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Should have NOT been pulled over!!!
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PostPosted: Tue May 19, 2015 1:14 am 
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I am out on bail facing criminal charges. Police cruiser behind me runs my plates and notices I'm out on bail while waiting for my trial date. My conditions require me to be home daily between 9pm-6am. I was pulled over on an afternoon. When asked why I am pulled over the officer replies "Your conditions weren't clear".
What wasn't clear enough? This is not the first officer to take interest in me, just the first to pull me over. The others just follow me for a few kilometers and get lost. This one followed me for less than 10 seconds before turning the lights on. This is where I realize I don't have my driver's licence on me. I have insurance and ownership but no licence. So after calling dispatch and digging through my records the officer comes back after a solid 15 minutes and issues me a failure to suspend licence ticket.
Can I fight this ticket on the grounds that I should have not been pulled over in the first place?
I must provide a licence if the officer has a legitimate reason for pulling me over. I was pulled over because the officer didn't know if afternoon falls between the hours of 9pm and 6am. The other officers did but this one needed an explanation from dispatch.

Highway Traffic Act 33. (1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act. R.S.O. 1990, c. H.8, s. 33 (1).


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 1:58 am 
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The courts have upheld that motorists can be pulled over at any time to check the driver's documentation.

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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 11:53 am 
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argyll wrote:
The courts have upheld that motorists can be pulled over at any time to check the driver's documentation.


Agreed. In Ontario, officers can pull over any vehicle at any time to check for license, insurance, permit. They don't need any other reason other than you're behind the wheel of a motor vehicle. If there's no other valid reason for holding you and everything checks out, you should be free to go. Seeing how you didn't have your license, it's kind of hard to argue you shouldn't have been pulled over.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 2:36 pm 
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argyll wrote:
The courts have upheld that motorists can be pulled over at any time to check the driver's documentation.


Source?


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 3:19 pm 
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http://www.hrcr.org/safrica/privacy/r_ladouceur.html

http://en.m.wikipedia.org/wiki/R_v_Ladouceur

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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 5:32 pm 
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argyll wrote:
http://www.hrcr.org/safrica/privacy/r_ladouceur.html

http://en.m.wikipedia.org/wiki/R_v_Ladouceur


My immediate thoughts when you made that initial statement were that it is a blatant Charter infringement. This case acknowledges that, unfortunately without being able to read the entire case - I cannot understand the ruling. It contradicts random stops because it says...

"Per Dickson C.J. and Wilson, La Forest and Sopinka JJ.: The unlimited right of police officers to stop motor vehicles without any reason cannot be justified under s. 1 of the Charter. The evidence here, however, should not be excluded under s. 24(2) of the Charter."

It then goes on to say:

"The random stop constituted an arbitrary detention. The Crown's efforts to discharge its s. 1 onus must be viewed in the context of the s. 9 breaches sanctioned to date in meeting the objective of ridding the highways of dangerous drivers. Police officers are entitled to stop motorists at organized check points as part of the R.I.D.E. program to provide a roadside screening test of sobriety and to check for licences, insurance and mechanical fitness. The organized check point is available, therefore, as a means of detection of the unlicensed driver. This case may be viewed as the last straw. If sanctioned, a police officer could stop any vehicle at any time, in any place, without having any reason to do so. For the motorist, this would mean a total negation of the freedom from arbitrary detention guaranteed by s. 9 of the Charter.

The Crown has not demonstrated that this unrestricted power is a necessary addition to the impressive array of enforcement methods which are available. Random checking at a stationary, predetermined location infringes the right much less than the unlimited right contended for. It is somewhat more carefully designed to serve enforcement, and is less intrusive and not as open to abuse as the unlimited power sought to be justified. The roving random stop, by contrast, would permit any individual officer to stop any vehicle, at any time, at any place. The decision may be based on any whim. The unlimited power has the potential of being much more intrusive and occasioning a greater invasion of privacy."

Based on what I am reading, and correct me if I'm wrong or you have the full case law. The Supreme Court DID NOT rule that a police officer can randomly stop anyone whenever he wants 'based on a whim' because that gives them unlimited power that is not justified and infringes the Charter. They argued that R.I.D.E programs and random checkpoints are sufficient enough to deter motorists, and that infringes minimally on the Charter. They argued if this was sanctioned, it would give the police unlimited power - and refused to sanction it. (To my understanding)

Unless I'm mistaken here (feel free to point it out if I am because it's entirely possible) the ruling suggests that random stops (i.e - a police man pulling you over on the road) for no reason is not supported, reasonable and infringes on the Charter and is therefore not legal, contrary to your earlier statement.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 6:01 pm 
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bend wrote:
argyll wrote:
The courts have upheld that motorists can be pulled over at any time to check the driver's documentation.


Agreed. In Ontario, officers can pull over any vehicle at any time to check for license, insurance, permit. They don't need any other reason other than you're behind the wheel of a motor vehicle. If there's no other valid reason for holding you and everything checks out, you should be free to go. Seeing how you didn't have your license, it's kind of hard to argue you shouldn't have been pulled over.


Incorrect, unless you have a different source - the Supreme Court ruled exactly against this. They said random checkpoints are more than sufficient enough to deter drivers, there's no need for random stops as it's a blatant Charter infringement that isn't deemed necessary or reasonable.

To the second part, it is impossible to know if he had his license on him WITHOUT stopping him first. If they weren't legally permitted to stop him, that evidence would NOT be admissible in court, and cannot be used to prosecute him - in other words, there's absolutely no case if you can prove the stop was unlawful in the first place.

In regards to the complete situation at hand, the police officer is going to argue that he stopped you because you had a condition on your bail and he was unsure if it had been violated or not, which may be ruled sufficient. It wasn't random in the sense that he didn't just decide he felt like stopping you, he was actually confused by something and wanted to make sure something checks out - for that reason, the case may be difficult.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 7:16 pm 
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Sonic wrote:
To the second part, it is impossible to know if he had his license on him WITHOUT stopping him first. If they weren't legally permitted to stop him, that evidence would NOT be admissible in court, and cannot be used to prosecute him - in other words, there's absolutely no case if you can prove the stop was unlawful in the first place.


The point was he can be stopped at anytime to provide documentation. The OP believes the reasoning for his stop was an entryway, (which was probably warranted anyways based on the information the officer had in front of him) led to the officer getting his license. Getting his license doesn't hinge on a chain of events. Obviously, you don't agree. We'll agree to disagree.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 7:31 pm 
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bend wrote:
Sonic wrote:
To the second part, it is impossible to know if he had his license on him WITHOUT stopping him first. If they weren't legally permitted to stop him, that evidence would NOT be admissible in court, and cannot be used to prosecute him - in other words, there's absolutely no case if you can prove the stop was unlawful in the first place.


The point was he can be stopped at anytime to provide documentation. The OP believes the reasoning for his stop was an entryway, (which was probably warranted anyways based on the information the officer had in front of him) led to the officer getting his license. Getting his license doesn't hinge on a chain of events. Obviously, you don't agree. We'll agree to disagree.


He CAN'T be stopped at any time to provide documentation without cause. Are you not reading the case law in front of you? In law, there's a terminology called 'admissible evidence'. You can't use ALL the evidence you have in the cases where it was not obtained lawfully. For example, say you have an unregistered (illegal) gun in your home. If a cop decides he's in the mood to break down your door for no reason, walks in and finds the gun - he cannot charge you for holding it. The same applies to your rights to retain legal representation - if a police officer did not inform you of your rights to legal representation and then interrogated you and you confessed to murdering someone - none of that evidence is court admissible. Even though you, yourself, confessed to murder. The reason? Your Chartered rights were infringed, the gun was unlawfully attained/you were denied your right to legal representation and therefore it will NOT be admissible in court.

The ONLY time he can be stopped without cause is during (as noted by the Supreme Court) random checkpoints. In other words, when there is a checkpoint stopping EVERYONE that passes by to check for things. You cannot single out an individual for no reason at all. I'm not arguing that the officer stopped him for no reason at all (as noted earlier - bail conditions issue) - I'm just saying you cannot be "stopped at any time to provide documentation" without reasonable cause. The Supreme Court and Canadian Charter have laws against this - if you're going to constantly keep making comments like that - please CITE it - give us a source. You're misleading people with your comments here - the police have strict rules that have to abide by as well - unless you actually have evidence that a police officer can stop you at any time because he feels like it - please stop yourself from misleading people.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 8:05 pm 
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Here's the link to the decision. Read it or don't.
http://www.canlii.org/en/ca/scc/doc/199 ... ii108.html
argyle and bend are correct.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 8:12 pm 
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Decatur wrote:
Here's the link to the decision. Read it or don't.
http://www.canlii.org/en/ca/scc/doc/199 ... ii108.html
argyle and bend are correct.


Based on what? I just read it and it confirmed everything I was saying. The Supreme Court failed to give police the ability to stop any driver without cause.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 8:15 pm 
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Read the conclusion.


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Re: Should have NOT been pulled over!!!
PostPosted: Tue May 19, 2015 8:53 pm 
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I'll just post the key stuff right here:

Quote:
Conclusion



While the routine check is an arbitrary detention in violation of s. 9 of the Charter, the infringement is one that is reasonable and demonstrably justified in a free and democratic society. As a result, s. 189a(1) of the Highway Traffic Act is a valid and constitutional legislative enactment. There is no need to read the section down as did Tarnopolsky J.A. in the Court of Appeal or to qualify it in any way. Having come to this result, it is not necessary to deal with the arguments raised under s. 24(2).



The answers to the constitutional questions posed are:



1.Is section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198, as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, inconsistent with ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms to the extent that it authorizes the random stop of a motor vehicle and its driver by a police officer acting without any reasonable grounds or other articulable cause to believe that an offence has been committed, when such stop is not part of an organized procedure such as the R.I.D.E. programme?



Answer:Section 189a(1) of the Highway Traffic Act, R.S.O. 1980, c. 198 as amended by s. 2 of the Highway Traffic Amendment Act, 1981 (No. 3), S.O. 1981, c. 72, is not inconsistent with ss. 7 or 8 of the Canadian Charter of Rights and Freedoms but is inconsistent with s. 9.



2.If the answer to question 1 lies in the affirmative, can s. 189a(1) of the Highway Traffic Act be justified pursuant to s. 1 of the Charter?



Answer:Section 189a(1) of the Highway Traffic Act can be justified pursuant to s. 1 of the Charter.



The appeal is therefore dismissed.



And further above in the text:

Quote:
The means chosen is the incidental random spot check, not part of an organized program like R.I.D.E. and not a stop based on some articulable cause. It is now well settled that these latter methods of stopping drivers are justifiable under s. 1. (See Dedman, supra, Hufsky, supra, and the lower court judgment in this case, in particular the judgment of Tarnopolsky J.A. of the Court of Appeal.)



In my view the random stop is rationally connected and carefully designed to achieve safety on the highways. The stops impair as little as possible the rights of the driver. In addition, the stops do not so severely trench on individual rights that the legislative objective is outweighed by the abridgement of the individual's rights.


The majority decision of the SCOC was that it was permissible to randomly stop drivers, outside of a RIDE program.

EDIT: Just to add, agree or disagree, that's what they said. Truth be told, I haven't been "randomly" stopped. I've been stopped often enough for legit reasons, namely the fact that I tend to drive with the pedal on the floor (not that I suggest others do the same).

To steer this back on track, for the OP: The best avenue for this one is to try to take it to trial, or an early resolution. It's a very easy charge for them to prove. When you go to court or the First Attendance meeting, you can try explaining to the Prosecutor you made a mistake, you realized it when the officer stopped you, etc. Sometimes they have bigger fish to fry and withdraw the charge, or they offer something else. No guarantees, but that's about your best option at this point. Or, there's an isolated chance the cop may not show up for the court date (don't bet on that one).

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Re: Should have NOT been pulled over!!!
PostPosted: Wed May 20, 2015 12:08 am 
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Oh wow, my apologies here to you guys. I obviously need to spend a few more years becoming well-versed in the law regarding the HTA. It's contradicting because in criminal law, they cannot stop you without reasonable cause. When charged with an offence, you are in theory being criminally charged (as opposed to civily) - therefore the laws regarding the Charter 'should' be in affect.

I disagree with:
Quote:
Officers can stop persons only for legal reasons -- in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle.


Simply because, giving cops this privilege allows it to be a 'witch hunt'. What stops cops from racial profiling, what stops cops from being nuisances to certain individuals because they can? Nothing. Particularly, the case ruled one of the reasons for approving this as the 'cost of programs' such as RIDE, etc, organized stops not being reasonably affordable in rural areas - I find that a poor excuse. In reading over the law, it's hard to get all the facts right now because I can't access the act they are citing (due to changes in the HTA) - but it serves no purpose in arguing against the SCC no matter how absurd I may find it.

Once again apologies, I was wrong in the matter.

Quote:
Finally, it must be shown that the routine check does not so severely trench upon the s. 9 right so as to outweigh the legislative objective. The concern at this stage is the perceived potential for abuse of this power by law enforcement officials. In my opinion, these fears are unfounded. There are mechanisms already in place which prevent abuse. Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver's licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds. Where a stop is found to be unlawful, the evidence from the stop could well be excluded under s. 24(2) of the Charter.


Concerning the bolded - the irony of it is, now, 25 years later - that can be seriously disputed, in multiple facets, but I won't get into that.


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Re: Should have NOT been pulled over!!!
PostPosted: Wed May 20, 2015 1:37 am 
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Sonic, the bits you were quoting were the dissenting opinion of the minority judges. It was a split decision.

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