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Careless Driving - Abusive Officer/Illegal Search
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PostPosted: Fri Jul 09, 2010 10:48 am 
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Location: POLICE STATE - BLOCK ON416
I need advise on my careless driving charge.
My friends and I were heading to Kelso Beach, I had signalled and i pulled off to the shoulder as my car seemed to be making noise, but after riding over the shoulder the noise stopped, i signalled back again and merged back into traffic after making sure it was safe, the officer which was ahead of me on the shoulder a few meters away pulled me over. His first question was "are you going to the beach"(exact words), my brother replied, "yes kelso beach", the officer then stated, "bullshit, you f***ing liars, do you see the grey hair, you think i have been putting on this uniform for 20 years and i dont know what you are doing, you arent dealing with Halton police anymore, you are f***ing with the OPP now" he then proceeded to take my id registration, and insurance, and asked "Has anyone been drinking?" I replied, "i havent been". He asked for everyones ID in the car, my brother and one of the people in the vehicle did not have ID, the officer then said, "im arresting you two(towards the two people who had no ID) for not having ID with you" and took them to his squad car and sat them in the back. I cant quote this part as i dont know the exact words used but my brother has told me the officer kept asking about marijuana, and drugs, and that my brother and his friend should tell the officer right away if they had anything on them - they didnt have anything. The officer returned with my brother and his friend, and asked me to open the trunk, so i did, the officer went back there my brother followed as he felt this was uncalled for, as my brother approached the trunk the officer had a bag of one of the passengers in his hand opened and looking through it, my brother proceeded to question this the officer dropped it told my brother to get back in the car like he demanded and closed the trunk, the officer then went into his vehicle and came back and handed me a careless driving ticket the officer said, "im giving you a ticket for careless driving, trying to pass a truck on the shoulder." Im a very visual person, and i know infront of me was a small RV, and behind me was a Gold Honda Civic, I had to check to make sure it was safe to slow down to pull off to the shoulder, when i got off to the shoulder and heard no more noise i signalled and returned onto the highway infront of the Honda Civic which was well behind me still, so I was back in my original spot. This happened only yesterday on the 401 eastbound, I went straight to court to fight the ticket, and have contacted the Human Rights Legal Services who have forwarded me to the "Office of the Independant Police Review Director" where I am to file a complaint against the officer. I work in insurance and i know this ticket is on the same severity as a drinking and driving ticket, which could result in me as well as my parents being dropped from our insurance. Any help will be grealty appreciated.


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PostPosted: Fri Jul 09, 2010 1:34 pm 
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Sounds like you're already taking the correct steps by fighting the ticket and contacting the OIPRD. All I can suggest is that you might want to get each of the passengers to write their own statement of what happened, along with all of their contact info, for you to submit along with your complaint.

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Re: Careless Driving - Abusive Officer/Illegal Search
PostPosted: Fri Jul 09, 2010 10:57 pm 
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Joined: Sat May 29, 2010 7:19 pm
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Location: Hamilton, ON
.
Hi Jaycobian

Jaycobian wrote:
... the officer ... pulled me over. His first question was "are you going to the beach"(exact words), my brother replied, "yes kelso beach", the officer then stated, "bullshit, you f***ing liars, do you see the grey hair, you think i have been putting on this uniform for 20 years and i dont know what you are doing, you arent dealing with Halton police anymore, you are f***ing with the OPP now" he then proceeded to take my id registration, and insurance, and asked "Has anyone been drinking?" I replied, "i havent been". He asked for everyones ID in the car, my brother and one of the people in the vehicle did not have ID, the officer then said, "im arresting you two(towards the two people who had no ID) for not having ID with you" and took them to his squad car and sat them in the back. I cant quote this part as i dont know the exact words used but my brother has told me the officer kept asking about marijuana, and drugs, and that my brother and his friend should tell the officer right away if they had anything on them - they didnt have anything. The officer returned with my brother and his friend, and asked me to open the trunk, so i did, the officer went back there my brother followed as he felt this was uncalled for, as my brother approached the trunk the officer had a bag of one of the passengers in his hand opened and looking through it, my brother proceeded to question this the officer dropped it told my brother to get back in the car like he demanded and closed the trunk, the officer then went into his vehicle and came back and handed me a careless driving ticket the officer said, "im giving you a ticket for careless driving, trying to pass a truck on the shoulder."

... forwarded me to the "Office of the Independant Police Review Director" where I am to file a complaint against the officer ... Any help will be grealty appreciated.


You know... When I hear stories like this I get really depressed. Unfortunately it happens and it happens much more than it should.

The OIPRD does not take disciplinary actions, those remain the jurisdiction of the Chiefs of Police and Commissioner of the OPP.
https://www.oiprd.on.ca/CMS/About.aspx
OIPRD wrote:
Oversight
The OIPRD’s oversight role begins with the receipt of a public complaint and continues to the end of the investigation. The Chiefs of Police and Commissioner of the OPP are still responsible for discipline of police officers and holding disciplinary hearings.

I would do what Simon suggests:
Simon Borys wrote:
...All I can suggest is that you might want to get each of the passengers to write their own statement of what happened, along with all of their contact info, for you to submit along with your complaint.

But I would also seriously consider a civil lawsuit against the OPP Officer and the OPP. There is a limitation period to sue the OPP.

Take care.
.


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Re: Careless Driving - Abusive Officer/Illegal Search
PostPosted: Fri Jul 09, 2010 11:38 pm 
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Biron wrote:
There is a limitation period to sue the OPP.
.


How long is that period?

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PostPosted: Sat Jul 10, 2010 12:00 pm 
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Location: POLICE STATE - BLOCK ON416
should i be requesting the full disclosure now, or wait until my first attendance? and what do i do at my first attendance?


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Re: Careless Driving - Abusive Officer/Illegal Search
PostPosted: Sat Jul 10, 2010 4:55 pm 
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Joined: Sat May 29, 2010 7:19 pm
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Location: Hamilton, ON
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Hi Simon:

Simon Borys wrote:
Biron wrote:
There is a limitation period to sue the OPP.
.
How long is that period?


I don't know. The Crown is legally liable for the OPP.

http://www.e-laws.gov.on.ca/html/statut ... .htm#s50s1

All legal actions against the Crown are under the jurisdiction of the Proceedings Against the Crown Act. I did not find a limitation period there.

http://www.e-laws.gov.on.ca/html/statut ... 0p27_e.htm

I also reviewed the Limitations Act and found nothing specific, but that the basic limitation period is two years.

http://www.e-laws.gov.on.ca/html/statut ... _e.htm#BK4

If you find anything, please let me know. Thanks.

Cheers.
.


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PostPosted: Sat Jul 10, 2010 5:19 pm 
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Location: Ontario, Canada
Next time, give the officer your keys and ask him to open your trunk himself.

He does not have the right to search your trunk and you should never open it for him.

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PostPosted: Sat Jul 10, 2010 7:36 pm 
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Joined: Sat May 29, 2010 7:19 pm
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Location: Hamilton, ON
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Hi Admin:

admin wrote:
Next time, give the officer your keys and ask him to open your trunk himself.


The issue is whether or not Jaycobian gave authorization to the search voluntarily.

Giving the Officer the key to the trunk is not really different from opening the trunk for him. Both acts may be proven to have been done under compulsion, particularly under the circumstances described by Jaycobian.

Asking the Officer to open the trunk may not be a good idea, but I guess you meant "and let him open the trunk".

admin wrote:
He [the Officer] does not have the right to search your trunk and you should never open it for him.


I agree with you that you should never volunteer to open the trunk for a search to which you are not consenting.

However, under certain circumstances, the Officer has the right to search a vehicle, including the trunk. This can obviously be done with a warrant. A warrantless search may be conducted "in situations where exigent circumstances render it impracticable to obtain prior judicial authorization" R. v. Wiley, [1993] 3 S.C.R. 263

Some warrantless searches are specifically authorized by statute if probable grounds exist. For instance:

Liquor Licence Act wrote:
Search of vehicle or boat

32. (5) A police officer who has reasonable grounds to believe that liquor is being unlawfully kept in a vehicle or boat may at any time, without a warrant, enter and search the vehicle or boat and search any person found in it. R.S.O. 1990, c. L.19, s. 32 (5).

http://www.e-laws.gov.on.ca/html/statut ... .htm#s32s5

Cheers.
.


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PostPosted: Sat Jul 10, 2010 10:06 pm 
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From what I understood was that the trunk is a seperate compartment and can not be accessed during a routine traffic stop such as care less driving. However, Probable Cause can allow the officer to search the compartment.

But for example, if your towing a trailer. The police don't have the right to search that locked trailer, unless they have some sort of cause to do so. A trunk is the same thing.

So thats why I would say if they do want you to open your trunk, let the officer do it him/herself. That way its involuntary search. And they do need a warrant to search your locked compartments otherwise.

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PostPosted: Sun Jul 11, 2010 2:55 am 
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Joined: Sat May 29, 2010 7:19 pm
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Location: Hamilton, ON
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Hi Admin:

I think we are stating somewhat the same thing in different words.

One of the Supreme Court's decision and landmark respecting "unreasonable search" is R. v. Mellenthin, [1992] 3 S.C.R. 615.

Charter, s. 8 Everyone has the right to be secure against unreasonable search or seizure.

In that case it was determined that a police officer violated the defendant's protected right under s. 8 of the Charter, when during routine traffic check stop, an officer asked some questions of the driver and proceeded to inspect a gym bag on the front seat.
Quote:
The primary aim of check stop programs, which result in the arbitrary detention of motorists, is to check for sobriety, licences, ownership, insurance and the mechanical fitness of cars. The police use of check stops should not be extended beyond these aims. Random stop programs must not be turned into a means of either conducting an unfounded general inquisition or an unreasonable search.

http://scc.lexum.umontreal.ca/en/1992/1 ... 3-615.html

admin wrote:
From what I understood was that the trunk is a seperate compartment and can not be accessed during a routine traffic stop such as care less driving. However, Probable Cause can allow the officer to search the compartment.

But for example, if your towing a trailer. The police don't have the right to search that locked trailer, unless they have some sort of cause to do so. A trunk is the same thing.

So thats why I would say if they do want you to open your trunk, let the officer do it him/herself. That way its involuntary search. And they do need a warrant to search your locked compartments otherwise.


Actually, during a traffic stop, a police officer will lawfully search a vehicle without a warrant, if he/she has or acquires "articulable cause" or "probable grounds". I think that is the only difference between your view and mine.

In a different decision -albeit a divided decision- the Supreme Court determined that evidence (stolen property), obtained following a speeding traffic stop, was admissible at the trial because, after questioning a passenger, a police officer had acquire probable grounds to search the vehicle.

http://scc.lexum.umontreal.ca/en/1997/1 ... 3-341.html

It all comes to probable grounds and a reasonable expectation of privacy, framed under s.8 and subject to s. 1 of the Charter.

But that's just my opinion and I may be wrong.

Cheers.
.


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PostPosted: Sun Jul 11, 2010 4:39 pm 
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Hi Biron,

Yes we are on the same page, and I also just wanted to point that, your open vehicle can be searched, but not any closed and locked compartments that you yourself can not get access to while driving.

Let's say, even if you have a locked suitecase in your car, the officer would technically need a warant to search that locked suitecase. OR break your LOCK and enter.

Which is break and enter, and is illegal.

The Cause action will come in if he smells alcohol, or drugs, or suspects foulplay etc. He can ask you to open your trunk or closed compartments.

You can completely deny it at the spot. He will have to break your lock to get in. Most likely the officer won't do that without a warrant, or you can charge the officer for break and enter.

Remember, the officer pulled you over for a traffic ticket. His job is to issue you a ticket and thats about it!

Any searches are Extra and are based on a Probable Cause principle.

IF not, you can not only sue the officer, but the charges laid upon you can be completely dropped too.

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PostPosted: Sun Jul 11, 2010 6:32 pm 
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Technical point (and really it's just semantics), in Canada it's actually "reasonable grounds" as opposed to "probable cause."

Jaycobian wrote:
should i be requesting the full disclosure now, or wait until my first attendance? and what do i do at my first attendance?


If you have a court date, request it ASAP. The items you want to ask for with this disclosure request are a full copy of the officer's notes, any other reports the officer may have written in relation to this incident, and any photographic or video evidence, if any exists. Some websites will suggest asking for things like "witness will-say statements" or "criminal records," but don't ask for that. You won't get a criminal record of a witness for a criminal trial, so you definitely won't get it for an HTA charge. The disclosure request should be to-the-point and relevant, so you can find out what exactly the officer saw (or, more accurately, what he was thinking).

First Attendance is where you try to reach a deal with the Prosecutor to avoid an actual trial. I'd point out, if all of your friends would be reliable witnesses, then you have a strong case, and should aggressively push them to withdraw the charge. The Prosecutor will play a big huff-and-puff show to try to intimidate you into accepting a plea-bargain, so you need to decide what is best for you. That said, given the seriousness of the Careless Driving charge, I'd also recommend some sort of professional help.

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PostPosted: Sun Jul 11, 2010 6:35 pm 
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Radar Identified wrote:
Technical point (and really it's just semantics), in Canada it's actually "reasonable grounds" as opposed to "probable cause."



Been watching too much American T.V. :P

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Fax/Mail
PostPosted: Sun Aug 08, 2010 4:52 am 
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Joined: Fri Jul 09, 2010 10:11 am
Posts: 3
Location: POLICE STATE - BLOCK ON416
Still waiting on notice of trial,
but was wondering if anyone knows where i mail my disclosure request the court house was in Milton, Ontario. They have their own form so I would like to send my own from the ticketcombat site with some requests people here have recommended me to have on there. But ive searched for a fax number & address of the prosector but cant seem to find one

btw thanks again for all the help

also one more question, should i have my friends write an affidavd or have them just write their side of the story and have it notorized. Whats the difference?


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