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Daniel Freudman
Daniel Freudman, Lawyer
Category: Canada Law
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I know was pulled over on the 401 near Brockville,ON going

Customer Question

Hello my name is Stephanie
Someone I know was pulled over on the 401 near Brockville,ON going eastbound. The officer said he was pulled over because he was speeding, however the person claims he was on cruise control and was not speeding, by the way he is a black male age 40 driving alone. The officer took his ID back to the cruiser and ran the license (this person has no warrants and the drivers license is in good standing) however the officer noticed he was on probation and can not be in possesion of anything with a magnetic strip also previous history of fraud charges. The officer asked him to get out of the car and detained him inside the police cruiser "because he's on probation, while he conducts the search" he searched the back seat first found nothing, searched the trunk founds a lot of stuff like old cheques and credits cards then he goes to the front of the vehicle LAST and finds a prepaid vanilla Mastercard and a best buy gift card. The officer had no reasonable grounds to conduct the search but claims he saw the best buy gift card and vanilla Mastercard in the open center console when the driver gave him his license (however the driver claims this was closed and like I said this is where the officer searched last) also the speeding ticket was not issued until next day when the person went to jail. my question is since we've concluded that it's his word against the officer about the search being conducted with reasonable grounds...since there seems to be no audio or video recording of the events.. how does one create a doubt for the crown to see this as racial profiling? is it automatically presumed by the crown that the detained is lying vs. the police officer ? Is there enough argument to make a charter rights application?
Submitted: 1 year ago.
Category: Canada Law
Expert:  Daniel Freudman replied 1 year ago.

It is definitely not 'automatically presumed' that the detained person is lying. Rather, it will come down to credibility. To assist, you can present the case of Whalen

Whalen (Dec. 2, 1998), 40 W.C.B.(2d) 270 (Ont.Ct.(Gen.Div.))- an officer, when testifying, is not an officer of the state or the court, and an officer's evidence was not entitled to any higher credibility than that of any sworn evidence (i.e. police officers have no ‘extra credibility’)

Expert:  Daniel Freudman replied 1 year ago.

By the sounds of it, there is certainly enough evidence to make a Charter s.8 application. Keep in mind though, that such an Application must be submitted well in advance of the trial.

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