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MP struggle to enforce mental health laws

brihard

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PuckChaser said:
Concur, very informative.

From an outsider looking in, does this mean HTA offenses (speeding, rolling stop, etc) on the Base are not enforceable? Or is it because its on the Base, its a Federal facility and the MPs have jurisdiction from some law that's not the HTA?

The latter. The Government Property Traffic Regulations make it an offense on government property to operate a motor vehicle in contravention of the laws of the province or municipality. Some offences (speeding, license, registration, signs, traffic control devices) are written right into the GPTR, and for anything else, the 'cathall' section 6(1) gets it- rules of the road type stuff.
 

RedcapCrusader

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PuckChaser said:
Concur, very informative.

From an outsider looking in, does this mean HTA offenses (speeding, rolling stop, etc) on the Base are not enforceable? Or is it because its on the Base, its a Federal facility and the MPs have jurisdiction from some law that's not the HTA?

It's enforceable, we just can't write Provincial Violation Tickets for the offences. We have to issue Appearance Notices.... So depending on how minor the offence is, it's not even worth doing anything more than just giving a warning and public education.
 

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Haggis said:
For the record, I find this to be a fascinating discussion, regardless of the seriousness of the original topic. Keep up the great and informative discussion.  :salute:
:nod:
 

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garb811 said:
Ack, had some confirmation bias going there based on a conversation with a ex-MP who went RCMP and we both ended up in Ottawa many moons ago.  At the time when he stated he couldn't enforce provincial and I just extrapolated that out at the time as being valid for all non-provincial contract pers across Canada.
And that's the current work around, which does suck royally.  Best thing to do is to equate it kind of like what happens with Breathtechs/SFST qualified pers/DRE...if we don't have someone qualified then we reach out for that anyway, same goes vice versa in locations where the local police are a small Det and we have those pers avail.
Brihard is right Lunchmeat.  Unfortunately there are a lot of MP who misunderstand what the Contravention Act is all about and think it is the Holy Grail we need. While it would be a great step forward in Alberta and Saskatchewan (where the outcome of a GPTR offence is a mandatory appearance in Federal Court) it is only a small step.

You are right though in that the CFPM wants to have a consistent solution across Canada as concurrently as possible but I don't think he is willing to avoid giving the green light in provinces that end up ahead of the game...not that any of this is going to happen in his tenure, or the next...or probably even the next after that.

I know that we would need to be defined in the Police Act/Peace Officer Act, but from my interpretation is that the Contraventions Act was a two way street. It not only allowed Fed Regs to be enforced as a provincial matter, but also allowed provincial offences to be enforce via the Contraventions Act. Nobody had ever really explained it very well, mainly because we couldn't touch provincial anyway.


I know PM Delaney has been working hard, but there is only so much he's able to do as a Chief of Police, the solution has to come from a lawmaker.
 

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I was just lurking in the background here and I am curious about something.  Lunchmeat mentioned the CFPM wants us recognized in each province the same and until that happens then it's as per.
My understanding of the changes is that the JAG had recommended to the CFPM base on theyre interpretations of the constitution act (BNA) of 1867 which they believe does not allow the provinces to give authority to allow the military to enforce provincial statues.

IF that's the case they how could anything, shirt of amending the co stituion change that.

Sidenote I have always believed that interpretation was wrong
 

brihard

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LunchMeat said:
It's enforceable, we just can't write Provincial Violation Tickets for the offences. We have to issue Appearance Notices.... So depending on how minor the offence is, it's not even worth doing anything more than just giving a warning and public education.

I assume you're in a province that's not a signatory to the Contraventions Act then? That sucks... having to attend court for any minor traffic thing that would elsewhere be a ticket is definitely a pain in the rear.
 

Retired AF Guy

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Fascinating reading I must say! I do have a couple of questions:

First, if I'm reading things right, it appears that I, a lowly security guard working on a base in certain circumstances (e.g. Ontario Trespass to Property Act) have more powers to detain someone than the Military Police do? and

How does the Section 494 (Citizens Arrest) of the CCC, apply to MPs?
 

garb811

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Retired AF Guy said:
Fascinating reading I must say! I do have a couple of questions:

First, if I'm reading things right, it appears that I, a lowly security guard working on a base in certain circumstances (e.g. Ontario Trespass to Property Act) have more powers to detain someone than the Military Police do?
No.  Military Police have full authority to deal with trespassing issues.  Provincial trespassing laws have no force or affect on a Defence Establishment.  On a base it is contrary to the Defence Controlled Access Area Regulations (DCAARs) and if a charge were to be laid it would be Section 288 (Breach of regulations respecting defence establishments, works and materiel) of the National Defence Act, which is one of the offences in the National Defence Act that is triable by Civil Courts.  There is a misconception that the National Defence Act offences only apply to members subject to the Code of Service Discipline but Part VII of the NDA applies to everyone in Canada. 

Off topic, but interesting from my point of view given the popular belief that a reservist can't be charged for failing to attend a parade night, they can.  Section 294(1) creates the offence of "Failure to attend Parade".  Although anytime I have brought this offence forward to a JAG officer for consideration they have gone white as a ghost and started to sweat profusely, I'm not sure why any reservist would take the chance of being charged with this as the fine is a staggering $50 for each offence for an officer and $25 for each offence for a non-commissioned member.  [:'(

How does the Section 494 (Citizens Arrest) of the CCC, apply to MPs?
This applies to MP who effect an arrest off a Defence Establishment that has no military nexus. As long as the offence was sufficiently serious that the intervention of the MP was required to prevent death or grievous bodily harm, all things being equal the MP won't face official consequences from intervening; but that intervention will have been done as a civilian and not a MP or Peace Officer.  Problems arise when it becomes apparent that a MP is "looking" for stuff off base or acted outside the scope of even Section 494, at which point action will be taken.
 

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garb811 said:
No.  Military Police have full authority to deal with trespassing issues.  Provincial trespassing laws have no force or affect on a Defence Establishment.  On a base it is contrary to the Defence Controlled Access Area Regulations (DCAARs) and if a charge were to be laid it would be Section 288 (Breach of regulations respecting defence establishments, works and materiel) of the National Defence Act, which is one of the offences in the National Defence Act that is triable by Civil Courts.  There is a misconception that the National Defence Act offences only apply to members subject to the Code of Service Discipline but Part VII of the NDA applies to everyone in Canada. 

Off topic, but interesting from my point of view given the popular belief that a reservist can't be charged for failing to attend a parade night, they can.  Section 294(1) creates the offence of "Failure to attend Parade".  Although anytime I have brought this offence forward to a JAG officer for consideration they have gone white as a ghost and started to sweat profusely, I'm not sure why any reservist would take the chance of being charged with this as the fine is a staggering $50 for each offence for an officer and $25 for each offence for a non-commissioned member.  [:'(
This applies to MP who effect an arrest off a Defence Establishment that has no military nexus. As long as the offence was sufficiently serious that the intervention of the MP was required to prevent death or grievous bodily harm, all things being equal the MP won't face official consequences from intervening; but that intervention will have been done as a civilian and not a MP or Peace Officer.  Problems arise when it becomes apparent that a MP is "looking" for stuff off base or acted outside the scope of even Section 494, at which point action will be taken.

Thanks!!
 

brihard

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garb811 said:
No.  Military Police have full authority to deal with trespassing issues.  Provincial trespassing laws have no force or affect on a Defence Establishment.  On a base it is contrary to the Defence Controlled Access Area Regulations (DCAARs) and if a charge were to be laid it would be Section 288 (Breach of regulations respecting defence establishments, works and materiel) of the National Defence Act, which is one of the offences in the National Defence Act that is triable by Civil Courts.  There is a misconception that the National Defence Act offences only apply to members subject to the Code of Service Discipline but Part VII of the NDA applies to everyone in Canada. 

Off topic, but interesting from my point of view given the popular belief that a reservist can't be charged for failing to attend a parade night, they can.  Section 294(1) creates the offence of "Failure to attend Parade".  Although anytime I have brought this offence forward to a JAG officer for consideration they have gone white as a ghost and started to sweat profusely, I'm not sure why any reservist would take the chance of being charged with this as the fine is a staggering $50 for each offence for an officer and $25 for each offence for a non-commissioned member.  [:'(
This applies to MP who effect an arrest off a Defence Establishment that has no military nexus. As long as the offence was sufficiently serious that the intervention of the MP was required to prevent death or grievous bodily harm, all things being equal the MP won't face official consequences from intervening; but that intervention will have been done as a civilian and not a MP or Peace Officer.  Problems arise when it becomes apparent that a MP is "looking" for stuff off base or acted outside the scope of even Section 494, at which point action will be taken.

Interestingly I was having this discussion with a recently minted MP today. The situation I posed was the MP is on a municipal street between defense establishments, and so happens to end up being a clearly impaired driver who they feel presents a danger to the public. S.2 C.C. deems MPs as peace officers for criminal matters. R. v. Seguin, 2016 ONCJ, though it dealt with RCMP executing a traffic stop in these circumstances absent provincial authority, seems to logically apply to MPs as well. The judge found there to be a common law authority and indeed a public expectation for a police officer to act to protect public safety even where no explicit grounds exist for a vehicle stop.

You're the chain of command for an MP who, finding themselves on civilian streets behind a clearly impaired driver, with no provincial statute authority, pulls them over on public safety grounds and conducts a successful impaired driving investigation. What are you saying to them when they get back to the office?

Is R. v Seguin on the MP radar at all yet? I would contend it ought to be.
 

garb811

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putz said:
I was just lurking in the background here and I am curious about something.  Lunchmeat mentioned the CFPM wants us recognized in each province the same and until that happens then it's as per.
My understanding of the changes is that the JAG had recommended to the CFPM base on theyre interpretations of the constitution act (BNA) of 1867 which they believe does not allow the provinces to give authority to allow the military to enforce provincial statues.
Gah...people make their living off of studying and arguing Constitutional Law but here's a Coles Notes, layman's version, based on looking at this in relation to MP and our duties along with a couple of Political Science courses a decade or so ago...

Yes, the provinces can unilaterally give us the authority to enforce provincial statutes.  At the end of the day, it is provincial law and if they decided they wanted to give the authority to enforce provincial statutes to everyone who drives a 1978 Green Ford Mustang, that is within their authority to do so.  What they can't do is "force" us to enforce those statutes, nor can they make us accountable for breaches of those provincial statutes (ie. any police act I've looked at has oversight and disciplinary sections) and they can't use that mechanism to backdoor provincial legislation into force on a federal property.  The ironic outcome of that would be we could enforce provincial legislation everywhere but the base...

In Canada, laws cannot be imposed on a higher level of government by a lower level of government, nor can a level of government issue laws which are outside its Constitutional mandate.  Hence, since National Defence is enshrined within the Constitution as a Federal mandate, the premier of a province can't issue a law authorizing the formation of a provincial militia or national guard or whatever.  By the same token, the Federal Government can't pass legislation which imposes upon a provincial issue.  That is why instead of having a uniform Highway Traffic Act, or Mental Health Act or your choice of any other provincial act from coast to coast, we have different laws in each province addressing the exact same issues.

This barrier is why we're having problems.  Just because the Defence Establishment (or any federal government property) is in a province doesn't give the province the power to pass legislation that is directly applicable to the Defence Establishment.  Some things happen in concurrence with provincial legislation due to the "good neighbour" policy.  An example of this are messes and the serving age.  Alcohol is a provincial issue, hence the varying ages of legal consumption across Canada.  When I first got in, as long as you were a member of the CAF you were allowed to drink in the mess no matter what your age; that included 16 year old members of the militia.  At some point, and I don't remember exactly when, the messes were directed to comply with the provincial liquor acts with regard to age of consumption. 

Sometimes we don't have a choice because we want something that the province controls, again, alcohol as an example.  You want to buy business quantities of alcohol for the mess or the Canex liquor store?  Better have a liquor licence or it isn't going to happen. 

On other issues, DND and the CAF is very firm in keeping that line in the sand.  That is why occupants of RHUs don't have recourse to the provincial landlord and tenant appeal boards, why you will never see a provincial health inspector in a CAF kitchen, why provincial labour laws don't apply to us etc.

And that is why contracting law enforcement out to the local police force of jurisdiction isn't the simple fix.

IF that's the case they how could anything, shirt of amending the co stituion change that.
The solution is an enabling act at the Federal level which then allows the provincial legislation to be enforced, as has happened with the Government Property Traffic Act. Unfortunately, once that enabling act is law, any amendments to the provincial legislation propagate automatically into force as soon as they become law without the need to gain Federal approval.  That is why instead of the GTPA and GPTRs being very generic letting us enforce the entirety of the provincial legislation, there are restrictions, caveats and stand alone offences which also exist in the provincial law.  And that is why there hasn't been an overarching law passed that enables all provincial laws on federal property.

Sidenote I have always believed that interpretation was wrong
As much as I hate to have to admit it, on this one I'm on the side of the lawyers. 

 

garb811

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Brihard said:
Interestingly I was having this discussion with a recently minted MP today. The situation I posed was the MP is on a municipal street between defense establishments, and so happens to end up being a clearly impaired driver who they feel presents a danger to the public. S.2 C.C. deems MPs as peace officers for criminal matters. R. v. Seguin, 2016 ONCJ, though it dealt with RCMP executing a traffic stop in these circumstances absent provincial authority, seems to logically apply to MPs as well. The judge found there to be a common law authority and indeed a public expectation for a police officer to act to protect public safety even where no explicit grounds exist for a vehicle stop.

You're the chain of command for an MP who, finding themselves on civilian streets behind a clearly impaired driver, with no provincial statute authority, pulls them over on public safety grounds and conducts a successful impaired driving investigation. What are you saying to them when they get back to the office?

Is R. v Seguin on the MP radar at all yet? I would contend it ought to be.
We give our folks latitude with regard to issues like Impaired driving as long as they have been acting in good faith.  So, if someone was on a direct route between the base and an armoury to do a security check at 2am and came across an impaired driver, they form RPG, initiate the stop, immediately have the police of jurisdiction notified and have them attend, and then clear the scene as soon as practicable once they are no longer needed, all is good.  Problems arise when it becomes obvious that someone is going out of their way to try to find incidents outside the base.

There is case law supporting MP stops off jurisdiction as well provided the civilian police take it over. Unfortunately though, R v Nolan dictates that our Peace Officer status over civilians is confined to Defence Establishments or criminal acts which occurred on a Defence Establishment. So, although we won't give them grief, they really are out on a limb as they are acting under Section 494 and they need to fully understand that which, from my experience, most don't initially...

I'm personally not tracking R v Seguin but will look it up for sure.
 

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This is the best thread currently going on Army.ca

Keep it coming, guys!
 

brihard

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garb811 said:
We give our folks latitude with regard to issues like Impaired driving as long as they have been acting in good faith.  So, if someone was on a direct route between the base and an armoury to do a security check at 2am and came across an impaired driver, they form RPG, initiate the stop, immediately have the police of jurisdiction notified and have them attend, and then clear the scene as soon as practicable once they are no longer needed, all is good.  Problems arise when it becomes obvious that someone is going out of their way to try to find incidents outside the base.

There is case law supporting MP stops off jurisdiction as well provided the civilian police take it over. Unfortunately though, R v Nolan dictates that our Peace Officer status over civilians is confined to Defence Establishments or criminal acts which occurred on a Defence Establishment. So, although we won't give them grief, they really are out on a limb as they are acting under Section 494 and they need to fully understand that which, from my experience, most don't initially...

I'm personally not tracking R v Seguin but will look it up for sure.

Very interesting, thanks. I'm surprised that the expectation would be to wipe their hands of it and clear scene, given that they will be the only ones with the driving evidence, may well be the ones to administer a roadside ASD, and will likely be the ones forming RPG to arrest... Given how quickly an impaired investigation can go (usually under ten minutes from initial stop, through an ASD fail if applicable, to arrest and breath demand), could your guys not easily find themselves with one in custody in the back of the car and the clock ticking to get those samples 'forthwith'?

I completely understand your guys aren't to be out 'hunting' for traffic stuff, that's fair. RCMP in Ottawa only recently have eased up on this too, though there's now a much greater acceptance of doing traffic work. It helps that there are federal parkways in Ottawa under the NCC, and that Ottawa based members will be traveling all over the city to check on embassies, residences, and other federal sites. There is a very strong argument to be made that  a modest contribution to municipal policing along those lines (which in this context Ottawa Police are fine with) also helps officers to keep up their basic road skills and officer safety skill, lest they atrophy over years of embassy watching. I have to imagine that in some locations MPs may face similar challenges in getting much experience dealing with different things...

I'll add to the chorus here- this has been a fun, informative, and useful conversation.

Seguin is an interesting case. The impaired investigation itself did not fare well, but the verdict about common law authority to execute vehicle stops for the purposes of public safety was critical, particularly since the ON HTA does not give RCMP any statutory authority to use lights and sirens and pull someone over.  I can't say for sure how it will apply to you guys, but I would be surprised were it not informative.


EDIT TO ADD: I just re-read Seguin, and also read Nolan - I had not read that previously. Interesting, Seguin specifically engages Nolan as a comparable case. Seguin

My take? An MP proceeding directly from one military establishment to another for duty related purposes should clearly still be within the scope of their duties, similarly to how Nolan examined that issue for purposes of determining of Criminal Code peace officer status applied. I think the law would here find the border of an MP's peace officer' status under the criminal code. An MP on duty, engaged in the scope of routine MP duties and accepted military practice, should retain that peace officer status. In the event they were to truly incidentally encounter a threat to public safety, such as a clearly dangerous driver, a violent act in progress, etc, I believe the common law authority discussed in Seguin would apply.

It could go either way in court, ultimately, depending on the strengths of the positions the opposing lawyers presented and the mindset of the judge. But I certainly feel that an MP, moving through civilian turf off base on the way to their next lawful duties, who finds themself behind a clearly dangerous driver who may be impaired, would be justified and acting in good faith if they did a vehicle stop and entered into an impaired driving investigation. I believe the legal razor's edge on this one would also lean in favour of an MP who, in such good faith, acted to protect the public from potential harm at the hands of an impaired driver. I would hope that a member choosing to make the traffic stop in these circumstances would enjoy the support from their chain of command they they may not get from their own conscience should they choose to allow the driver to continue.

I could see some other factors coming into play- road conditions, traffic volume, things like that that speak to the danger to the public from the driver. I don't think these would at all interface with the member's common law authority for the stop, *but* given circumstances like the presence of other traffic, they could lend weight to the expectation that a person driving a car marked 'police' will act to stop a drunk driver.

Further to 'Hmmm..." MP in the circumstances I describe attempts a stop, and the driver takes off. Would the flight from police charge stick? If they fled (and let's assume here no pursuit - MP immediately pulls over and turns off their lights) and a few minutes later causes an accident, could liability fall ont he MP for attempting the stop? Or, MP finds themself behind a drunk driver (let's say in Ottawa, on the way from responding to a call at Uplands to the detachment at NDHQ via the Airport Parkway and Bronson to the 417), finds themselves behind the drunk driver on the parkway, sees numerous dangerous driving behaviours indicating impairment, follows, advises dispatch, who in turn advise OPS, who due to typical call volume take a few minutes to get a car rolling that way... As the car continues onto Bronson and traffic gets heavier, they blow a red light at Sunnyside and smoke a couple pedestrians crossing Bronson with the MP car directly behind watching the whole thing. What liability upon the CAF for the MP not initiating the traffic stop? What do you as the detachment sergeant tell them as their conscience rips them apart?

I completely understand why this subject would cause some MPs to shudder, but it's worth thinking and talking about.
 

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Interesting read for sure. I imagine the railway police deal with a lot of the same issues being a national police service with railway property throughout Canada.
 

Haggis

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Brihard said:
But I certainly feel that an MP, moving through civilian turf off base on the way to their next lawful duties, who finds themself behind a clearly dangerous driver who may be impaired, would be justified and acting in good faith if they did a vehicle stop and entered into an impaired driving investigation. I believe the legal razor's edge on this one would also lean in favour of an MP who, in such good faith, acted to protect the public from potential harm at the hands of an impaired driver.

We covered a similar "what if" regarding the authority of CBSA officer to act away from the Port of Entry.  In this scenario, a BSO (MP) is transiting between CBSA (DND) locations and observes a civilian police officer engaged in a struggle that he is quite clearly losing with no other civilian police assistance evident or in sight.  What authority does the BSO (MP) have to act in such circumstances using, if required, up to lethal force to protect the civilian cop from grievous bodily harm or death?  I know CBSA's position on this, but what is the MP position?
 

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Haggis said:
We covered a similar "what if" regarding the authority of CBSA officer to act away from the Port of Entry.  In this scenario, a BSO (MP) is transiting between CBSA (DND) locations and observes a civilian police officer engaged in a struggle that he is quite clearly losing with no other civilian police assistance evident or in sight.  What authority does the BSO (MP) have to act in such circumstances using, if required, up to lethal force to protect the civilian cop from grievous bodily harm or death?  I know CBSA's position on this, but what is the MP position?

MP is the same.

We are uniformed, and clearly identifiable to the public as a Police/Peace Officer and have a duty to act in events which life and limb are at risk. MPs are also afforded the same protections as if they were acting within their jurisdiction.
 

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Haggis said:
We covered a similar "what if" regarding the authority of CBSA officer to act away from the Port of Entry.  In this scenario, a BSO (MP) is transiting between CBSA (DND) locations and observes a civilian police officer engaged in a struggle that he is quite clearly losing with no other civilian police assistance evident or in sight.  What authority does the BSO (MP) have to act in such circumstances using, if required, up to lethal force to protect the civilian cop from grievous bodily harm or death?  I know CBSA's position on this, but what is the MP position?

Hell, that's easy, an MP or BSO status needn't even come into play.

S.25(1)(c) C.C.:
25 (1) Every one who is required or authorized by law to do anything in the administration or enforcement of the law...
...(c) in aid of a peace officer or public officer, or...
...is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Further, S.34(1) C.C.:
34 (1) A person is not guilty of an offence if
(a) they believe on reasonable grounds that force is being used against them or another person or that a threat of force is being made against them or another person;
(b) the act that constitutes the offence is committed for the purpose of defending or protecting themselves or the other person from that use or threat of force; and
(c) the act committed is reasonable in the circumstances.

They don't even need any special powers to assist the civilian police officer or to use force in that officer's defense.

I've been in the position of being alone in a fight by the side of the road well out of town. My backup was booking it, but was still a good five minutes out, and that's a long time in a ground fight. I wasn't losing, but I wasn't winning either, and he was a big boy and amped up on something potent. Also turned out to be in possession of two knives. I was about to have to start doing real damage to him to get him under control and end the fight, but fortunately a passing motorist stopped and assisted me in effecting the arrest.

LunchMeat said:
MP is the same.

We are uniformed, and clearly identifiable to the public as a Police/Peace Officer and have a duty to act in events which life and limb are at risk. MPs are also afforded the same protections as if they were acting within their jurisdiction.

Interestingly, this brings us back to the 'behind the drunk driver' scenario. What is the difference in law or policy between a uniformed MP in a civilian area stepping in to stop an act of violence that they witness, versus pulling over a car being driven in a clearly dangerous manner?
 

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LunchMeat said:
MP is the same.

Good to know.  In the vein of this discussion, I'm glad to see there aren't caveats attached to MP which would rule out acting in exigent circumstance, as would be the case here.

Interestingly, this brings us back to the 'behind the drunk driver' scenario. What is the difference in law or policy between a uniformed MP in a civilian area stepping in to stop an act of violence that they witness, versus pulling over a car being driven in a clearly dangerous manner?

It would likely come down to the officer's ability to articulate the danger, as he perceived it, of the subject's driving (something that is lacking in R v Seguin) which could then fall under s. 249(1)(a) "Dangerous Driving".  In the case of a violent act, the perception of the act as violent (e.g. assault with a weapon, clear physical disparity) is as subjective as the perception of driving as dangerous, except under egregious circumstances (e.g. striking objects, persons etc.).  So, as you said, "clearly dangerous" driving could easily equate to "act of violence" in the eyes of the officer witnessing it.
 
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