Sunday, November 13, 2011

Yes; No; Maybe: Three Responses to Use When Stopped by Police

Police stop 210 km/hr race involving Ferrari 599 GTB. Photo credit:
Sooner or later, regardless of how "law abiding" we might thinking of ourselves, we're all going to get stopped by the police. Usually it's going to be when we're driving a vehicle. Occasionally it might be when we're walking in a certain kind of neighbourhood or passing through a border crossing. Some of us might be stopped more often than others.

As a white boy from the burbs, I used to think of the so-called offence of "driving while black" (DWB) to be a fantasy. That is, until I became a Federal Prosecutor and saw the results start to pass through my courtroom. One of my Federal Prosecution Service colleagues - now a judge - who happened to be black, and who could afford to drive nice cars, really tilted my worldview when he told me about all the times he'd been pulled over on the highway by the police. One officer was so embarrassed to find out he was a prosecutor on his way to court, he gave him a lights flashing and sirens wailing escort the rest of the way.

But enough talk of racial profiling - though I should mention it usually isn't even a conscious thing, it's something we all have to work at so that conscious reason prevails over sub-conscious feeling - on to my three police stop answer tips of the day.

I spend a fair bit of my time as a Cornwall criminal lawyer and Brockville criminal lawyer (and sometimes in two satellite courts as a Morrisburg criminal lawyer and Alexandria criminal lawyer). For those of you not familiar with Eastern Ontario, and who like to play with Google Maps, you can check out the 401 Highway blacktop ribbon the stretches between those outposts of civilization and concentrations of Tim Hortons. It's the busiest highway in Canada, and its drivers have various ways of attracting the attention of Her Majesty's law enforcement personnel - most notably by demonstrating considerable excess where the posted speed limit is concerned.

When you're stopped there - or anywhere - you need to know what to say.


Got that? Those are the three answers you need to remember to the following questions you might get asked when the police stop you.

Question #1: "Can you give me some identification? Tell me who you are, and where you live?"

Answer #1: "Yes," or "Yes, officer" if you prefer. 

If you're driving a vehicle, you don't have any legal choice on this one. If you're a passenger, a pedestrian, or found somewhere else, I concede this one could be legally arguable, but do you really want to wind up detained while the police figure our who you are? I recommend you always identify yourself.

And do not give a false name or address. I continue to be amazed by the number of people who do this, and wind up criminally charged with obstructing justice - a very serious offence, often more serious than the original offence the police were investigating. If you really, really don't want to give the police your name (and you aren't driving anything), then say nothing - but don't lie. You might wind up detained, but you shouldn't get charged over saying nothing.

Question #2: "Do you consent to my searching your car/truck/trunk/backpack/apartment/house?"

Answer #2: "No."  

This answer is a little trickier than the first answer, because you need to watch for what form the question is posed in. If you get the more common form of the question: "Do you mind if I take a look in your car/truck/trunk/backpack/apartment/house?" then the necessary answer transforms itself into "Yes, I do mind."

Never consent to a search. Whether it's requested as part of a casual conversation with police, or through the police producing a formal Consent to Search form that you are asked to sign, just say no.  For those who are really interested in all the legal problems involved in consent searches, check out chapter 6 of my books The Investigator's Legal Handbook or Le manuel juridique de l'enquêteur, available in public, university and college libraries throughout Canada, and in a few university libraries in the U.S.

However, never try to physically stop the police from conducting a search. They might in fact have valid authority to search you (if they have arrrested you), parts of your car (if they have seized it - though the law here gets a bit complicated), or your residence (with a search warrant, or rarely with exigent circumstances like when responding to a 911 call). Plus, like giving a false name when answering question #1, you're likely to wind up getting charged with obstructing justice if you try to stop a police search - even an illegal one. Leave it to your lawyer to argue the merits of the search at trial if the police find anything.

Question #3: "Do you mind answering a few questions?"

Answer #3: "Maybe." 

The reason this one is the trickiest question of all is that sometimes, in response to regulatory requirements governing things like automobile insurance or a hunting licence or an environmental permit or when driving through a border crossing, you may be obligated to provide some information beyond your identity. There can be some very negative consequences from completely refusing to cooperate.

You might also be obliged to take a sobriety test if you are in control of a vehicle.  It's usually best to go along with demands for sobriety tests, since refusing is a serious offence itself, the officers need some basis to ask you for the test in the first place, and your lawyer can fight at trial over whether you should have been asked in the first place.

One possible response is to ask in response: "Do I have a choice about answering the questions? Must I answer them? Why are you asking them? Why do you need to know?" You might not get a clear answer, but if the answer is "No, you don't need to answer" then that would settle it.

If you think the situation is serious, you could say "I'd like to talk to my lawyer before answering." Be aware that while the police need to give you the opportunity to call your lawyer, the courts have held that they don't have to stop attempting to get answers from you while you await a call back from your lawyer.

If in doubt, the best response to Question #3 is to say nothing, and call a lawyer, but don't completely rule out answering questions in the future - which could be many hours in the future - depending on the legal advice you receive. Generally, the police cannot force you to answer any questions for a criminal investigation, but might be able to demand administrative information from you for certain regulated activities - thus the importance of knowing why they're asking.

I know this #3 answer isn't very clean or easy to apply. This is why people get themselves in trouble with the police and other law enforcement authorities by usually saying too much, but sometimes saying too little. It's also why we lawyers are able to earn a living. Give me a call

Friday, November 11, 2011

Three Things You Need to Know About Criminal Law in Canada

Photo source credit:

"In the criminal justice system, the people are represented by two separate yet equally important groups: the police who investigate crime and the district attorneys who prosecute the offenders. These are their stories."

- Opening narration to every Law and Order episode, as spoken by Steven Zirnkilton. 

From all the talk of criminal law in the movies, on television and within those always salacious crime thriller novels, you'd think we'd all know lots about criminal law. Lots more, in fact, than for any other area of law. How many movies have you heard of with the compelling title: "Property Law"? Or how about a t.v. show called "Torts and Contracts"? Don't really grab you, do they?

I think we can certainly learn something from movies, t.v. and novels about crimes and the people who commit them. Sometimes we learn a bit about the "justice system" - although that most sonorous of Law and Order voice overs conveniently omits any reference to the defence bar of which I'm a member. But learn about the criminal law? 

The problem is that the criminal law - like all other types of law - is an intangible. The ghost in the machine. Nothing to look at. Nothing to touch. Just a blanket of nothingness which envelopes us, supposedly keeping us all safe and dealing with those who transgress society's norms. Movies, t.v. and books can show the crimes. They can show the criminals. Occasionally they can give glimpses of the larger justice system. But what of the criminal law is there to show?

Notwithstanding this failure of popular culture to educate - as shocking of a conclusion as this may be to all of my readers - if we're ever on the receiving end of the justice system, be it for traffic offences or bank robbery, understanding what exactly this criminal law thing is becomes very important. The challenge is that it's become one of THE most complicated areas of the law. 

Now I know that might be said about a lot of legal areas, but the majority of cases that drag through the courts tend to be the criminal ones - in part because the courts are the only ones who can pass final judgment on the guilt or innocence of an accused, and also because the government bears most criminal justice costs (unlike civil justice where the parties usually pay their own costs). That in turn produces a whole lot of criminal case law where judges are rendering decisions on everything from the validity of search warrants to how two words buried in the middle of a Criminal Code thousands of pages long should be interpreted. Likewise, Parliament loves constantly creating new criminal offences, tinkering with old ones, enacting modified criminal court procedures, and generally trying to show the public that it takes crime seriously, which creates a whole lot of criminal legislation. Parliament tends not to worry as much about whether the public thinks it takes property law seriously. 

The good news is that there are a few easy to understand and easy to remember principles of the criminal law that have been longstanding constants, regardless of all that criminal case law and legislation that has been cluttering the legal landscape lately. Today I offer you three of those principles. In future posts, I'll give you a few more. 

1. Ignorance of the law is neither a defence nor an excuse. What this principle means for you is that if you have any doubts over whether something you are about to do is legal, you should always check the state of the law with at least an appropriate government official and perhaps with a lawyer before acting. Otherwise, you act at your own peril and risk being convicted of an offence. This rule applies equally to new changes in the law, very complex laws, or very obscure laws.

2. You are presumed to intend the logical consequences of your voluntary actions. Therefore, if you choose to hit someone and that person dies, you could be found guilty of manslaughter or murder - not just assault - depending on your original intention in striking the blow. 

3. Exercising due diligence in order to avoid contravening the law is a defence in most regulatory offence matters. Your conduct will be assessed against what the reasonable person would have done in your situation. This means that driving with a speedometer you knew to be broken will not usually work as a speeding defence, but having your engine race uncontrollably despite your best efforts to stop your vehicle might be a defence.  

Stay tuned for next time, when I'll share three things you should know about the criminal law if you're stopped by the police.