Drunk Driving Case Tossed after Peel Cops Retain Accused's Turban

[fuji]

Ok we have two religious articles, one represents a safety risk for officers and other detainees and the second one is harmless, so what's the point of removing the second one besides wanting just to humiliate the accused ?

I suspect that they would do something about a Turban as well if there was a legitimate concern about suicide, and I suspect that Sikh religious authorities would agree.

Reasonable accommodation isn't unlimited.

 

[KBear]

Seems many people charged with DUI are not convicted for a variety of reasons. Somewhat similar case. Ontario Woman's Drunk Driving Charge Dismissed Because Strip Search Exposed Her Breasts

 

[jcpro]

This all boils down to a judge with an ego issue, to hell with whats best for the public,..."I'm going to show these cops who's boss,..."

Not returning the turban had absolutely no bearing on guilt.

If some of the legal beagles here could direct me to anything that suggests that one of the judge's duties, is to punish/make an example of cops at the expense of justice.
I tried, but probably don't know where to look.

FAST

What do you propose? Judges have no tools to punish cops abusing our rights. I don't want to see cops being docked a days' pay. That's simply inadequate. Not when they're violating clearly set rules or even worse when they abuse Charter rights. What punishment did the cops get for illegal arrests or removing name tags during the G20? Between the silent blue line and the police union there simply is no alternative. Therefore, if a guilty has to walk to drive in the point, so be it. This judge made a controversial decision, but it was a right decision.

 

[SkyRider]

"Abusing someone's Charter rights" sounds terrible. We need a scale of severity.

A delay in returning someone's turban surely is not on the same scale as the government intentionally killing him, is it?

 

[GPIDEAL]

Section 11(b) has been used successfully to free accused murderers for delay of trial (which is considered unfair and contrary to the Charter) based on the initial landmark case Regina vs. Askov. You can even get off on speeding tickets but the courts have taken into account longer intake periods for traffic tribunals.

However, I don't agree that a charter violation that doesn't prejudice the case against an accused, insofar as evidentiary matters germane to the particular offence, should be applied to override another law to dismiss said case.

Fellow Terbite Colt explained that the cops lied about the Turban issue and therefore, diminished their credibility. I can accept a dismissal based on that.

 

[GPIDEAL]

Seems many people charged with DUI are not convicted for a variety of reasons. Somewhat similar case. Ontario Woman's Drunk Driving Charge Dismissed Because Strip Search Exposed Her Breasts

Thanks for posting this example for our discussion here.

So it is a contravention of Section 24(2) of the Charter which reads as follows:

Under the heading "Enforcement," the section states:

“ 24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.


In my humble opinion, I think this clause is important in any determination, namely, "having regard to all the circumstances".

In the case of the lady who inadvertently had her breasts exposed for a strip search which seemed unlawful or unnecessary, I cannot see how the breathalyzer evidence is tainted, which has nothing to do with her strip search. I'd award her damages in a lawsuit though, or punish those cops somehow.

 

[colt]

So now a technician has the responsibility in determining if the bareheaded individual taking the test should be wearing a turban, Hijab, Yamaka, biretta or a headband with feather ????

Stupid decision ... so obscure in the line of reasoning that it in reality provides an unequal level of justice based on religious views - the opposite purpose that these laws were created.

I wonder if too many judges are becoming savants in legal text .. lost in other realities.

Obviously I'm not a lawyer or I wouldn't be bitching about this travesty of justice.

Don't be afraid to use my entire quote. I said the breath tech TESTIFIED he did not care if the accused wore a turban ... but the evidence of other officers and the tech's own notes were evidence that the tech very much cared if the accused wore a turban ... the evidence was he specifically said the accused was not allowed to wear a turban. Which means the tech's TESTIMONY was not consistent with what actually happened (i.e., a lie). I never said the tech had the responsibility of determining what headwear an accused should be wearing ... but he certainly stepped over the line when he refused to allow the accused to wear the turban.

 

[Smallcock]

Fellow Terbite Colt explained that the cops lied about the Turban issue and therefore, diminished their credibility. I can accept a dismissal based on that.

I can, too.

But if that's the case, there should definitely be some sort of reprimand of the cops involved. What is stopping them from doing it again?

 

[SkyRider]

in cases of police brutality, where police will absolutely deny they ever did anything wrong,

Yeah, I remember Michael Jackson saying the police hurt his shoulder. It's amazing how much better his shoulder felt after he paid the victim's family $20 million and they refused to testify so the police had to drop the case.

 

[FAST]

no it wasn't. the reasoning isn't - "it's his religious right so he has an unlimited right to have whatever he wants, regardless of safety risks". the reasoning is that "there was no reason not to give back his turban - no safety risks to the police, no huge inconvenience or logistics issues - and therefore he should have been given it back given how important the item was to him in terms of religious value."

there's always a weighing done in cases. it's never a mathematical certainty when it comes to balancing individual rights against societal concerns about safety.

I do realize the "law" does not have to be logical, seems to be it has evolved away from logic.

And I agree that his turban should have been given back to him.

BUT, just what does not giving his turban back got to do with whether he was guilty or not.

So it still comes across as the judge playing god with the decision to punish the cops for their transgression, instead of convicting a drunk.

As jcpro asked, "what is the judge supposed to do", well first, do his primary duty to convict in this case.

I still haven't found anyplace where it states the the judges primary duty is to spank the cops when they screw up, by putting a drunk back on the streets, as is the case here.

Is the system working now, hell no.

So maybe the answer is for the judges union to come up with a scheme to present to the governments on how to handle cops lying and planting evidence WITHOUT them playing god in cases like this thread.

And NO, I have absolutely no legal training, but the judiciary is to serve the population, NOT the legal system, so I'm entitled to say what ever the hell I want about it.
Some times people who are connected to the legal system need to back away, and look at it from a logical view point, NOT a legal view point.

Sorry for rambling on, so flame away, I can take it, FAST

 

[fuji]

did you make a typo? because i agree with you that separating the right to be free from persecution from audits of the police is a mistake. the courts, which are independent bodies of governance, should be able to directly discipline police when they abuse charter rights. the way it currently is, they are separated. how does this affect our freedoms at all? the courts should be able to stay the case, exclude evidence, AND discipline police for misconduct.

you're harping on about how unaccountable the SIU is - which i fully agree with - so how the fuck do you expect the police to account for their own misconduct, on their own, without any legal obligation, simply based on the staying of a case or the exclusion of evidence?

where is this "link" you speak of?

So now you want the police to face disciplinary hearings embedded within another trial? They will certainly challenge that this violates their own right to a fair trial. The officer is entitled to be considered innocent until proven guilty as well.

Therein lies the problem. You are trading off the right to a fair trial for one person with another.

It's possible that there will be a reasonable doubt that a violation of rights has occurred without proof beyond a reasonable doubt that it did. In that case what? The violation goes unrequited because you can't prove beyond a reasonable doubt that it was one?

Much better just to dismiss the charge.

If you then ALSO have enough evidence to open a separate case against the officer that is actually a separate issue.

 

[floatmanmike]

THIS IS CANADA RIGHT!!!!! NOT INDIA!!!!

This guy moved here or his family moved here. Why does are country have to bend over backwards for all this new immigrant's. They have to learn they now live here not in India any more. I think this judge really should have let the charges stick on this guy because he was guilty all the way. It looks like the judge didn't want to take heat for letting the charges stand.

 

[SkyRider]

Question for the legal guys on the Board.

Isn't there a concept in law that a government official cannot be persecuted/prosecuted when they make an inadvertent error in carrying his/her/it's lawful duties in good faith and without malice?

I think this concept would apply when the police inadvertently and in good faith and without malice enters the wrong house in executing a search warrant.

Can the same principle apply where the police in good faith and without malice held a turban a bit longer than the accused would like?

 

[anon1]

THIS IS CANADA RIGHT!!!!! NOT INDIA!!!!

This guy moved here or his family moved here. Why does are country have to bend over backwards for all this new immigrant's. They have to learn they now live here not in India any more. I think this judge really should have let the charges stick on this guy because he was guilty all the way. It looks like the judge didn't want to take heat for letting the charges stand.

Yeah, it's not like we have freedom of religion here or some commie shit like that!

 

[IM469]

Don't be afraid to use my entire quote. I said the breath tech TESTIFIED he did not care if the accused wore a turban ... but the evidence of other officers and the tech's own notes were evidence that the tech very much cared if the accused wore a turban ... the evidence was he specifically said the accused was not allowed to wear a turban.

Sorry colt, I stand corrected. I was taking the technicians testimony as truthful and that if the gentleman in question had not requested his turban so there is noway the technician could have understood it to be missing while he collected the evidence. I still do not believe it should affect the evidence anymore than me complaining that I was denied holding my lucky rabbit's foot. I would have preferred to see the religious rights issue treated as a separate issue from the DWI. Just my opinion.

 

[KBear]

Thanks for posting this example for our discussion here.

Thought would be more interesting to discuss the rights of a girl whose breasts popped out when the female cop unzipped her tight fitting sweater, than some drunk guys turban.

For people charged with DUI and getting off, it is just luck that the cops made some mistake and the lawyer was skilled enough to find it.

 

[fuji]

how can you consider the officer's wrongdoing a 'separate' issue when it's the exact same issue that is being determined in the accused's trial? if one court finds that the officer breached the accused's rights, it makes no sense at all for another tribunal to come to a different conclusion. this is exactly why crown prosecutors avoid severing the trials of co-accused charged with committing the same crimes during the same events. you don't seem to get how reasonable doubt works. the officer(s) have all the reasonable doubt in the world at the beginning of the trial, like anyone, but it's diminished once the trial leads the trier of fact to determine whether a breach took place or not. this is a fact that will be established via the trial itself.

even if the judge wasn't allowed to sentence the officer, since that may get procedurally messy, the judge should at least be allowed to make legally binding orders on a separate agency to initiate disciplinary proceedings against the officer - at the very least. but we don't even have that.

It makes total sense that they could reach different conclusions because they will use different standards of evidence: the accused gets off if there is a reasonable doubt his rights were abused but the officer is only guilty if there is proof beyond a reasonable doubt that he abused the rights of the accused.

 

[KBear]

It makes total sense that they could reach different conclusions because they will use different standards of evidence: the accused gets off if there is a reasonable doubt his rights were abused but the officer is only guilty if there is proof beyond a reasonable doubt that he abused the rights of the accused.

Agree with Fuji, also she expects officers to take the stand and testify without legal representation, and if the officers made some error the judge should find them guilty and pass judgment.

 

[sodomizer]

Maybe one day that driver will hit a member of the Judge's family with his reassured confidence to drive intoxicated without punishment. Karma....sutra lol

" Karma ..... sutra " - lol ! Good one !

 

[colt]

how can you consider the officer's wrongdoing a 'separate' issue when it's the exact same issue that is being determined in the accused's trial? if one court finds that the officer breached the accused's rights, it makes no sense at all for another tribunal to come to a different conclusion.

How do you get around the self crimination issue? Police have a statutory duty to keep notes and are compelled by their position and Police Services Act to give testimony in court. However, with respect to criminal or quasi criminal prosecutions against them they are still entitled to be free of any obligation to criminate themselves. When a person is charged with perjury they are still entitled to defend themselves in a trial with notice of the charge and the evidence against them etc.. The judge hearing the original trial may not believe the witness but the judge does not have the authority to simply convict the witness of perjury. Similarly, a judge with jurisdiction over a criminal trial would not have the jurisdiction to find a police officer witness guilty of professional misconduct ... that kind of process would violate at least three tenents of procedural fairness and fundamental justice.