Friday, December 27, 2013

There's This Thing Called "Due Process"

Just a few days ago, I wrote about how we are experiencing an emerging police state.  Today, we find Edmonton's Chief of Police demanding additional powers to seize vehicles that are being "driven excessively fast".  
The police chief in Alberta's capital is renewing a push for the provincial government to give officers the legal power to seize the vehicles of motorists caught driving at dangerously excessive speeds. 
Rod Knecht says police in Edmonton are routinely catching people driving more than 50 km/h over the posted limit. There have been 879 such cases in the last two years, he says. 
"The public is concerned about this — 50 km/h isn't somebody that is just in a hurry or late for work," Knecht said in a recent interview. "You are making a conscious effort to drive that fast and drive that recklessly." 
I have a huge problem with this.  First of all, it is yet another case of giving "discretionary" powers to the police when they pull someone over.  In this case, we are talking about allowing the immediate execution of punishment with no opportunity for it to be contested in court.

Seizing vehicles is more problematic than other forms of summary punishment.  First of all, the police are seizing what is a significant asset for most people.  Second, in the event that the case is dismissed in court, punishment has already been exacted.  When a car is seized and impounded, the owner of the vehicle is liable for the costs of towing and the impound lot.  Not only is this an additional punishment, but the accused has already borne the cost of it.

Since we are talking about speeds at which a mandatory court appearance is already required, it seems to me far more appropriate to use the standard process of arrest and initial court appearance.

I want to bring to your attention some key aspects of the legal rights we all share under Canada's Constitution:
9. Everyone has the right not to be arbitrarily detained or imprisoned.Marginal note:Arrest or detention 
10. Everyone has the right on arrest or detention(a) to be informed promptly of the reasons therefor;(b) to retain and instruct counsel without delay and to be informed of that right; and(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.Marginal note:Proceedings in criminal and penal matters 
11. Any person charged with an offence has the right(a) to be informed without unreasonable delay of the specific offence;(b) to be tried within a reasonable time;(c) not to be compelled to be a witness in proceedings against that person in respect of the offence;(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;(e) not to be denied reasonable bail without just cause;(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and(i) if found guilty of the offence and if the punishment for the offence has been varied between the time of commission and the time of sentencing, to the benefit of the lesser punishment.
In particular, Sections 11(a) - 11(d).

Summary punishment such as seizing major property (and for most people, a car is a significant piece of property), arguably constitutes a significant violation of 11(d), and to some degree could also be held to violate 11(a) and 11(b) as well.

While the Constitution clearly provides for the Federal and Provincial legislatures to make laws which limit the rights enshrined in the Charter of Rights and Freedoms.  It is far from clear that these "traffic stop seizures" fall into the category of "reasonable".

People of Canada deserve access to due process in all matters involving the law.  Giving arbitrary powers to any part of the system is inherently unjust.
Marginal note:

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