Tuesday, October 14, 2008
HTA 172 an Ilegal act itself?
The law is unconstitutional for several reasons. Section 172(5) requires an officer to have reasonable and probable grounds. This proves a hearing is required before punishment can be imposed. Reasonable and probable grounds bear a standard of proof and onus of proof. Thus, when an accused is charged, it is neither proven nor presumed that the accused has committed an offence, but there are reasonable grounds for believing that this has occurred. The laying of charges in the legal process does not involve a determination of guilt, thus, the presumption of innocence under s. 11(d) as a principle of fundamental justice under s. 7 of the Charter still applies and sanctions cannot be imposed until a determination of guilt has been entered. The burden is on the government and the standard of proof is beyond reasonable doubt. The governments burden can only be discharged by a trier of fact in a court proceeding. But no proceeding is provided violating ss. 7 and 11(d) of the charter. The principles of fundamental justice under s. 7 incorporate due process and natural justice. S. 172 violate both of them as no hearing is provided. As no hearing is provided s. 172 also violates s. 11(d), the right to be presumed innocent until proven guilty according to the law. The charter is part of the constitution and the constitution is the supreme law of Canada. Section 172 is not justified or saved by s. 1 of the Charter.Moreover, s. 128(14)(d) directly conflicts with s. 172. Section 128 provides for a fine of $9.75 per kms over the speed limit when the driver is doing more than 50 kms over the speed limit. There is no licence suspension, vehicle impoundment, prison term etc. Section 172 provides for a minimum $2000 fine, maximum $10,000 fine, seven day licence suspension, up to two year suspension upon conviction, seven day vehicle impoundment, and six month prison term. It is a universal principle that when two provisions conflict the one that is most favourable to the accused must be adopted.Most critically, offences in Canada were classified 30 years ago. Offences are either mens rea, absolute or strict liability offences. R. v. City of Sault Ste. Marie,  2 S.C.R. 1299S. 172 is an absolute liability offence. Twenty-three years ago, the Supreme Court of Canada determined that absolute liability offences that contain terms of imprisonment are unconstitutional as they violate s. 7 of the charter. The term of imprisonment does not have to be mandatory, it may be optional, as s. 172 provides. B.C. Motor Vehicle Act,  2 S.C.R. 486Thus, in accordance with s. 52 of the Constitution Act 1982 s. 172 is of no force and effect. In other words, it's not a valid law. Critically, the Province might wish to claim it was unaware of B.C. Motor Vehicle Act,  2 S.C.R. 486 until now but that is simple untrue. The Attorney General of Ontario intervened in R. v. Kanda, 2008 ONCA 22 and is well aware of the offence classifications and that a term of imprisonment is not permissible when attached to an absolute offence, which s. 172 is. More than 8,000 people to date have be charged under s. 172 and up to 8,000 vehicles impounded, thus up to 24,000 criminal offences of thefts, mischeif and fraud have been committed by agents of the Province. More importantly, the Attorney General argued in the case that the triggering words “no person shall,” evince a clear intention to create an absolute liability offence. The court determined otherwise stating it is a strict liability offence. The court also cited the B.C. Motor Vehicle Act case. Therefore, the Attorney General has been aware since January, 2008 that s. 172 is unconstitutional and of no force or effect yet the Province continues to illegally charge citizens and impound vehicles. In order to be reasonable, seizures and impoundments must be authorized by law. Here, impoundment is not reasonable or authorized by a valid law. The reason for this requirement is clear: under both the Charter and the common law, agents of the state can only enter onto or confiscate someone’s property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding theft as everyone else. R. v. Caslake,  1 S.C.R. 51Therefore, the police are not operating under any valid law when they impound a vehicle and are not are not operating in the execution of any valid power or duty. What they are doing is stealing cars under s. 322 of the Criminal Code, committing mischief under s. 430, and fraud under s. 380. A person is having their vehicle stolen and the police are allowing a third party to place a lien on your property. You cannot get your stolen property back unless you pay money, which is fraud. If you are subject to an impoundment you are empowered under s. 494 of the Criminal Code to arrest the police office on the spot the second he acts to impound your vehicle. Section 19 of the Criminal Code articulates that Ignorance of the law is no excuse and the police cannot blame the government for any wrong doing an officer commits. A police officers duty and powers are articulated under s. 42 of the Police Service Act. Section 42(3) of the Police Service Act states;Powers and duties of common law constable(3) A police officer has the powers and duties ascribed to a constable at common law.At common law, these duties include “the preservation of the peace, the prevention of crime, and the protection of life and property.” Dedman v. The Queen,  2 S.C.R. 2.The common law is no more immune from Charter scrutiny than is statute law, as the Supreme Court has repeatedly held, see RWDSU v. Dolphin Delivery Ltd.,  2 S.C.R. 573; B.C.G.E.U. v. British Columbia (Attorney General),  2 S.C.R. 214; R. v. Swain,  1 S.C.R. 933; R. v. Daviault,  3 S.C.R. 63, and R. v. Stone,  2 S.C.R. 290.Common law is made up of decisions of the court. The police officer are required to be aware of all decisons, as they are governed by them. Thus, as the court determined 23 years ago that absolute liability offences that contain terms of imprisonment are unconstitutional, the police officer who steals a car commits 3 criminal offence per incident. You can also sue the officer for breach of duty of care for are damages you incur. Hill v. Hamilton Wentworth Regional Police Services Board, 2007 SCC 41 Moreover, Section 50(1) of the Police Service Act expressly states; Liability for torts50(1) The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.The failure of a public officer to perform a statutory duty also constitutes misfeasance in a public office. Police Services Act s. 41(1) imposes on all Chiefs and Commissioners a freestanding statutory obligation to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act and the needs of the community. This includes an obligation to ensure that members of the police force do not injure members of the public through misconduct in the exercise of police functions.The public complaints process allows the public to complain in respect of the conduct of a police officer. What an accused seeks, though, is not the opportunity to file a complaint that might result in the imposition of disciplinary sanctions, but, rather, compensation for the damage they have suffered as a consequence of the Chief and/or Commissioners inadequate supervision and misfeasance in office. The public complaint process is no alternative to liability in negligence. A plaintiff cannot sue government for a policy decision; however, enforcement of that policy is an operational decision which gives rise to a duty of care. Odhauji Estate v. Yoodhouse 120031 3 S.C.R ,263.Section 1 of the Police Service Act articulates the principles Police are to respect and follow. The drivers whose vehicles are stolen by the police are victims of crime. They are being dumped at the side of the road when their vehicle is stolen and they are being smeared in the media when the police release their names and/or allow video of their car or the person themselves to be aired. Section 1 states;Declaration of principles1. Police services shall be provided throughout Ontario in accordance with the following principles:1. The need to ensure the safety and security of all persons and property in Ontario.2. The importance of safeguarding the fundamental rights guaranteed by the Canadian Charter of Rights and Freedoms and the Human Rights Code....4. The importance of respect for victims of crime and understanding of their needs.The Police core services are articulated under s. 4 and indicate they are to prevent crime, not commit it, and they are to assist victims of crime, yet in stead, they dump them off at the side of the road after stealing their vehicles. Core police services4(2) Adequate and effective police services must include, at a minimum, all of the following police services:1. Crime prevention.2. Law enforcement.3. Assistance to victims of crime.4. Public order maintenance.5. Emergency response. The Province and the police operate under colour of law, but the law is not colour blind and no one is exempt from the law. R. v. Mann,  3 S.C.R.59, 2004 SCC 52. One of the most fundamental responsibilities of a government is to ensure the security of its citizens. In a constitutional democracy, governments must act accountably and in conformity with the Constitution and the rights and liberties it guarantees. It is one of the proud accomplishments of the common law that everybody is subject to the ordinary law of the land regardless of public prominence or governmental status. As was explained in Reference re Secession of Quebec,  2 S.C.R. 217, at p. 240, the rule of law is one of the “fundamental and organizing principles of the Constitution”, and at p. 258, it was further emphasized that a crucial element of the rule of law is that “[t]here is ... one law for all.” Thus, a provincial Premier is held to have no immunity against a claim in damages when he caused injury to a private citizen.The following sections of the Highway Traffic Act are also unconstitutional.Section 107(1), (2), (3), (4), (11) and (13). Section 107(15) states;…”or to imprisonment for a term of not more than six months, or to both.”Section 112 (3).…“or to imprisonment for a term of not more than three months, or to both”Section 171(4).…”or to imprisonment for a term of not more than six months, or to both.”Section 172.1(3).…”or to imprisonment for a term of not more than six months, or to both.”Section 175(17).…”or to imprisonment for a term of not more than six months, or to both.”Section 177(4).…”or to imprisonment for a term of not more than six months, or to both.”Section 190(8).…”or to imprisonment for a term of not more than six months, or to both.”Section 200(2).…”or to imprisonment for a term of not more than six months, or to both