RECENT BLOG POSTSNov. 2010
Toronto Ontario Canada
Police officers do not have unlimited powers when conducting criminal investigations. If you are facing criminal charges and you believe that the police may have abused their powers during the course of their investigation, you should contact our law firm to discuss the potential remedies available to you as a result of police misconduct. We will do everything in our power to hold the police accountable for their conduct.
At Kostman and Pyzer, Barristers, we have challenged criminal accusations on the basis that the police used excessive force during the course of a client's arrest, or that a particular motor vehicle stop was made on the basis of racial profiling. If a judge is satisfied that the police misconduct is serious enough, criminal charges can be thrown out of court altogether, or evidence collected by the police may be excluded from the trial.
By police "misconduct", we mean any conduct that exceeds their authority, or constitutes an abuse of police authority or discretion. It is not necessary that the conduct is malicious in nature. Police impropriety may occur in any number of different situations, during the investigative process, and during the course of an arrest. At Kostman & Pyzer, Barristers, we have had very significant success in challenging evidence, such as a verbal statement or drug seizure, on the basis that the evidence was obtained as a result of police misconduct.
On October 30, 2007, we successfully defended P who was charged with Care and Control of a Motor Vehicle while his blood alcohol level was over 80 mg%, and Impaired Care and Control. P was found asleep at the wheel of his motor vehicle at 9:30 in the morning. The engine was running. A police officer approached P's vehicle and knocked on the door, waking P. He was observed to have the following indicia of impairment: Strong odour of an alcoholic beverage; Slurred speech; Flushed face; Dilated pupils.
The officer arrested P for Impaired Care and Control of the motor vehicle. P was searched upon arrest. A half-filled bottle of Sambucca was found in his jacket pocket. He provided breath samples of 141 mg% and 141 mg%, almost twice the legal limit. At trial, we successfully argued that prior to the arrest of P, the police officer should have requested that P provide a breath sample into an ASD (approved screening device) as an investigative tool. Both charges were dismissed!
A police officer may only arrest, without a warrant, a person who has committed an indictable offence or who they believe based on reasonable and probable grounds has committed or is about to commit an indictable offence, or a person whom they find committing a criminal offence. Once arrested, the police must bring an accused person before a Justice for a bail hearing without unreasonable delay and within 24 hours. An arrest without reasonable and probable grounds is unlawful. The police cannot conduct random or arbitrary investigations of civilians, whether they are walking in the street or driving their motor vehicles. An arrest can only be made where there are reasonable and probable grounds to arrest.
The police may search an individual incidental to their arrest. They may be permitted to search the arrested person's immediate environment, depending upon where they are located. During the course of an investigative detention, the police may conduct a cursory search of a person, for "police safety". Any search of any place conducted by the police must be with legal justification and in a manner respectful of the privacy and property interests of a person. In most cases the police need to apply to a judicial officer for a warrant to search any place. Warrantless searches are per se illegal.
The police do have the authority to seize contraband which is in plain view. They also have the authority to search any place with the informed consent of the owner. "Informed consent" means that the owner of the home or vehicle has a significant awareness of the nature of the investigation, an opportunity to consult with counsel if necessary, and the awareness that they have the ability to withhold their consent. The mere fact that the police have applied for and obtained a search warrant does not mean that the search is automatically a legal one. Search warrants may be challenged on the basis that the police misled the judicial officer who authorized the search.
When a suspect is arrested or detained, the police must respect an accused's person's right to counsel. They must advise them of the specific offences for which they are being investigated, and that they have a right to speak to a lawyer. The police must also give the accused a reasonable opportunity to contact their lawyer of choice. In addition, only statements made to police that are voluntarily given will be admissible as evidence at trial. A statement is only "voluntary" if it has not been obtained as a result of any promises, threats or other inducements held out by the police. For instance, where the police advise a person under arrest that they will derive some benefit for bail or at trial if they confess, the statement is generally excluded from the trial as "involuntary". Finally, the police must respect a person's right to silence and their right not to incriminate themself. Remember: YOU HAVE THE RIGHT TO REMAIN SILENT AND THE RIGHT NOT TO PROVIDE A STATEMENT TO THE POLICE!
Police officers are expected to make detailed notations of important features of an investigation, including their contact with a person during the arrest process. Later, these notes may be used to refresh their recollection when testifying in court. Police officers are subject to strict guidelines to ensure the integrity of their individual note-taking procedure. Our firm has successfully attacked the reliability of many police officers' testimony based on their poor note taking, or their collaboration with other officers during note-taking, or their failure to make notation of an important aspect of an investigation. Police officers are required to make sure that their notes of a criminal investigation are accurate and unbiased. All notes should be in the police officer's own handwriting. Notes should be made at the time of his or her observations, or as soon thereafter as possible.
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