March 2015

VPD Officer Smashes Car Window

The law firm at which I work is frequently contacted by media outlets for comments on stories related to criminal charges and impaired driving.

We often post on our blog and Facebook pages links to the media stories, and these links can inspire a lot of commentary. It should come as no surprise that Canadians have strong feelings about drinking and driving, about police misconduct, and about their Charter rights.

Recently, Paul was interviewed by CBC News in relation to a story about a police officer smashing a driver’s car window. We posted the link to the interview on our Facebook page. Unsurprisingly, it generated a significant response. Surprisingly, however, was the nature of the responses we received.

Commenters on the post appear to fall into two categories: those who sympathize with the driver and are offended that he was not provided his Section 10(a) rights; and those who sympathize with the police, and view the driver as obstructive and guilty. Many people who commented seemed to equate the fact that he was charged with possession of a controlled substance, and possession for the purpose of trafficking with some objective justification for the window smash.

I was interested and a little shocked to see that people fell into either of two extremes in this regard. Had I been in the driver’s situation, I cannot say that I would have done what he did, but I am also cognizant of the fact that behaving as he did can result in the window being smashed, however unlawfully. But the nature of the comments in favor of the police causes me concern about the understanding of Charter rights that both police (many commenters on our posts are police officers) and some citizens seem to have.

Every person who is arrested or detained has the right to be promptly informed of the reasons for their detention. It is not enough for an officer to simply say “You are under arrest.” He must advise the individual of why he is being arrested. The smell of marijuana alone is not enough to arrest someone. The individual in the video was right in the legal sense to inquire of the officer as to his reasons for arrest. He did nothing wrong, legally, in asking why he was being arrested and in refusing to step out of the vehicle until he knew why.

Worse, however, is the disregard for the presumption of innocence. This is often referred to as the golden thread of our justice system. Without it, justice fails. Look no further than upcoming amendments to the Motor Vehicle Act to see a perfect example of how justice will be failed by the removal of this presumption. Simply because a person is charged with a criminal offence does not mean that they are guilty of it. Nor does it mean that the officer was acting pursuant to any lawful authority in detaining and/or arresting them. To assume that the conduct of the police is justified simply because there were charges laid erodes the justice system.

Discussion of these issues is important. It’s important to know why we have the rights we have, and how they benefit us.

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What We Can Learn About DUI From #TheDress


Unless you’ve been living under a rock for the past week, you probably have heard about #TheDress. The question posed with the photograph was “what colors are the dress?” Different people saw different colours.

In my office, Paul saw black and blue. I saw blue and gold. Our articled student saw gold and black and blue. Our support staff saw white and black. Everyone had a different answer.

I began to think about our subjective views of the colours of the dress, and how similar that was to impaired driving files. It is not uncommon that I have a client who is charged with drunk driving and there are multiple witnesses. Some officers say the client is stumbling. Others note no balance problems. Some police officer say the speech was slurred or the face was flushed. Others do not see these problems. Some witnesses say that the client was drunk after a collision, while others simply say the client seemed disoriented or shaken up.

Of course, there has been extensive discussion in the psychological and scientific communities on the fallibility and unreliability of eyewitness evidence.

Just as we all see something different when we look at The Dress, we also see things differently when we look at a person who is supposedly impaired. And our subjective perception can be influenced by what information we have been given in advance.

For example, if you were told that the dress is actually black and blue, you might look at the dress to see if you can see black and blue. Similarly, police officers responding to a report of a possible impaired driver are often looking at the driver to see if what they see matches their pre-determined notion of what the driver is doing. All of a sudden a lisp or an accent is slurred speech.

It’s human nature that when we are told something is a particular way, especially from a reliable source, that we expect to see it that way. And we will subconsciously craft our perceptions to match our expectations.

It’s a form of bias known as experimenter’s bias.

As defence lawyers, we know about this type of bias. We are on the lookout for it, and we try to structure our cross-examinations and our theory of the case around the possibility of bias where it exists.

The Dress is a good reminder that what we think we see may not always be reliable or accurate. And that this is also true for drinking and driving cases.

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