Quote:
Originally Posted by puckluck2
This is one of the rare threads where I agree with both sides. Posters from both sides have made great points to why it's a good law and why it's a bad law. I'm probably going to lean on good law just because I hate when these losers go crying to the media. But the unconstitutional defence is pretty intriguing. Handing out punishment before proof of guilt is worrisome.
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The unconstitutional defense invalidates everything good about the law, though. This is absolutely basic. If it's unconstitutional it's unconstitutional and the only way that you get around that is to have a court go through a s.1 analysis. The practical, "in any given case probably what will happen" argument is utterly moot.
Take a scenario. Mr. Smith is driving along the Crowsnest highway doing 85 in an 80 zone. Officer Joe, for whatever reason, decides he's going to get Mr. Smith. He pulls Mr. Smith over, claims he caught Mr. Smith driving at 150, and orders the car impounded. Mr. Smith is stranded 80 clicks outside of bumtown, nowhere.
No matter how unlikely it may seem, our system of laws is set up to make the above impossible. Before Mr. Smith's car is impounded he must be able to go in front of a judge and say, "Officer Joe is full of crap. I was going 85, not 150, and I should not be subjected to the punishment the law provides". The judge then needs to assess his credibility and Joe's, and come to a conclusion. There is no way to prevent a wrong ultimate decision, but this is the level of safeguard that Canadian law affords everyone so that there's some independent adjudicator double checking everything. Then you have the appeal process to review that adjudication.
If you have punishment meted out without a right to deny your guilt at trial, you've immediately violated fundamental principles of justice. And effectively, that is what we have here.