brockm
Active Member
A few things, from points made:
1. I was not a protester;
2. I was not near a protest;
3. The event occurred at about 6:00pm on the Monday after the event, which ended at around 3:00pm Sunday, more than 24 hours earlier; and
4. That the police swore at me is not even the salient issue. The fact they detained me at all is.
I find it incredibly surprising that people say things like "just hand over your ID". Just to be clear: in this country, you DO NOT have to present ID on request, with the exception of operating a motor vehicle, you can be required to prove you are a licensed driver (edit: even then, the demand cannot be arbitrary) . But as a pedestrian, there is no law that exists that requires that you provide ID, or even identify yourself to police at all. If the government passed such a law, it would be struck down as unconstitutional.
In fact, even if you are arrested, your right against self-incrimination extends all the way to your right NOT to identify yourself. People do this by the way, and they get booked as "John Does". Your refusal to identify yourself cannot be used against you in court. It also cannot be used as a justification for suspicion of a crime. ie. A police officer can not say "I detained you because I was suspicious you didn't give me your ID". That's not a legal justification for suspicion under the law. The Supreme Court of Canada has, in fact, provided jurisprudence on this very issue.
For a police officer to demand ID, and for that officer to demand compliance, the officer is by legal definition subjecting you a legal detention. In fact, all searches of your person must necessarily be conducted in the context of a legal detention. If the detention is not legal, the search is not legal. These things are not independent.
Section 7 of the Charter of Rights and Freedoms states: Everyone has the right to be secure against unreasonable search or seizure. and Section 8 follows with: Everyone has the right not to be arbitrarily detained or imprisoned..
It turns out that "arbitrarily" is not up for interpretation. Case law provides us a robust definition of what constitutes an arbitrary detention.
In R v. Simpson [1993] the Supreme Court of Canada held in its judgement that for a detention to be non-arbitrary it must satisfy the requirements of "articulable cause" which is not dissimilar to the concept of "probable cause" in the United States.
Further, the court held that "articulable cause was not sustained merely by the officer’s hunch based on intuition gained by experience."
Continuing, the court asserted that to say "the detaining officer has some ‘articulable cause’ for the detention" the officer must have "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."
The bottom line is, as the OIPRD report made clear in its mention of multitudes of illegal detention, the second those police put their hands on me when I refused to submit to a search the police were BREAKING THE LAW.
A police officer may not under any circumstances demand that anybody present identification without having an objective reason for doing so.
Example 1: "I smelled alcohol on his breath and he was acting violently, after hearing reports of the man threatening people in the area" <-- ARTICULABLE CAUSE!
Example 2: "I stopped him while he was walking by and he refused to talk to me" <--- NOT ARTICULABLE CAUSE!
In the first example, you can explain to any competent court of jurisdiction, the reasons why you detained that person: there were reports of a drunk man threatening people. The man is drunk. He's acting violent in my presence. He's in the area where the incidents were reported. *Bing* You have reason to SUSPECT this person may be the one whose making the threats.
In the second example, you can NOT explain to any court of competent court of juridiction why you detained the second guy. Why? Because the reason (that he wouldn't identify himself) is NOT admissible under the rules of evidence in court. Therefore that judge cannot consider it as a reason for the detention. Thus, the detention is illegal. Plain and simple.
You're welcome to waive your rights under the Charter and submit to a voluntary identification and search. But to bemoan people who assert their rights is just insane to me.
1. I was not a protester;
2. I was not near a protest;
3. The event occurred at about 6:00pm on the Monday after the event, which ended at around 3:00pm Sunday, more than 24 hours earlier; and
4. That the police swore at me is not even the salient issue. The fact they detained me at all is.
I find it incredibly surprising that people say things like "just hand over your ID". Just to be clear: in this country, you DO NOT have to present ID on request, with the exception of operating a motor vehicle, you can be required to prove you are a licensed driver (edit: even then, the demand cannot be arbitrary) . But as a pedestrian, there is no law that exists that requires that you provide ID, or even identify yourself to police at all. If the government passed such a law, it would be struck down as unconstitutional.
In fact, even if you are arrested, your right against self-incrimination extends all the way to your right NOT to identify yourself. People do this by the way, and they get booked as "John Does". Your refusal to identify yourself cannot be used against you in court. It also cannot be used as a justification for suspicion of a crime. ie. A police officer can not say "I detained you because I was suspicious you didn't give me your ID". That's not a legal justification for suspicion under the law. The Supreme Court of Canada has, in fact, provided jurisprudence on this very issue.
For a police officer to demand ID, and for that officer to demand compliance, the officer is by legal definition subjecting you a legal detention. In fact, all searches of your person must necessarily be conducted in the context of a legal detention. If the detention is not legal, the search is not legal. These things are not independent.
Section 7 of the Charter of Rights and Freedoms states: Everyone has the right to be secure against unreasonable search or seizure. and Section 8 follows with: Everyone has the right not to be arbitrarily detained or imprisoned..
It turns out that "arbitrarily" is not up for interpretation. Case law provides us a robust definition of what constitutes an arbitrary detention.
In R v. Simpson [1993] the Supreme Court of Canada held in its judgement that for a detention to be non-arbitrary it must satisfy the requirements of "articulable cause" which is not dissimilar to the concept of "probable cause" in the United States.
Further, the court held that "articulable cause was not sustained merely by the officer’s hunch based on intuition gained by experience."
Continuing, the court asserted that to say "the detaining officer has some ‘articulable cause’ for the detention" the officer must have "a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation."
The bottom line is, as the OIPRD report made clear in its mention of multitudes of illegal detention, the second those police put their hands on me when I refused to submit to a search the police were BREAKING THE LAW.
A police officer may not under any circumstances demand that anybody present identification without having an objective reason for doing so.
Example 1: "I smelled alcohol on his breath and he was acting violently, after hearing reports of the man threatening people in the area" <-- ARTICULABLE CAUSE!
Example 2: "I stopped him while he was walking by and he refused to talk to me" <--- NOT ARTICULABLE CAUSE!
In the first example, you can explain to any competent court of jurisdiction, the reasons why you detained that person: there were reports of a drunk man threatening people. The man is drunk. He's acting violent in my presence. He's in the area where the incidents were reported. *Bing* You have reason to SUSPECT this person may be the one whose making the threats.
In the second example, you can NOT explain to any court of competent court of juridiction why you detained the second guy. Why? Because the reason (that he wouldn't identify himself) is NOT admissible under the rules of evidence in court. Therefore that judge cannot consider it as a reason for the detention. Thus, the detention is illegal. Plain and simple.
You're welcome to waive your rights under the Charter and submit to a voluntary identification and search. But to bemoan people who assert their rights is just insane to me.
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