OHTA.ca

By no means am I a lawyer!

The poster certainly seems to know what he's talking about!

http://www.mapleleafweb.com/forums//ind ... 5&start=45

Any rational thoughts on this?

The law is unconstitutional for several reasons.

Section 172(5) requires an officer to have reasonable and probable grounds. This proves a hearing is required before punishment can be imposed. Reasonable and probable grounds bear a standard of proof and onus of proof.

Thus, when an accused is charged, it is neither proven nor presumed that the accused has committed an offence, but there are reasonable grounds for believing that this has occurred. The laying of charges in the legal process does not involve a determination of guilt, thus, the presumption of innocence under s. 11(d) as a principle of fundamental justice under s. 7 of the Charter still applies and sanctions cannot be imposed until a determination of guilt has been entered.

The burden is on the government and the standard of proof is beyond reasonable doubt. The governments burden can only be discharged by a trier of fact in a court proceeding. But no proceeding is provided violating ss. 7 and 11(d) of the charter.

The principles of fundamental justice under s. 7 incorporate due process and natural justice. S. 172 violate both of them as no hearing is provided. As no hearing is provided s. 172 also violates s. 11(d), the right to be presumed innocent until proven guilty according to the law. The charter is part of the constitution and the constitution is the supreme law of Canada.

Section 172 is not justified or saved by s. 1 of the Charter.

Moreover, s. 128(14)(d) directly conflicts with s. 172.

Section 128 provides for a fine of $9.75 per kms over the speed limit when the driver is doing more than 50 kms over the speed limit. There is no licence suspension, vehicle impoundment, prison term etc.

Section 172 provides for a minimum $2000 fine, maximum $10,000 fine, seven day licence suspension, up to two year suspension upon conviction, seven day vehicle impoundment, and six month prison term.

It is a universal principle that when two provisions conflict the one that is most favourable to the accused must be adopted.

Most critically, offences in Canada were classified 30 years ago. Offences are either mens rea, absolute or strict liability offences.

R. v. City of Sault Ste. Marie, [1978] 2 S.C.R. 1299

S. 172 is an absolute liability offence.

Twenty-three years ago, the Supreme Court of Canada determined that absolute liability offences that contain terms of imprisonment are unconstitutional as they violate s. 7 of the charter. The term of imprisonment does not have to be mandatory, it may be optional, as s. 172 provides.

B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486

Thus, in accordance with s. 52 of the Constitution Act 1982 s. 172 is of no force and effect. In other words, it's not a valid law.

Critically, the Province might wish to claim it was unaware of B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486 until now but that is simple untrue. The Attorney General of Ontario intervened in R. v. Kanda, 2008 ONCA 22 and is well aware of the offence classifications and that a term of imprisonment is not permissible when attached to an absolute offence, which s. 172 is.

More than 8,000 people to date have be charged under s. 172 and up to 8,000 vehicles impounded, thus up to 24,000 criminal offences of thefts, mischeif and fraud have been committed by agents of the Province.

More importantly, the Attorney General argued in the case that the triggering words "no person shall," evince a clear intention to create an absolute liability offence. The court determined otherwise stating it is a strict liability offence. The court also cited the B.C. Motor Vehicle Act case. Therefore, the Attorney General has been aware since January, 2008 that s. 172 is unconstitutional and of no force or effect yet the Province continues to illegally charge citizens and impound vehicles.

In order to be reasonable, seizures and impoundments must be authorized by law. Here, impoundment is not reasonable or authorized by a valid law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someones property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding theft as everyone else.

R. v. Caslake, [1998] 1 S.C.R. 51

Therefore, the police are not operating under any valid law when they impound a vehicle and are not are not operating in the execution of any valid power or duty. What they are doing is stealing cars under s. 322 of the Criminal Code, committing mischief under s. 430, and fraud under s. 380.

A person is having their vehicle stolen and the police are allowing a third party to place a lien on your property. You cannot get your stolen property back unless you pay money, which is fraud.

If you are subject to an impoundment you are empowered under s. 494 of the Criminal Code to arrest the police office on the spot the second he acts to impound your vehicle.

Section 19 of the Criminal Code articulates that Ignorance of the law is no excuse and the police cannot blame the government for any wrong doing an officer commits.

A police officers duty and powers are articulated under s. 42 of the Police Service Act.

Section 42(3) of the Police Service Act states;

Powers and duties of common law constable

(3) A police officer has the powers and duties ascribed to a constable at common law.

At common law, these duties include "the preservation of the peace, the prevention of crime, and the protection of life and property."

Dedman v. The Queen, [1985] 2 S.C.R. 2.

The common law is no more immune from Charter scrutiny than is statute law, as the Supreme Court has repeatedly held, see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Daviault, [1994] 3 S.C.R. 63, and R. v. Stone, [1999] 2 S.C.R. 290.

Common law is made up of decisions of the court. The police officer are required to be aware of all decisons, as they are governed by them. Thus, as the court determined 23 years ago that absolute liability offences that contain terms of imprisonment are unconstitutional, the police officer who steals a car commits 3 criminal offence per incident.

You can also sue the officer for breach of duty of care for are damages you incur.

Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41

Moreover, Section 50(1) of the Police Service Act expressly states;

Liability for torts

50(1) The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.

The failure of a public officer to perform a statutory duty also constitutes misfeasance in a public office. Police Services Act s. 41(1) imposes on all Chiefs and Commissioners a freestanding statutory obligation to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act and the needs of the community. This includes an obligation to ensure that members of the police force do not injure members of the public through misconduct in the exercise of police functions.

The public complaints process allows the public to complain in respect of the conduct of a police officer. What an accused seeks, though, is not the opportunity to file a complaint that might result in the imposition of disciplinary sanctions, but, rather, compensation for the damage they have suffered as a consequence of the Chief and/or Commissioners inadequate supervision and misfeasance in office. The public complaint process is no alternative to liability in negligence.

A plaintiff cannot sue government for a policy decision; however, enforcement of that policy is an operational decision which gives rise to a duty of care.

Odhauji Estate v. Yoodhouse 120031 3 S.C.R ,263.

Section 1 of the Police Service Act articulates the principles Police are to respect and follow. The drivers whose vehicles are stolen by the police are victims of crime. They are being dumped at the side of the road when their vehicle is stolen and they are being smeared in the media when the police release their names and/or allow video of their car or the person themselves to be aired.

Section 1 states;

Declaration of principles

1. Police services shall be provided throughout Ontario in accordance with the following principles:

1. The need to ensure the safety and security of all persons and property in Ontario.

2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code.

...

4. The importance of respect for victims of crime and understanding of their needs.

The Police core services are articulated under s. 4 and indicate they are to prevent crime, not commit it, and they are to assist victims of crime, yet in stead, they dump them off at the side of the road after stealing their vehicles.

Core police services

4(2) Adequate and effective police services must include, at a minimum, all of the following police services:

1. Crime prevention.

2. Law enforcement.

3. Assistance to victims of crime.

4. Public order maintenance.

5. Emergency response.

The Province and the police operate under colour of law, but the law is not colour blind and no one is exempt from the law.

R. v. Mann, [2004] 3 S.C.R.59, 2004 SCC 52.

One of the most fundamental responsibilities of a government is to ensure the security of its citizens. In a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. It is one of the proud accomplishments of the common law that everybody is subject to the ordinary law of the land regardless of public prominence or governmental status. As was explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 240, the rule of law is one of the "fundamental and organizing principles of the Constitution", and at p. 258, it was further emphasized that a crucial element of the rule of law is that "[t]here is ... one law for all."

Thus, a provincial Premier is held to have no immunity against a claim in damages when he caused injury to a private citizen.

The following sections of the Highway Traffic Act are also unconstitutional.

Section 107(1), (2), (3), (4), (11) and (13). Section 107(15) states;

…"or to imprisonment for a term of not more than six months, or to both."

Section 112 (3).

…"or to imprisonment for a term of not more than three months, or to both"

Section 171(4).

…"or to imprisonment for a term of not more than six months, or to both."

Section 172.1(3).

…"or to imprisonment for a term of not more than six months, or to both."

Section 175(17).

…"or to imprisonment for a term of not more than six months, or to both."

Section 177(4).

…"or to imprisonment for a term of not more than six months, or to both."

Section 190(8).

…"or to imprisonment for a term of not more than six months, or to both."

Section 200(2).

…"or to imprisonment for a term of not more than six months, or to both

[/quote]

Moreover, s. 128(14)(d) directly conflicts with s. 172.

Section 128 provides for a fine of $9.75 per kms over the speed limit when the driver is doing more than 50 kms over the speed limit. There is no licence suspension, vehicle impoundment, prison term etc.

There can be up to a 30 day licence suspension for HTA 128 (speeding).

If the poster does not know this, being one of the easiest things to find, I have to wonder about the validity of the remaining mumble jumble that is written for accuracy.

I thought it was a good read. My favorite part:

If you are subject to an impoundment you are empowered under s. 494 of the Criminal Code to arrest the police officer on the spot the second he acts to impound your vehicle.

I'd like to see that on the next episode of Cops

OK now for the serious bit: R. v. Kanda (2008) clarified absolute and strict liability offences. An offence that has a penalty of imprisonment must be a mens rea offence not an absolute liability offence. It doesn't render that offence unconstitutional. It only changes the prosecution's burden of proof and the defence strategies that can be used.

Hopefully soon the street racing law will be found inconsistent with s 11(d) of the Charter (not s. 7). Until it is struck down, it is still in effect.

That was an interesting read.

Hopefully soon the street racing law will be found insonsistent with s 11(d) of the Charter (not s. 7). Until it is struck down, it is still in effect.

That sums it up nicely. The impoundment and other actions may be unconstitutional, but the the courts will decide that, and decide if Ontario must pay restitution to people who unfairly got their vehicles seized.

As for someone "arresting" an officer at the side of the road for attempting to impound a vehicle, I wonder how someone might actually try that. I'd imagine it would go something like this:

http://www.youtube.com/watch?v=5zQ0_d-BFM4

There are laws that have been passed in Canada that were unconstitutional or violated the rights guaranteed to us by common law precedent, such as Alberta's Press Bill or the actions of former Quebec Premier Maurice Duplessis. The laws were passed, then they were struck down by the courts in time. The Judiciary branch of government exists as a balance to the Legislative branch. When the Legislative branch passes laws that clearly violate our rights, the Judiciary can strike them down, but only if the case is brought before them.

There are so many ways that this law can be challenged it's not even funny. Many of them were articulated in the post. The big one is property seizure without recourse, appeal or a hearing. That said, arguing that the police are violating all kinds of laws by impounding vehicles won't really hold up at the roadside.

People have mentioned suing. So... If you believe that there was a malicious wrongdoing by the officer, why not sue? I know that there are challenges to the law itself that are before the courts. Are there any lawsuits pending regarding excessive or unwarranted use of the powers in this law?

In order to be reasonable, seizures and impoundments must be authorized by law. Here, impoundment is not reasonable or authorized by a valid law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someones property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding theft as everyone else.

R. v. Caslake, [1998] 1 S.C.R. 51

Therefore, the police are not operating under any valid law when they impound a vehicle and are not are not operating in the execution of any valid power or duty. What they are doing is stealing cars under s. 322 of the Criminal Code, committing mischief under s. 430, and fraud under s. 380.

R v Caslake is an incident involving a "Search Incident To Arrest".

MV stop for drugs, MV towed, and MV searched 6hrs later. The result of this case is that a WARRANT to search should have been obtained as there was no longer a legal reason to search "incident to arrest"

The Province and the police operate under colour of law, but the law is not colour blind and no one is exempt from the law.

R. v. Mann, [2004] 3 S.C.R.59, 2004 SCC 52.

One of the most fundamental responsibilities of a government is to ensure the security of its citizens. In a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. It is one of the proud accomplishments of the common law that everybody is subject to the ordinary law of the land regardless of public prominence or governmental status. As was explained in Reference re Secession of Quebec, [1998] 2 S.C.R. 217, at p. 240, the rule of law is one of the "fundamental and organizing principles of the Constitution", and at p. 258, it was further emphasized that a crucial element of the rule of law is that "[t]here is ... one law for all."

R vs Mann is an incident involving a "Search Incident to Arrest", pedestrian stopped as matching a subject description, pat down by officers, drugs located, charged. The search was conducted in good faith, and the evidence was found during a search which was so closely related to a legal search that it amounted to a small departure from what would have been permissible. The male is charged with a serious offence and the evidence is essential to the Crowns case. Here, it is the exclusion of the evidence, not its inclusion, which would bring the administration of justice into disrepute.

Two more misleading pieces of information located in the writer's post.......how many more are there?

killer job on the research sir

nice talking to you today

Tim

lawmen wrote:Section 172 is unconstitutional becaus [sic] of the prison term...The court can strike down the prison term portion but until it does the entire provision is unconstitutional.

OK now that the really offensive bits have been either censored or edited out, I'll respond. I understand the argument of absolute liability prison terms conflicting with s7 of the Charter. But do you understand Kanda? The courts won't necessarily strike down 172 based on s7. The potential for imprisonment forces prosecutors to prove mens rea in order to get a conviction for speeding under 172. Where's the conflict with the Charter?

My point was that the other argument, penalty before trial which violates 11d seems more likely to be successful on appeal. As far as I can tell, no one is being imprisoned for excessive speed.

Finally, are you arguing that a law is invalid until a court strikes out a particular provision, then the rest of the law becomes valid again??? This would be the exact opposite of what courts do. A law is in force until it is struck down in whole or a provision of the law is struck down in which case the rest of the Act remains in force.

Please keep posts clean, we are all here to help each other!

Even the wise guy on the other side has some ideas on this garbage law!

Please don't make me edit any posts!

lawmen wrote:You're an "cop."

I'm not relying on the cases, I'm relying on what he Supreme Court said...Wake up.

Yes, he's an cop, and he's also a valued member of and contributor to this board. In fact, his posts are particularly appreciated precisely because, though coming from the other side of the badge, they are rational, informed, clear, to the point, and maturely and respectfully expressed. The supportive and (generally) sophisticated atmosphere (well, "sophisticated" within reason -- I mean, doughnut jokes and Maserati cruisers aside... ) in here that he helps maintain is one of the things I like best about this board.

lawmen wrote:I'm not relying on the cases, I'm relying on what he Supreme Court said about law. Cops must be authorized by a valid law in order to do whatever it is they are doing. Wake up.

Please do not use case law in answers then, OR state why it affects the topic. That is why I stated what I did. When I read case law, I read into the situation and what happened and how to learn from it.

hwybear wrote:

lawmen wrote:I'm not relying on the cases, I'm relying on what he Supreme Court said about law. Cops must be authorized by a valid law in order to do whatever it is they are doing. Wake up.

Please do not use case law in answers then, OR state why it affects the topic. That is why I stated what I did. When I read case law, I read into the situation and what happened and how to learn from it.

This site is for information and there is no better place!

There is anti police sites and there are pro police sites, this site is in the middle, best of both worlds and that's why we are here!

hwybear wrote:

lawmen wrote:I'm not relying on the cases, I'm relying on what he Supreme Court said about law. Cops must be authorized by a valid law in order to do whatever it is they are doing. Wake up.

Please do not use case law in answers then, OR state why it affects the topic. That is why I stated what I did. When I read case law, I read into the situation and what happened and how to learn from it.

I cited the passage from the case in my message but you're right I should've used quotes and added the para I was referring to after the case. I think it's para 12.

Just to lighten the mood on this post..........................

BTW 'bear, love that new avatar........

Reflections...thanks....just changed my signature as well, hope you approve

I certainly want this site to remain fun and educational from all views! I will be the 1st to admit I have learned things on here and have changed my ways to be more competent.

You're sig is way funny!

I'm glad you're here. And you're clearly a decent guy and good cop. I read a bunch of threads now and see that you offer good advice and opinions. But I'm more impressed by the fact that you don't pretend to claim you know everything and admit you want to learn. Law is so vast its not really possible to know everything even if one is a cop. Most people exect cops to know everything, though.

The issues on here are serious so I have a hard time trying to add humour to them when I write. Don't be offended by anything I say about cops or the law. I know you didn't write the law and have a job to do. I don't hold that against you.