Author Topic: Police in Canada can now demand breath samples in bars, at home - Global News  (Read 11293 times)

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Offline tomahawk6

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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

Offline Good2Golf

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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:

Quote
[21]           Given the clarity and strength of the above common law principle, most of the case law has focused on those narrow situations where the police are given the authority to force entry into a dwelling, against the wishes of the owner, because of some statutory or common law power expressly authorizing such entry.  These so-called “exceptions” to the general rule include the following:

•                     Where the police are in “hot pursuit” or “continuous pursuit” of an offender who has “gone to his home while fleeing solely to escape arrest”.  See:  R. v. Macooh (1993), 1993 CanLII 107 (SCC), 82 C.C.C. (3d) 481 at paras. 19-25 (S.C.C.); R. v. Van Puyenbroek (2007), 2007 ONCA 824 (CanLII), 226 C.C.C. (3d) 289 (Ont. C.A.);

•                     Where the police, on reasonable grounds, believe that it is necessary to enter the premises in order to prevent the commission of an offence that would cause immediate and serious injury, or to protect life and safety by assisting a resident who is in potential danger.  See:  R. v. Godoy (1999), 1999 CanLII 709 (SCC), 131 C.C.C. (3d) 129 (S.C.C.); R. v. Sanderson (2003), 2003 CanLII 20263 (ON CA), 174 C.C.C. (3d) 289 (Ont. C.A.); R. v. Custer (1984), 1984 CanLII 2586 (SK CA), 12 C.C.C. (3d) 372 (Sask. C.A.);

•                     Where the police enter the premises in order to effect the arrest of a resident.  In order to come within this exception, an arrest warrant was not required prior to the advent of the Charter.  However, the post-Charter case law has narrowed the exception such that it now only applies where the police have obtained an arrest warrant prior to entry.  See:  Eccles v. Bourque, supra; R. v. Landry (1986), 1986 CanLII 48 (SCC), 25 C.C.C. (3d) 1 (S.C.C.); R. v. Feeney (1997), 1997 CanLII 342 (SCC), 115 C.C.C. (3d) 129 (S.C.C.);

•                     Aside from the above three exceptions, the common law did not recognize any broad residual “exigent circumstances” basis for forced entry.  See:  R. v. Silveira (1995), 1995 CanLII 89 (SCC), 97 C.C.C. (3d) 450 (S.C.C.); R. v. Feeney, supra, at para. 47.  However, Parliament subsequently enacted a number of statutory provisions allowing for warrantless entry of a dwelling house in “exigent circumstances”, provided that certain statutory criteria are met.  See, e.g. s. 11(7) of the Controlled Drugs and Substances Act, and ss. 487.11 and 529.3 of the Criminal Code.  In the latter provision, “exigent circumstances” are defined as “imminent bodily harm or death” and “imminent loss or imminent destruction of evidence”;

•                     Finally, various statutory provisions expressly authorize forced entry by the police, most importantly, s. 487 enacts the power to search a dwelling house with a search warrant.

Source: R. v. Zargar, 2014 ONSC 1415 (CanLII), par. 21, http://canlii.ca/t/g62dn#par21, retrieved on 2019-06-02.




Regards
G2G

Offline mariomike

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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.


Offline ballz

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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:

"
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....

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.
« Last Edit: June 02, 2019, 19:35:24 by ballz »
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Offline ballz

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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.
« Last Edit: June 02, 2019, 17:50:10 by ballz »
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Offline mariomike

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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.


Offline Brihard

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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.
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Offline Infanteer

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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.
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Offline meni0n

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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

Quote
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.

Offline ballz

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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.
« Last Edit: June 02, 2019, 22:56:21 by ballz »
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Offline daftandbarmy

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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) :)
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Offline mariomike

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, 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.

Offline Jarnhamar

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Quote from: 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.


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?

Quote

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?

Quote
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.

Quote

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 crap 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.
« Last Edit: June 03, 2019, 08:44:09 by Jarnhamar »
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Offline Brihard

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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.
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Offline SupersonicMax

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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.
« Last Edit: June 03, 2019, 09:38:57 by SupersonicMax »

Offline Bruce Monkhouse

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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.....
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Everybody has a game plan until they get punched in the mouth.

Offline Brihard

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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.
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline Fishbone Jones

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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.

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

I rest my case.
Corruption in politics doesn't scare me.
What scares me is how comfortable people are doing nothing about it.

Offline Bruce Monkhouse

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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.....
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Offline Brihard

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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.
Pacificsm is doctrine fostered by a delusional minority and by the media, which holds forth the proposition it is entirely possible to pick up a turd by the clean end.

Offline Fishbone Jones

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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
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Corruption in politics doesn't scare me.
What scares me is how comfortable people are doing nothing about it.

Offline daftandbarmy

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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:
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Offline Jarnhamar

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

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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.


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.

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.
« Last Edit: June 03, 2019, 18:36:07 by ballz »
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Offline Bruce Monkhouse

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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.
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