions are allowable, including RIDE spotchecks and when you are crossing the border.   A customs exam could be deemed to become a detention when there is a reasonable expectation that contraband will be found, or is being searched for.

I tend to dislike the term "indicators" because it is not descriptive of what they really are.  When "reasonable grounds" exist, an officer may search a person (sec. 98 -- no such 'reasonable grounds' restriction exists for goods), and so that would be an example of when the Charter is invoked.  If you are going to search someone, they don't have a choice, they have to submit or be in violation of the law, so therefore it is a detention. The officer must read them their rights to counsel, and additionally, offer the option of a senior officer's review.  For goods or conveyances (sec. 99), it's a bit trickier.  An officer may search or cause to be opened any goods or conveyances.  Once you start disassembling or drilling, it could be argued that it is beyond a "normal" examination.


As IrishCanuck points out, many things are considered part of a "normal" customs examination, including asking you to empty your pockets, searching your wallet or purse, interviewing you about your trip or your declaration (you are obliged to answer truthfully questions put to you if they relate to your goods, although we may ask a wide range of questions that may seem unrelated), X-raying your baggage, using an Ion Scan to detect trace amounts of drugs on your goods/conveyances, having a detection dog smell you or your goods/conveyance... all are examples of a 'non-intrusive' examination.


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## IN HOC SIGNO (9 Sep 2007)

flair said:
			
		

> Hello READERS and TRAVELLING TOURISTS ...
> hear is a suggestion for vehicle searches...
> just get RID OF THAT BORDER and use all those buildings at those entry ports for TOURIST SITES and SHOPPING MALLS / MUSEUMS and HIRE all those trained humans to STOP and ARREST Drunk Drivers etc...
> it is thee 21 st century..get with thee program...those borders are just a place to waste and pollute mother earth while idling and traffic jams...ECONOMIES ON BOTH SIDES DEPEND ON HOSPITALITY AND TOURISTS...y'all come back now ya hear !!
> ...



who let the troll out??? hoop hoop hoop hoop......who let the troll out??..... :clown: :clown:


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## J.J (12 Oct 2007)

> Judge Ellen Gordon has amassed quite a menu of horrible rulings in her short time as a provincial court judge in British Columbia. She was appointed in 2005. Since then she:
> 
> - Acquitted an impaired driver who was stopped by BSO's at Boundary Bay and had his vehicle searched. She ruled the search was illegal because it was simply a pretext to detain the man for impaired.
> 
> ...



Court throws out acquittal of suspected drunk driver
New trial ordered because of 'bias' by judge who set accused free
   Jack Keating, The Province 

   SURREY - A new trial has been ordered for a suspected drunk driver who was acquitted when a Surrey Provincial Court judge ruled his rights were violated by a Canadian border guard. 

   The Crown appealed the acquittal in B.C. Supreme Court on the grounds that Judge Ellen Gordon's "aggressive cross- examination" of the border guard showed "bias" in the case. 

   "I find the trial judge was quite unfair," said Madame 

   Justice Catherine Bruce in her three-page written judgment ordering a new trial. 

   "The trial judge, in my view, created a reasonable apprehension of bias in the manner in which she cross-examined the witness in this inappropriate way." 

   John Peter Gorman was asked to step out of his car and open his trunk when at the Point Roberts border crossing on Nov. 20, 2004. 

   "[The border guard] believed that Mr. Gorman had been drinking," Gordon stated in her acquittal ruling in July 2006. 

   Gordon accused the guard of ordering Gorman out of the car to open his trunk not to inspect the contents, but to see if he was drunk. 

   Justice Bruce said Gordon "put unfair questions" to the border guard. Bruce said the "premature statement by the judge that she did not believe the evidence of the Customs Inspector," before submissions were made, showed bias on her part. 

   Bruce noted that Gorman did not have a lawyer representing him in court, which forced Judge Gordon to intervene on behalf of the accused. 

   "Where a person is unrepresented there is clearly a duty placed upon the trial judge to do all that is necessary to ensure the accused receives a fair trial . . . to ensure as part of that process that all viable defences are raised," said Bruce. 

   But Bruce found that the manner in which trial judge cross-examined the guard "supports a conclusion of a reasonable apprehension of bias." 

   Gorman's counsel argued that Gordon's questions were appropriate. 

   The Canada Border Service Agency is appealing another of Gordon's decisions. 

   Ajitpal Singh Sekhon was acquitted last July on charges of importing 50 kilograms of cocaine into Canada at the Aldergrove border. 

   His acquittal was on the grounds that the guards violated the Canadian Charter of Rights and Freedoms by dismantling his trunk without first obtaining a search warrant.


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## GAP (12 Oct 2007)

Someone needs to give this judge a wack upside the head to realign the marbles......


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## JesseWZ (12 Oct 2007)

I thought that is what the gavel was for...


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## IN HOC SIGNO (12 Oct 2007)

I think we should be careful about using the words "wacking, judges" in the same sentence. someone with no sense of humour could take that seriously.


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## geo (12 Oct 2007)

Methinks the Judge had a snootfull of nastyjuice before rendering her jugements.
Thank god for the Appeals court judge who brought a little bit of reality to this nonsense


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## xena (12 Oct 2007)

IN HOC SIGNO said:
			
		

> I think we should be careful about using the words "wacking, judges" in the same sentence. someone with no sense of humour could take that seriously.



If someone did, could we tell them to move to Cornwall?  ;D





Okay, that's a bad one.  I'll get my coat...


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## GAP (12 Oct 2007)

IN HOC SIGNO said:
			
		

> I think we should be careful about using the words "wacking, judges" in the same sentence. someone with no sense of humour could take that seriously.



Get over it. The context it was said in and the vision implied has nothing to do with your PC crap!!!


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## Fishbone Jones (12 Oct 2007)

Wacking judges. Is that anything like wack-a-mole?


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## GAP (12 Oct 2007)

recceguy said:
			
		

> Wacking judges. Is that anything like wack-a-mole?



I like that vision....a bunch of gophers with judge's robes popping up..... ;D


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## zipperhead_cop (16 Oct 2007)

I'll be the first in line for that carnival game.  However, it could be tough to play.  There will probably be at least nine other games scheduled at the same time, and there is nothing saying that you're game will be first.  As for the play-ees, they will only pop up between 10 to 10:15 am (unless the had something else to do, and got a clerk to put a nice PostIt note on the door), then take a half hour break at 11:30, break for lunch at 1:00 pm, come back at 2:30 pm then decide there isn't enough time to have a decent game with the remaining time, and put over all of the rest of the games to another date six months in the future.  Then when six months rolls around, another one decides that the time it took to get the game going was "unreasonable" and cancells your game altogether.  
What fun!


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## GAP (16 Oct 2007)

I think you are holding something in......


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## geo (16 Oct 2007)

Heh, no worse than the Texas appeals court judge ...
Judge ordered the court clerk to close shop at 5PM even though the judge knew that a death row last minute appeal WAS coming down the pipes but that the lawyer's office was having computer problems and had asked for a 15 min extension... Death by lethal injection was carried out on time.


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## IN HOC SIGNO (16 Oct 2007)

geo said:
			
		

> Heh, no worse than the Texas appeals court judge ...
> Judge ordered the court clerk to close shop at 5PM even though the judge knew that a death row last minute appeal WAS coming down the pipes but that the lawyer's office was having computer problems and had asked for a 15 min extension... Death by lethal injection was carried out on time.



guess the lawyer should have got his paper work in a little sooner eh?


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## zipperhead_cop (17 Oct 2007)

IN HOC SIGNO said:
			
		

> guess the lawyer should have got his paper work in a little sooner eh?



Yeah, where is the negative in that story?  Good on that judge for not being jerked around and allowing more time wasting to do what needed to be done.


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## geo (17 Oct 2007)

zipp...
The lawyers were tardy - but they were stuck waiting for the publication from the US Supreme court WRT the status of Lethal Injections.  Without the decision, the lawyers didn't have a leg to stand on, with it they had all the justification in the world... Methinks that, based on the US SUpreme court's decision, this fella might be the last person to be put to death using these means.


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## J.J (6 Nov 2007)

Something I picked up on a CBSA site.

I spent nearly 2 hours of sheer hell at the border yesterday. If I had my way, I'd never set foot on the border again. If I were in my right mind I'd make a complaint, but I know it'd never go anywhere. These people will NEVER change or be held accountable for anything other than their worst criminal actions! 

I dealt with some of the rudest people I have ever had the displeasure of meeting there. They yanked the ID and papers from my hand as I was handing them over, leaving them crumpled and torn. They asked all sorts of stupid and irrelevant questions that had absolutely nothing to do with things. They yelled at me, they threw things at me, they called me the worst names and swore at me. They ran around like little dictators, barking orders and issuing demands like they owned the place themselves! 

I tried my best to explain who I was, what was going on, and what I was doing, but they wouldn't listen. They called me a liar and told me that I didn't have a clue what I was talking about. I was told quite plainly that they knew better than I did. Nothing I said seemed to convince them otherwise and they seemed determined to make an example of me. 

While the car was being searched they began slamming doors and throwing things on the ground and inside the back seat, pulling clothes out of the suitcases and strewing them about. It was ridiculous! They even went so far as to direct rude comments at my mother and spit on the ground in front of me like I wasn't even a human being. I was treated like an animal. 

When it was all over and done, why suprise surprise! EVERYTHING WAS APPARENTLY OK with the exception of having to pay a little tax. Big friggin deal. All this crap to deal with over such a petty thing as a few dollars! I mean, why didn't they just say that in the first place???? 

It's not like I know what my responsibilities are! I'm at the border every day because of my job and know exactly what I'm entitled to do and not do IN MY COUNTRY! RIGHT? 

I hope I NEVER have to see these snotty, holier-than-thou, vicious little bastards ever again. But I know that's not the case cause I hafta be back to work tomorrow and go thru the whole damned thing all over again cause I'm a CBSA officer. The public can be really nasty!    ;D


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