Do Your Driving Convictions Really Disappear After 3 Years?

By: Simon Borys · August 27, 2010 · Filed Under Criminal Law, Public Interest · 3 Comments 

Records of Convictions for Provincial Charges in Ontario

Do your driving convictions really disappear after 3 years?  Simon says, “No!”  Keep reading to find out more about how the government keeps provincial offence records and what happens to them after three years.

Background Information on Provincial Offence Records

First some background information on provincial records.  The Ministry of the Attorney General in Ontario keeps records of individuals’ convictions for all provincial charges, the most common Acts being the Highway Traffic Act (HTA), the Compulsory Automobile Insurance Act (CAIA), and the Liquor Licence Act (LLA).  However these records are kept on an antiquated system, known as ICON, and are not easily searchable by police officers in the course of their regular duties.  These records are primarily for the courts to maintain and use.  ICON records are kept longer than three years.

This means that police officers aren’t likely to know about your underage drinking or public intoxication tickets when they run your name, unless you are dealing with the service that issued you the ticket, then they will probably have record of it on their own computer system.

MTO Records of HTA and CAIA Charges

The Ministry of Transportation (MTO) also keeps a records system, known as PARIS (Plate and Registration Information System).  PARIS is accessed through the CPIC (Canadian Police Information Center) software, which is readily available to all police officers.

PARIS keeps track of individuals through their driver’s licence number and only deals with driving related provincial offences, namely Highway Traffic Act and Compulsory Automobile Insurance Act charges.  It also keeps records of any driver’s licence suspensions, regardless of what they were from (i.e. medical, unpaid fines, racing, criminal conviction, etc).  The PARIS record is what people are referring to when they speak of their “driving record”.

When a police officer runs (checks) your driver’s licence number, they will see your licence status and your convictions on PARIS, as well as any points you have accumulated from those convictions.  Police services in Ontario (with the exception of the OPP and MTO enforcement officers) only have access on PARIS to the last three years worth of convictions and demerit points (although points actually regenerate after only two years).

The Three Year Myth

The fact that most officers can only see the last three years worth of convictions, coupled with the fact that insurance companies usually only ask about your last three years, has led to the myth that driving convictions are wiped off your record after three years.  This is not the case!  PARIS keeps records of your convictions indefinitely, it’s just that most officers can’t see them.  The OPP and the MTO, however, can.  So remember this the next time you are asked if you’ve had any tickets in the past!

Simon Borys

From my blog: Simon Says, Category: Police Myths

Does A Police Officer Have To Show Up For Court?

By: Simon Borys · August 5, 2010 · Filed Under Criminal Law, Evidence · 2 Comments 

From my blog: Simon Says, Category: Police Myths.

Does A Police Officer Have to Show Up For Court?

Today, in my continuing saga of addressing Police Myths, I will be answering the question “does a police officer have to show up for court?” Although it is well known that officers sometimes do not show up for traffic court, Simon Says: Yes, they do have to attend court!

Attending all levels of court to give evidence in both criminal and provincial offence matters is one of the duties of a police officer. Section 42 (1) (e) of the Police Service Act lists one of an officer’s duties as “laying charges and participating in prosecutions” (that means showing up for court). Usually, this duty is also spelled out explicitly in the police service’s policies and procedures. The Court Attendance policy of the service I used to work for stated, “Members shall attend court as specified in the procedure.” In fact, later in the policy, under the duties of the Officer in Charge, it states that they are to take disciplinary action against an officer who did not attend court as required.

So why do officers occasionally not show up for traffic court? Most people have heard of someone who went to court to fight a traffic ticket, was told the officer wasn’t there, and had the ticket withdrawn.

The reason for this is usually that the officer got tied up dealing with something on the road and was not able to finish it in time to get to court. Officers start their shifts early in the morning (usually 7:00 am), which gives them plenty of time to get involved in something by the time court is scheduled to start (usually 9:30 or 10:00 am). Due to the nature of situations an officer deals with on the road, they can’t always just stop what they’re doing to go to court.

The other most common reason is that the officer is on holidays or sick.

In either case, without the officer to give evidence, the crown prosecutor likely has no reasonable prospect of obtaining a conviction, which leaves them with two choices. They can either bring a motion to adjourn the matter to a latter date or withdraw the charges. Which option they choose depends on a number of factor, primarily the seriousness of the offence. In criminal court, the crown will always bring a motion to adjourn, and it will probably be granted by the Judge. In provincial offences court it is far more likely that the crown will withdraw, especially if there are civilian witnesses who would be inconvenienced by having to return on another date.

The important thing to remember about this myth is that it is not up to the officer’s discretion whether they will attend court. Regardless of what they have said when issuing a ticket or what impression they left you with, they must attend court unless they are physically unable to do so.

Simon Borys

The law of street protest in Canada

By: Pulat Yunusov · July 4, 2010 · Filed Under Civil Rights, Legal Reform · 9 Comments 

The events of the G20 weekend in Toronto raised important legal issues and exposed gaps in our law. Are street protests legal and when can the police break them up? Can the police have special powers when world leaders are in town? How did we go from guaranteed freedoms of expression and peaceful assembly to a third-world style detention centre for protesters and police “kettling” of citizens at Queen and Spadina? What is the law of street protest in Canada?

The starting point for any analysis is the guaranteed freedoms of expression and peaceful assembly in sections 2(b) and (c) of the Canadian Charter of Rights and Freedoms. We start here because these freedoms are secure from any government body, including the federal parliament and provincial legislatures.

There is no absolute freedom of assembly in Canada. First, the Charter itself limits it by guaranteeing only “peaceful” assembly. That’s why the government can restrict certain kinds of assembly that it considers not peaceful. Such restrictions do not infringe on the Charter freedom of assembly unless the courts disagree with the government’s interpretation of what’s “peaceful.”

Second, the Charter freedom of peaceful assembly is guaranteed only “to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society” (s. 1 of the Charter). It means legislative acts or judge-made common law in Canada can limit even peaceful assembly, but they must have very good reasons. Legislative acts include federal and provincial laws and regulations as well as municipal by-laws.

Only law can limit a Charter right. A police officer cannot limit a Charter right on his or her own initiative without any authority in law. When the police break up a street protest, they can do it either because the protest is not peaceful or because law prohibits the protest for a good reason acceptable in a free and democratic society. Police officers may not break up a protest in any other circumstances. If they do, these officers will be breaking the law. But in Canada, it’s hard to tell when officers break the law for the following reason.

Laws regulating protests in Canada give the police a lot of discretion in deciding, first, what assemblies are peaceful, and second, when peaceful protests are not allowed. Police discretion contradicts the values of accessibility and precision that gave rise to the s. 1 requirement that limits on Charter rights be prescribed by law. The idea is that citizens should have a “reasonable opportunity to know what is prohibited” (Peter W. Hogg, Constitutional Law of Canada, Student Ed. 2007 at p. 798)—that’s accessibility of law, and that officials must not engage in discriminatory and arbitrary breaches of rights—that’s precision of law.

But in R. v. Hufsky and R. v. Ladouceur, the Supreme Court held that as long as police discretion comes from law, it meets the s. 1 standard of “prescribed by law,” even if the discretion is unfettered. So completely random stops of cars authorized by an anti-drunk driving law are capable of s. 1 justification, but pulling over a car merely on a hunch as in the recent landmark case of R. v. Harrison cannot be justified by s. 1 because it is not prescribed by law.

There are five types of law that regulate street protests, and all of them give enormous discretion to the police. First, s. 63 of the Criminal Code prohibits “unlawful assembly,” which it defines as “three or more persons” gathered in a way that causes reasonable people in the neighbourhood to be afraid that the assembly will either disturb the peace tumultuously or provoke others to do so. This provision apparently complies with the Charter guarantee of “peaceful assembly” because words “disturbing the peace” and “tumultuous” imply that the assembly is not peaceful.

Second, s. 31 of the Criminal Code gives the police a general power to detain people for “breaching the peace.” The result is that street protests that breach the peace may be dispersed. The breach of peace arrest power seems to restrict the freedom of assembly without infringing on the Charter’s guarantee of peaceful assembly. Again, the police have discretion in deciding what is a breach of the peace.

Third, municipalities can pass by-laws prohibiting street protests that are not peaceful because they interfere with interests merely local in nature. For example, a by-law may prohibit excessively loud protests. It’s unclear if such prohibition fully respects the Charter, where the word “peaceful” may have a more dramatic sense than merely something touching on city noise by-laws.

Fourth, the police can use their ancillary common-law powers to regulate protests (in Ontario, see s. 42(3) of the Police Services Act). At common law, the police have powers that are necessary to discharge their duties. One of the duties of the police is to preserve the peace. If it is necessary to restrict a street protest to preserve the peace, the common law gives this power to the police. Again, apparently such police restriction would not infringe on the freedom of peaceful assembly, and again the police has tremendous discretion.

Finally, municipalities, provincial legislatures, and the federal parliament and respective cabinets can pass laws, regulations, and by-laws restricting the freedom of peaceful assembly, but only for a good reason. For example, it may be reasonable and democratic to prohibit protests in residential areas after 11 pm, in construction zones, on highways, or inside courthouses or secret military installations. If protesters challenge such law, the government will have to justify it under s. 1 of the Charter.

In a 1978 pre-Charter case Dupond v. City of Montreal, the Supreme Court upheld a city ordinance prohibiting street protests. The court cited the following English law dictum: “A claim on the part of persons so minded to assemble in any numbers, and for so long a time as they please to remain assembled, upon a highway, to the detriment of others having equal rights, is in its nature irreconcilable with the right of free passage.” After the Charter, it is not clear if municipalities still have the power to prohibit street protests.

The word “peace” is a common thread in all the laws that regulate street protest. These laws either give the police powers to preserve the “peace” at its discretion or ignore the peaceful nature of the protest for other arguably higher goals.

When the police boxed citizens in at Queen and Spadina for hours, they could invoke any of three sources of authority to break up protests disturbing the peace: s. 63 of the Criminal Code, breach of the peace provisions of the Criminal Code, or common law ancillary powers to preserve the peace. All three would require the police to make a judgement that the protest was not peaceful. Since the statute delegates this judgement to the police or recognizes its common-law authority to make that judgement, the courts would likely defer to the police expertise to decide what is peaceful and what is not.

The police could also rely on a statute that allowed it to disperse even peaceful protests. According to witnesses, some officers cited the Public Works Protection Act (PWPA) when they detained citizens on the street. That law does limit the freedom to peaceful assembly in places designated as public works, and it would probably be justified under s. 1. After all we don’t want protests in a courthouse or maybe within the G20 fence. But justifying the mass detention at Queen and Spadina, which was hundreds of meters from the G20 fence, by the PWPA is futile. And it’s clear the police didn’t need the PWPA authority there as they had plenty of discretion under other laws.

The bottom line is our courts and legislatures have consistently failed to set out rules for police engagement of street protests. The statutes are either drawn in broad terms like “tumultuous” and “peace” or simply avoid regulating protests by deferring to broad police powers at common law. Canada is not a police state—far from it. Our ideal is the rule of law and protection of civil liberties. But just like with ideals, we shouldn’t take our eyes off frightening possibilities. In a police state, armed agents of the state are free to limit freedoms and rights as they please. Their discretion is completely unfettered, almost like the discretion our laws grant to the police in dealing with street protests.

Our police forces are professional, highly trained, and generally honest. But it is not their job to determine the content of the Charter freedom of peaceful assembly. Provincial legislatures and the federal parliament must step in and give clear guidance to the police when they can break up street protests. The police can make mistakes and may have its own institutional interests that are not necessarily the same as the public interest. The people have a right to clear notice of what is lawful, and we all have a fundamental freedom of peaceful assembly. Our legislators must set out with much greater precision what the police powers are in regulating street protests.

Pulat Yunusov is a Toronto litigation lawyer.

(Post sponsored by AdviceScene)

Civil liberties suspended in Toronto during G20?

By: Lawrence Gridin · June 29, 2010 · Filed Under Civil Rights, Criminal Law, Politics, Pop Culture, Privacy · 8 Comments 

The G20 summit in Toronto has come and gone, but not before leaving a trail of destruction in its wake.  I’m not just referring to all the shattered glass and burned out husks of police cars; I’m talking about Torontonians’ faith in the rule of law.

Riot police, some with tear gas launchers, stand guard at Queen’s Park on June 26, 2010. Queen’s  Park was the designated protest zone. This photo was taken at about 7:20pm, just minutes before police moved in to clear out the park. Photo: Lawrence Gridin.

Our Ontario police forces, particularly the Toronto Police Service, are some of the finest and most professional in the world. They have worked hard to build community relations and win the respect of the public. Just as we rely on the police to keep us secure, the police rely on public cooperation to effectively do their jobs.

A peaceful demonstrator plays his guitar for a wall of riot police at the intersection of University Ave and Queen Street, June 26, 2010. Photo: Lawrence Gridin.

When the public trust in police is diminished, and people begin to see the police as an enemy, it puts our safety in jeopardy. That is precisely what is happening. The police are coming under heavy criticism for the perceived overzealous tactics they used this weekend. I have heard of many strong supporters of the police, some of whom were caught up in the mass detentions, beginning to question whether their support was misplaced.

The front page of the Office of the Independent Police Review Director’s website has been changed to add a special notice about G20-related complaints. I suspect the new bureaucratic agency will have to expand just to handle all of them.

Preliminary reports of apparent civil rights violations are coming in from all over the city. The Canadian Civil Liberties Association says that these were not isolated incidents.

I saw many with my own eyes. I was in downtown Toronto to take photos of this once-in-a-lifetime event. What I saw terrified me and broke my heart.

The disgraceful actions of a relatively small, hardcore group of criminals running amok in the city have been used to justify the biggest suspension of civil liberties in Toronto’s history.

Peaceful protesters and onlookers at the designated “free speech zone” in Queen’s Park were attacked with batons, pepper spray, and rubber bullets with little or no warning (I was there; I heard none). Nine hundred people were rounded up and arrested, including credentialed journalists, pedestrians walking their dogs, and even a TTC worker in full uniform. Ordinary people at Queen and Spadina were surrounded on all sides by riot police. One by one, seemingly for no reason at all, people were snatched from the trap by force and then disappeared behind a wall of riot police. The fear is vividly captured in this video (watch the whole thing or just  skip ahead to 7:30).

A photo of a holding cell taken during a media tour of the G20 Prisoner Processing Centre in Toronto. These cages were filled with 20 people at a time. There is no door on the Port-a-Potty at the back. Photo: Kevin Masterman, Toronto Police Public Information Unit.

Those arrested were taken to the Eastern Ave. Detention Centre, a specially constructed temporary facility. What happened inside that facility is not yet fully known. Openly homosexual and transgendered people allege that they were segregated into separate cells by homophobic police. Women have made shocking accusations of being threatened by their jailors with rape. The unconfirmed allegations made by Amy Miller in this video are so terrifying that they defy belief.  At the very least, corroborated reports describe the conditions inside as deplorable:

Cramped and filthy cells, mismanagement and disorganized paperwork, lack of food, water and toilet paper, and denial of legal aid and access to lawyers.

Taylor Flook said she spent almost 24 hours in detention before being released without charge and witnessed strip searches of women by male officers, as well as sexist remarks made by several officers.

Hundreds of people have since been released without charge; the vast majority of those arrested weren’t doing anything illegal in the first place!

And then there was the controversial G20 security law. A regulation, quietly passed by the Ontario cabinet under the Public Works Protection Act, empowered police to stop and search anyone attempting to enter the G20 security perimeter. Police Chief Blair now admits that he deliberately misled the media and public as to the scope of the law. He claimed (and the media reported) that it covered a 5-meter area outside of the fence. In fact there were only a few areas outside of the fence which were covered by the regulation. I was misled too (hey, I can admit a mistake).

Trouble is, apparently the Chief failed to tell his own officers about the limited scope of the law. They were enforcing that law all over Toronto, even though it didn’t apply there. When pedestrians far from the security zone were stopped by police, and demanded to know the source of the police authority, they were told: “Public Works Protection Act, you can look it up.” I myself saw people stopped and searched in this manner.

Police stop and search the bags and persons of two cyclists who rode too close to the security fence at Bay and Front Sts. The cyclists were riding along Bay, away from the security entrance, when police shouted for them to stop and come back to be searched. Photo: Lawrence Gridin.

Closer to the security zone, people who were just cycling by, with no intention of trying to enter, were stopped and told they had to surrender their bags for a search or be arrested. Despite the Chief’s claims that “if they refuse and they have the right to refuse, then they leave and they will leave without being arrested,” these people had no option to leave.

Elsewhere, people were stopped on the street and subjected to searches without reasonable suspicion that they were involved in a criminal offence. They were told they were under investigative detention. In the video below, a woman is stopped at King and University (a fair distance from the security zone) and told she must submit to a search of her bags or face arrest. While the officer was polite and respectful, I’ll let you decide whether he violated ss. 8, 9, and 10(b) of the Charter (hint: see R. v. Mann, 2004 SCC 52 and R. v. Suberu, 2009 SCC 33).

After what I saw this weekend, I believe that the government must call a public inquiry into what happened. I fear we will discover that civil liberties throughout Toronto were effectively suspended — the most troubling encroachment on civil rights in Canada since the FLQ crisis. There are lessons to be learned. The police have admitted that mistakes were made. We must have a full accounting of those mistakes to ensure that they are not repeated.

The legality of G20 police cordons in Toronto

By: Pulat Yunusov · June 24, 2010 · Filed Under Civil Rights · 2 Comments 

Toronto is a changed city this weekend. Various police forces have cordoned off a big part of downtown searching and checking IDs of those wishing to enter. We in Canada are not used to ID checks and car searches on public streets. Canadians are usually free to walk in public areas, and the police cannot stop people and force them to show ID or even answer questions without a good reason to suspect them of a crime. When a big part of a crowded and bustling city becomes off limits, many people will probably wonder if G20 is worth it. Many lawyers will perhaps ask a different question: does the police have the power to cordon off downtown Toronto. The answer is yes.

The simplest and shortest explanation is in s. 10.1(2) of the Foreign Missions and International Organizations Act (FMIOA), which charges the Royal Canadian Mounted Police (RCMP) with the security of “intergovernmental conferences” in Canada. Section 10.1(2) of the act expressly grants the RCMP the power “to take appropriate measures, including controlling, limiting or prohibiting access to any area to the extent and in a manner that is reasonable in the circumstances.” The Integrated Security Unit that includes the RCMP is responsible for securing G8/G20 events. The RCMP’s role is “the Summit site and surrounding areas,” so presumably it is the RCMP that has cordoned off a part of downtown Toronto. It has a statutory power to do so.

An Act of Parliament grants the RCMP this power to cordon off streets. That ends the real-life analysis. But imagine there was no law like that or imagine the Toronto Police tried to cordon off a few blocks in Toronto. Would the police still have the cordon-off power? This is an interesting theoretical question because many police powers do not come from statute, and it’s important to know when the police exceed their authority. The FMIOA doesn’t apply to Toronto police, and Ontario’s Police Services Act and City of Toronto Act don’t grant the cordon-off power to the Toronto Police Service. (The FMIOA presumably allows the federal government to delegate RCMP’s cordon-off power to other police services (s. 10.1(4)), but let’s pretend it’s not the case.)

In Ontario, police powers come not only from statute (express acts of the provincial legislature or the federal parliament) but also from common law (courts’ judgements). Police existed before any act of parliament incorporated it, and during that period courts had the final word on police powers. When legislatures recognized police powers under statute, sometimes they continued police powers that existed at common law. Under s. 42(3) of the Police Services Act, “[a] police officer has the powers and duties ascribed to a constable at common law.” This provision allows the courts to continue to adjudicate police powers not expressly granted by the legislature.

When Canadian courts resolve a dispute in which a complainant questions the existence of a police power, they apply the Waterfield test, named after an English case that explained police powers at common law (also known as the ancillary police powers). A court applying this test would see first if a police action interfered with personal liberty or property without statutory authority. If yes, the court would see if “(a) such conduct falls within the general scope of any duty imposed by statute or recognised at common law and (b) whether such conduct, albeit within the general scope of such a duty, involved an unjustifiable use of powers associated with the duty.” (R. v. Waterfield [1963] 3 All E.R. 659 (C.C.A.) at 661). Basically, at common law the police can do anything necessary to discharge their lawful duties as long as the use of their powers is justified.

Judicial precedents guide us as to what is justified. For example, in Knowlton v. R., a 1975 Supreme Court decision, the court held that cordoning off the sidewalk in front of a hotel hosting a foreign leader is justified. A photographer who tried to break through the cordon was arrested and charged with obstruction of police. Part of the reason for closing the sidewalk was a previous assault on this foreign leader in another Canadian town. This and the fact that everyone knew about the widely publicized assault helped the court conclude that the cordoning off was justified even if the police didn’t explain their legal authority to the photographer. The court held that the photographer should have known the police had a duty to protect the foreign dignitary in these circumstances. The photographer also had a chance to get his pass but missed it.

I haven’t heard of a court case that looked at something on the scale of G20 events in Toronto, but Knowlton gives us some idea what a court would say. It would emphasize the history of violence at such events and the massive publicity reaching probably every resident of Canada. Closing off the downtown core is not the same as blocking a sidewalk but the number of dignitaries is many times higher and it’s common to believe that the world is less secure today than 35 years ago. The courts would likely defer to police judgement on the size of the cordoned area given the courts’ relative ignorance of operational security issues. The reasoning will be similar to the rationale behind s. 10.1(2) of the FMIOA. The police would tell the courts that cordoning off a chunk of downtown Toronto is necessary to protect foreign leaders and keep order and the way they do it is justified. The court would likely accept that.

Presumably, if cordoning off passes the Waterfield test, it will also be justified under s. 1 of the Charter. (I am not going into detail on this, but see R. v. Clayton, 2007 SCC 32 for a related discussion.) Of course, unless a court finds that we have a Charter right to freely go downtown, s. 1 won’t even come up.

I am not happy with the G20 summit’s impact on Toronto. It will hurt downtown businesses (except hotels), cause traffic chaos, and bring clashes between the police and protesters. Having to show ID and submit to searches to move around your own city is a sacrifice of our liberties and it simply looks bad in a democracy. Walls separating city quarters are notorious in history, and we probably don’t want any resemblance here. But the police likely have full legal authority to cordon off streets for the G20 summit, and any challenge to such cordons should be not legal but political.

Pulat Yunusov

(Post sponsored by AdviceScene)

Weird Legal News: Ancient Archery Law and God’s Ambassadors on the Bench

By: Lawrence Gridin · June 20, 2010 · Filed Under Humour, Pop Culture · Comments Off 

Here’s another digest of some articles I collected this week that are either funny, interesting, or just plain weird.

  1. Wiltshire vicar revives ancient archery law – BBC
    A vicar in England has relied on an unrepealed law from the middle ages to require all men in her village to report to archery practice. Residents complying with the law were rewarded with a BBQ. No word on what happened to the violators.
  2. San Diego Christian lawyers lose bids to be judges – CBS
    A quartet of Christian lawyers vowing to be “God’s Ambassadors on the bench” will not be donning judicial robes — at least not in this electoral cycle. Critics raised concerns that the lawyers’ religious agenda would threaten the impartiality of the court system and violate the separation of church and state. Nevertheless, the candidates won between 35-40% of the votes in their respective districts.
  3. Cop Caught Flashing Lights, Speeding To Get Coffee – CBS
    A New York City traffic cop is under investigation for abusing his power to get to a Dunkin Donuts.  The donut-desiring cop was spotted unnecessarily using his emergency lights, speeding, blowing through stop signs, and weaving in and out of traffic, all while chatting on his cell phone. When a city councilman caught this misbehaviour on camera, the cop stopped to give him a ticket for his troubles!
  4. Predictions are fine, but there are better ways to protect a population – The Guardian
    After a magnitude 6.3 earthquake struck Abruzzo, killings hundreds, the Italian government swung into action. Its response was to issue manslaughter indictments for seismologists who failed to predict the quake! Not surprisingly, the international scientific community is protesting the charges, given that earthquakes are presently impossible to predict.

The previous installment of Weird Legal News is here.

New Roadside Alcohol Suspensions: Bill 203 Explained

By: Simon Borys · June 1, 2010 · Filed Under Criminal Law · 9 Comments 

From Simon Says: Providing relevant information on policing and law

On May 1, 2009, amendments to the Highway Traffic Act (Sections 41-48) came into effect, as did three new Ontario Regulations (403/08, 405/08, and 407/08), as part of Bill 203, the Safer Roads for Safer Ontario Act.

Although we have just passed the one year anniversary of the legislation coming into force, there still seems to be a great deal of confusion about it. The purpose of this article is to dispel any remaining confusion over this legislation.

The purpose of this aspect of Bill 203 was to increase the penalty for drivers who blew in the “warn range” for blood alcohol concentration (B.A.C.), from what was then a 12 hour licence suspension to an escalating 3, 7, or 30 day suspension, with additional consequences.

These amendments did not change the B.A.C. level which qualifies as a “warn”, as some people have come to believe. This seems to be the most prominent misconception about Bill 203. The “warn” limit was, and is still, .05 to .08 B.A.C., or 50 to 80 milligrams of alcohol in 100 milliliters of blood. Under .05 B.A.C. is legal, unless you have a graduated Class G or Class M licence (G1, G2, M1, M2). Over .08 B.A.C. is, of course, illegal and qualifies you to be arrested and charged with Over 80 under Section 253 of the Criminal Code.

I encountered this mistaken impression about the “warn” level a great deal when I was on patrol after Bill 203 was enacted. I believe that the confusion stemmed from the wording used to advertise the new penalties. In print and on television, advertisements warned of “New roadside suspension for people who blow a .05.” Many people took this to mean that the limit had been lowered and people would now have their licence suspended for blowing a .05, however, that was always the case and the only thing that was new was the length of the suspension.

Prior to Bill 203, when police administered a roadside screening device to a driver who blew a “warn”, that driver got their licence seized by the police for 12 hours, after which time they could attend the police station and get it back. These suspensions were not recorded on a person’s driving record and there were no additional penalties or consequences. If a person drove during this 12 hour window they were technically driving on a suspended licence. However, it is not likely that anyone would know, except the officer who seized their licence, since the suspension was not recorded to CPIC (the Canadian Police Information Center), which any police officer can and would check during a traffic stop.

Now, under the new amendments, a driver blowing a “warn” will automatically have their licence suspended for 3 days and there are escalating penalties for repeat offenders. If a driver blows a “warn” again within 5 years, their licence will automatically be suspended for 7 days. If a driver blows a “warn” a third time, within 5 years of the second time, their licence will be automatically suspended for 30 days.

Since these suspensions are more than 12 hours long, they are entered onto CPIC for their duration, which allows any officer encountering the person in that time frame to know that their licence is under suspension. These suspensions are issued on the authority of the police officer, at the roadside and the authority extends to international driving permits and licences of other jurisdictions, as well as Ontario licences. This new legislation notwithstanding, police can still suspend the licence of a novice driver who has a blood alcohol level under .05 using the old 12 hour procedure.

If caught driving during this time on a suspended licence, a person can be subject to a fine of up to $5,000 and 6 months in jail. In my experience, Justices of the Peace do not take kindly to people driving when they have been told not to and jail time is not uncommon for this offence, even though it is only quasi-criminal.

The additional consequences for blowing a “warn” are as follows. Upon the second suspension, the driver will be required to complete a remedial alcohol program with the Ministry of Transportation and their licence will automatically be suspended indefinitely if they fail to complete the program. Upon the third conviction, the driver will be subjected to the remedial program again as well as to an ignition interlock condition on their license for a minimum of 6 months after their license is reinstated. This means that they are required to have an ignition interlock device installed in their vehicle and they are prohibited from driving any vehicle not equipped with one. Fines for violating ignition interlock conditions can be up to $1,000.

Another new consequence for blowing a “warn” is that, once the suspension is lifted, the person is required to pay a $150 reinstatement fee to the MTO to get their licence reactivated. This was not the case with the 12 hour suspensions, since the licence was not officially suspended with the MTO, it was just held by police for 12 hours.

One interesting feature of Bill 203 is the addition of Section 48 (9) to the Highway Traffic Act, which explicitly states that, “There is no appeal from, or right to be heard before, the suspension of a driver’s licence under this section.” This section has been greatly contested by some, who feel that it violates the rights guaranteed under Section 11 (d) of the Charter, “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.” Since there is no trial process for licence suspensions, and no right to appeal, the police officer is, in effect, judge, jury, and executioner, convicting and carrying out the sentence themselves.

I believe that the only reason this particular feature was permitted to be passed is because, unlike an actual charge, a licence suspension carries no direct punishment. Although there is a great deal of inconvenience associated with it, there is no fine or other consequence for receiving a roadside suspension.

There is no indirect punishment for it either, since, according to a Financial Services Commission of Ontario bulletin, insurance companies cannot use an Administrative Driver’s Licence Suspension (ADLS), which is less than one year in length, in their risk classification system, which is what primarily determines your premiums. An ADLS is any suspension not associated with a conviction in court for a driving related offence, thus all of these suspensions qualify.

Perhaps to balance out this somewhat restrictive feature, Bill 203 also included the addition of Section 48 (6) of the Highway Traffic Act, which states that a driver now has the right to demand an officer provide them with a second opportunity to provide a breath sample, with a different roadside screening device or a breathalyser machine at the police station, to verify the accuracy of the first reading. The inclusion of the breathalyser machine at the station is important for anyone who wants absolute verification that the police are being honest with them, since the breathalyser machine prints out a record of the breath sample showing the B.A.C.

This section does come with one caveat, however: the second reading stands. If the second reading is under .05, the driver does not receive a licence suspension. If the second reading is also a “warn” they do. But, if the second reading is a fail, the person is arrested for Over 80. It is good to know your rights if you are in this situation, but be wary if you are going to demand a second sample! Unlike breathalyser samples for people arrested for Impaired Driving or Over 80, there is no specified minimum or maximum time between samples, however the driver must make themselves readily available for a second sample. They cannot delay while they wait for the B.A.C. to drop.

The rationale behind this legislation is to denounce driving with a blood alcohol level which could affect a driver’s ability to operate their motor vehicle safely, putting themselves and the public at risk. It is up to you to decide whether you think it accomplishes this goal and whether there may be a better way of doing it. I invite you to post your thoughts in the comments section and, as always, please feel free to share the link to this article on your forums and other social media outlets.

‘Nazi’ listed as an identifiable victim group in Toronto Police’s 2009 hate crime stats report

By: Contributor · May 10, 2010 · Filed Under Criminal Law, Diversity in Law, Ethics · 1 Comment 

In the article below Karolyn Coorsh shares some mind-blowing news about the latest act of incompetence by Toronto’s finest. This is yet another bizarre act where Toronto cops are upside down and inside out in their approach to dealing with bias crime in the city. It comes on the heels of an ongoing civil case by a young Jewish lawyer in the city who is suing the Toronto Police Service for defamation after they incorrectly classified him as a nazi when speaking to staff at York University (where he was a student). It is also on top of complaints raised by anti-fascist / anti-racist activists in Toronto between 2004-2006, who reported being harassed by, of all people, members of the hate crimes unit of the Toronto Police Service. Similar complaints were also raised in 2007.

Read more

Is Signalling Always Required on Roads in Ontario?

By: Simon Borys · May 7, 2010 · Filed Under Criminal Law, Evidence · Comments Off 

From my blog: Simon Says. Category: Police Myths

Prompted by one of the comments to my blog post, Is is legal to pass on a solid yellow line?, I will be writing today about whether signalling a turn or a lane change is always required. Simon Says: No!

First let us explore the relevant section of the Highway Traffic Act. Section 142 (1) states: “The driver or operator of a vehicle upon a highway, before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway, shall first see that the movement can be made in safety, and, if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”

Regina v. Lebedorf, [1962] O.W.N. 233 (H.C.), creates two separate offences out of this section. The first is the offence of failing to see first that the movement can be made in safety (Turn/Change Lane Not in Safety* – $110 fine/$180 in a community safety zone) and the offence of failing to give a signal plainly visible to the operator of any other vehicle that may be affected by such movement (Fail to Signal Turn/Lane Change* – same fines). For the purposes of this post we will deal with the second offence.

In Regina v. Dillman, [2008] O.J. No. 1120 (Ont. C.J.), the court determined that the offence of turn-not in safety set out in subsection 142 (1) of the Highway Traffic Act was an offence of strict liability. I am persuaded, largely by the Supreme Court’s decision in Regina v. Sault Ste Marie, [1978] 2 S.C.R. 1299, that this classification must apply to the offence Fail to Signal as well. In Sault Ste Marie the court indicated that there is a presumption of strict liability for these types of offences, unless it has been determined otherwise. It does not appear that it has Fail to Signal has been classified as an absolute liability offence and, further, it was conceded in Dillman that the other offence in the same section is not either.

Strict liability means that the prosecution is required to prove actus reus (that the prohibited act itself was committed) beyond a reasonable doubt. But, in strict liability cases, the defendant can make a defence of due diligence, based on a balance of probabilities, by showing that they took all reasonable steps to avoid the offence.

Whether signalling a turn or lane change is always required hinges on one word in the section: if; “if the operation of any other vehicle may be affected by the movement, shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.”

Signalling applies to motor vehicles, trailers, and bicycles and can be accomplished by either electronic means (blinkers) or by way of hand signals, as outlined in Section 142, subsections 3-6. But, if there is no one else on the road to be affected, it is not an offence to fail to signal. If an officer observes a driver fail to signal a turn or lane change and wishes to lay the charge against them, they will be required to articulate in court what other vehicle was affected by the turn and how.

Common sense would dictate that “being affected” requires that the person being affected actually be forced to make a course correction, accelerate, or decelerate, in order to avoid a collision with the vehicle that failed to signal. I would suggest that a person (including a police officer) cannot “be affected” if they simply observe the failure to signal from a distance.

However, whether or not it is legally required to signal in a particular situation, we must remember the intent of the legislation: to create an orderly and predicable flow of traffic in order to avoid collisions. Based on that premise it seems prudent to form a habit of signalling, in order that it not be forgotten when needed.

*These are the approved short form wordings for the offences under Section 142 (1)

Does a police officer have to show you the number on the Radar?

By: Simon Borys · May 6, 2010 · Filed Under Criminal Law, Evidence · 2 Comments 

From my blog: Simon Says. Category: Police Myths.

Another question I was asked frequently during my time as a police officer is, “Does the officer have to show you the number on the Radar they used to clock your speed?” Simon Says: No!

This is another myth that probably began from some jurisdiction in the United States, but in Ontario this is not required. I believe this holds true in all other Canadian jurisdictions as well. This applies for both Radar and Laser units, which are the two types of speed measuring devices in common use by police services in Ontario.

Speeding is considered an absolute liability offence, which means that the Crown does not have to prove that you intended or even knew that you were speeding. They only have to prove that you were. An absolute liability offence means that there are no defences of due diligence available to the defendant to excuse their actions. The key piece of evidence the Crown needs to prove the offence of speeding is the measurement from the speed measuring device. The officer’s verbal evidence in court as to what reading he locked on the device will be sufficient evidence to prove the speed (though not necessarily the whole case). The officer’s verbal evidence can be challenged but if all you do is disagree with the speed they testify to, it is not likely you will be believed, unless the officer has credibility issues. The court usually weighs officer’s accounts of numbers heavily, since they were specifically in the execution of their duties at the time and made notes of everything during the incident or shortly thereafter.

With respect to not being allowed to view the device, Section 46 (2) of the Provincial Offences Act entitles defendants to “make full answer and defence.” However, creating a proper defence for a speeding trial does not require that the defendant viewed the speed measuring device to confirm that the officer read it correctly. Reading the numbers on a digital display is one of those things that police are trusted to be able to do accurately so claiming that the officer read the numbers wrong will probably not be the key to creating a proper defence. It would be up to the defendant to articulate why they feel the officer was wrong in their particular case and how their inability to confirm the reading prejudiced their ability to make a proper defence. To my knowledge no one in Ontario has successfully made this argument yet, but if you’d like to be the first, give it a shot!

Personally, I rarely ever showed people the Radar or Laser I used, except maybe if it was a confused old grandma who didn’t speak English very well and clearly had no idea what was going on. First, because it’s just not relevant to a person’s ability to make a defence, since I was confident in my ability to read the digital display properly and second because I know an officer who showed a roadside device to someone to check the reading and had the person grab it from them and smash it on the ground! In my experiences the bosses are not very happy when you cost the service more than twice as much as it would have cost them to pay you to stay home for the day…ask me how I know! :)

Guns, Gangs and Toronto Community Housing

By: Simon Borys · May 5, 2010 · Filed Under Politics · 5 Comments 

From my blog, Simon Says. Category: Police and Law News.

From the CBC: Toronto police raids snare 71 gang suspects

Project Corral was a Toronto Police investigation involving a number of other services, which focused on two gangs, the Falstaff Crips and the Five Points Generals, as well as the Shower Posse, a Jamaican organized crime syndicate who was supplying both gangs with guns and drugs.

Chief Blair is very proud of himself for the success of this project, as well he should be considering that, in addition to 71 arrests, police seized 10 firearms, $30,000 in cash, $10,500 in casino cheques, cocaine, crack cocaine, marijuana, hashish oil and vehicles. This is no small feat and no doubt many lives have been saved.

Most of these gang members lived and operated within the communities of Toronto Community Housing and in the aftermath of Project Corral there will either be a deadly resurgence of these gangs, as they try to reestablish themselves in these communities, or there will be a power struggle to fill the void. Either way this is not good for the officers of Toronto Community Housing!

TCH is comprised of some of the worst government subsidized housing projects in Toronto and is patrolled by unarmed special constables, provincial offences officers and parking enforcement officers! These officers operate as first responders in these communities, assisted by Toronto Police when necessary.

The problem is, Toronto Community Housing officers are significantly under equipped to deal with the situations they are put in. They are often first on scene to calls involving guns, gangs, drugs, assaults, domestic violence, suicides, and shootings. They respond to the same calls that Toronto Police officers do, but they don’t carry a firearm? Mr. Blair, give your head a shake and wake up before one of these officers doesn’t get to go home to his wife and children at the end of the day!

My friend who works for TCH once encountered a drug dealer on a call in an apartment complex. The drug dealer sicked his pit bull on the officers and, in order to save his own life, my friend was forced to kill it with baton strikes to the head. But apparently he doesn’t need to be armed.

Another officer I know in TCH responded to a call that was an hour old for suspicious activity in an apartment complex laundry room, where he had little to no radio reception. When he entered the laundry room he observed two males with marijuana and scales in plain view. He moved in to make an arrest and the males fled. He caught one of them and while patting him down he felt the butt of a pistol sticking out of the back of the his waistband. As soon as he touched it the fight for his life was on. He was eventually able to wrestle the gun away from him and call for help but the male escaped. The pistol was a 9mm semi auto with a do-rag wrapped around the ejection port to catch the spent casings. I guess this officer didn’t need to be armed either.

I can pretty much guarantee that every crazy thing you’ve heard about Toronto has been dealt with by a Toronto Community Housing officer at one point or another. They have a very difficult job to do I sincerely hope, for the sake of these officers and their families, that Mr. Blair and the Toronto Police get a reality check soon and arm them!

Can a police officer still give you a ticket if they’re not wearing their hat?

By: Simon Borys · May 4, 2010 · Filed Under Criminal Law · 2 Comments 

From my blog, Simon Says. Category: Police Myths

I don’t know how many times I’ve heard people say that a police officer can’t give you a ticket if they’re not wearing their hat or if they did, you can get out of it if you tell the justice of the peace this in court.  Well, Simon Says: WRONG!

I don’t know where this idea first came from, perhaps it’s true in some jurisdictions in the United States and people who watched too many episodes of Cops thought it was true here as well, but it’s not.  Nowhere in the Highway Traffic Act does it say anything about officer’s being required to wear their hats.

The only thing that even comes close to dealing with the appearance or dress of an officer is found in Section 216 (1), which deals with the power of an officer to stop a vehicle.  It says “A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.”

This just means that you have to stop your vehicle for an officer who is readily identifiable as an officer.  Even without the police forage cap, you can still readily identify them by their uniform, the flashes on their shoulders, and their duty belt, not to mention the usual presence of a police cruiser.  That being said, this section still has nothing to do with the issuance of tickets.

Now you know that it doesn’t matter if an officer is wearing their hat or not when they give you a ticket.  So don’t make a big deal of it with the officer and definitely don’t take your ticket to court with that as the only thing you have to say to the justice of the peace – you’ll just look like an idiot and annoy the JP.

Of course, if you just obey the rules of the road, you won’t have this problem at all :)

Next Page »