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stopped by police

What To Do If You Are Stopped By Police

Being stopped by the police is never a fun experience. It can be very unsettling to be pulled over on the street or in a vehicle and questioned by the police. When you are stopped by the police, the very first question you would have is “what are my rights? Do I have to say anything? If so, to what extent?”

There are very limited exceptions – you may have a duty to identify yourself and to provide identification – the law in Canada is clear: every individual has the right to remain silent, the right to Counsel and to other protected rights as well.

1. Being stopped on the street

Suppose that you are walking on the street and encounter the police. If the police simply say “stop” or surround you then you are detained since the officer blocks your path in an intimidating manner.

A “detention” is the act of keeping back or withholding, either accidently or by design, a person or thing. R. v. Suberu, the leading case from the Supreme Court of Canada, defines a detention as following:

“A suspension of an individual’s liberty by significant physical or psychological restraint, with various factors helping to determine whether there was a psychological detention.”

The difficulty for you is that you do not know if the police have reasonable grounds to detain you. This ambiguity can easily be resolved by simply telling the police officer that you do not want to speak to them and ask, “Am I free to go?”. If the police tell you that you are not free to leave you are now detained and you have the right to be told why.

Generally, the police do not have the power to stop or question you without a reason. The police are only permitted to detain and demand your identification when they have a reasonable suspicions that you are engaged in criminal activity.  If the police do not have a reasonable reasons the detention is illegal and any evidence they obtain can be excluded at trial. 

However, there is an exception, if the police stop you to issue an appearance notice or if you have committed a by-law infraction or other ticket-able offence, you are under an obligation to identify yourself by giving them your name and address. It is a criminal offence to lie about your name or address and you may be charged with obstructing the police from carrying out their duties.

When you are detained, you have no obligation to say anything to the police, nor do you need to answer any of their questions. You are free to say absolutely nothing to the police as the law allows you to remain silent.

The police also have a duty to let you speak to a lawyer in private as soon as possible. It is highly recommended you speak to a lawyer before making any statements to the police.

2. Being stopped while driving

Just like when you are stopped on the street, your Charter rights apply to you and to anyone else in your car when the police officer pulls you over while you are driving. However, in Canada, driving is considered a privilege, not a right and the power for a stop comes from the Highway Traffic Act. Thus, while you are protected by the Charter rights, there are certain obligations that you have during a police vehicle stop.

The police are legally permitted to investigate in almost all driving situations if the police have reasonable grounds to believe you have committed a criminal offence, or if they observe you committing an offence under the Highway Traffic Act.

Under the Highway Traffic Act, a driver must present their driver’s licence, vehicle registration and a proof of insurance for the vehicle they are driving. Failing to cooperate with the police officer in this situation may give them the right to arrest you and lay a criminal charge for obstruction. 

The police can also order you to step out of your vehicle if they suspect you are driving while impaired or they have reasonable grounds to concern for their safety.

However, the police power to stop your vehicle to investigate your license, insurance, registration, or the safety of your vehicle does not permit a comprehensive search of your car or an investigation into identities of your passengers. You have a right to say “no” to a police demand to search your vehicle.

Likewise, passengers do not have an obligation to identify themselves unless the police have reasonable suspicion or belief that they are involved in a criminal offence or by-law infraction.

Remember that it’s always your right to ask why you are being stopped and to contact a lawyer before answering any questions or consenting to the police requests.

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Court of Appeal

Appealing a Sentence in British Columbia – What does it Mean?

Were you convicted when you were found guilty of a crime?

Did you receive a sentence after being found guilty or pleading guilty to committing a crime?

Was the decision unreasonable? Can it be supported by the evidence? Did the lower court judge make an error in law? Was there a miscarriage of justice?

Was your sentence imposed within the past 30 days?

If the answer to the above question is “Yes”, you may be able to appeal your sentence.

Simply, to appeal a sentence means to apply for a review of the decision of the lower court. In British Columbia, appeals from the Provincial Court are heard in the BC Supreme Court and appeals from the BC Supreme Court are heard in the BC Court of Appeal.

Commonly, grounds for an appeal are either based on an error in law or procedure; not facts.

In submitting a notice of appeal based on error in law or procedure, we are arguing that the judge made a mistake in the court proceeding concerning a matter of law or procedure. An example of an error in law is a judge that improperly admits evidence during trial that should have be excluded based on a violation of Section 8 (Right to be secure against unreasonable search and seizure) of The Canadian Charter of Rights and Freedoms.

It is important to note that the purpose of an appeal is not to retry the case. This means that lawyers will not submit new evidence or present witnesses. Rather, the focus of an appeal is to correct an error that was made by the lower court or guide the interpretation of the law.

The appeal process can be quite complex. Before you make a decision to appeal your case, talk to a criminal lawyer. Having an experienced criminal lawyer on your team can help increase the chance of a positive outcome.

Contact us if you are thinking about appealing your case.

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Sexual Offences

What If You Are Charged With A Sexual Offence

The law of sexual assault in Canada is dynamic and constantly changing. There are several stages of the prosecution of a sexual offence that require important decisions on the part of the accused that you should not make without the guidance of experienced counsel.

When you are initially charged with a sexual offence, there will be bail considerations and an opportunity for negotiations with the Crown. Ultimately, if you are not guilty, you may end up having to go to trial.

An experienced lawyer will help you decide in which level of court your particular sexual offence case should be heard, in order to provide the best chances for an acquittal. Depending on the age and relationship to you of the complainant, a preliminary inquiry may or may not be fruitful. There are a wide range of highly technical procedures available to the Crown that a good lawyer knows how to anticipate and oppose.

At the preliminary inquiry stage, you want a lawyer with experience applying for witnesses to be compelled to submit to cross examination, and opposing other evidentiary motions.

At the trial stage, you want a lawyer with experience making third-party records applications, making prior sexual history applications, challenging the admissibility of confessions, cross examination, and most importantly, a lawyer who is very familiar with the unique nuances between the elements of different sexual offences. Depending on which sexual offence you are charged with, there may be subtle defences available to you based on your actions and/or intentions.

If you are guilty and want to take responsibility for your charges, you will need a lawyer who is current on the recent and continuing developments in the sentencing law of sexual offences. The aggravating factors that may increase your sentence for a sexual offence can be misunderstood and misused by Crown. You need a lawyer who can protect you from any such injustice and highlight any mitigating factors in your case to the court. There are also special sentencing considerations for sexual offences that you don’t face for any other type of crime, especially if the complainant is a youth. There are mandatory minimum jail sentences in some cases, and you could face very strict conditions for up to life. You need a lawyer who has experience with these procedures to help you navigate the system if you want to plead guilty in order to secure the best possible sentence.

Regardless of whether you are guilty or innocent, if you are charged with a sexual offence including but not limited to sexual assault, sexual interference, sexual exploitation, invitation to sexual touching, possession or distribution of child pornography, luring children, indecent exposure, voyeurism, human trafficking, or incest, you need an experienced lawyer with an expertise in this area of law to ensure you have the best opportunity for a good result.

If you have been charged with or are being investigated for a sexual offence, please don’t hesitate to contact us for a consultation.

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Trial Lawyers Association of BC

Kevin Filkow Chairs TLABC Event

Mr. Filkow is the chairing the upcoming 2017 Trial Lawyers Association Criminal Law Conference. In recent years, Mr. Filkow has spoken and presented at a number of legal education programs and seminars. Recent topics and issues covered are:

· Trial delays

· Police and Expert evidence

· Search and Seizure issues

· Forensic Sciences

· Drinking and Driving

· Motor Vehicle Act Stops

· Immediate Roadside and Administrative Driving Prohibitions

· Civil Forfeiture

· ICBC Breaches

For any criminal or driving matter, please do not hesitate to contact us for assistance at 604-558-8778.

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driving-prohibition

BC Driving Prohibition FAQ

We have been receiving lots of calls regarding driving prohibitions recently.  As  a leading BC law firm dealing with driving offences and driving prohibitions, we have handled hundreds of cases where driver’s are facing losing their license under such things as the Driver Improvement Program

In addition to Immediate Roadside Prohibitions (which can be 12 hours, 24 hours, 3 days, 5 days or 90 days in length) , there are several different kinds of driving prohibitions that can be issued by the Superintendent of Motor Vehicles, also known as RoadSafetyBC.

These include the following:

Driver Improvement Program prohibitions pursuant to section 93(1)(a)(ii) of the Motor Vehicle Act for having a poor driving record

Medical Prohibitions from driving pursuant to section 92 of the Motor Vehicle Act

Driving Prohibition under section 93(1)(c) where an officer writes to RoadSafetyBC requesting a license suspension

We most commonly see Notice of Intent to Prohibit letters or Notice of Prohibition letters which communicate an intention to prohibit someone under section 93(1)(a)(ii) but we are versed in reviewing all kinds of prohibitions under the Motor Vehicle Act.  These Prohibition Letters are issued as a result of a person having too many driving offences on their driving record. 

The Driver Improvement Program allows for an escalating series of interventions depending on how many points are on a person’s driving record.  Detailed charts can be found in the Driver Improvement Program Policies and Guidelines (which can be found here 

Essentially, if you incur over 14 points in a two-year period as a Class 5 driver, you will receive a letter that RoadSafetyBC will be prohibiting you from driving.  Alternatively, if you are found guilty of more than one high risk driving offence in a 12 month period, you will also be looking at a driving prohibition (these include using an electronic device while driving, excessive speeding, driving without due care and attention, and driving without consideration). 

As a class 7 driver, if you incur more than 3 points or even one high risk driving offence, RoadSafetyBC will seek to prohibit you from driving. 

You have received the letter, now what?

After receiving either a Notice of Intent to Prohibit or a Notice of Prohibition you have the option at any point to write a letter (with a $100 application fee) to request a review of your driving prohibition.  The Notice of Intent letter will give you 21 days to submit a review.  If you submit a letter during this period, the decision to prohibit you will be suspended until a final decision is made.  If you do not send a letter, or your submission is rejected, you will receive a second letter, the Notice of Prohibition.  You can submit a second review or your first review after receiving the Notice of Prohibition but it will be outstanding.  This means that ICBC can cancel your license or a police officer can personally serve you with the prohibition (starting it immediately) if you do not acknowledge the prohibition by signing it or turning your license into an ICBC office. 

RoadSafetyBC has several options on a review of driving prohibition: they can uphold the prohibition, reduce it in duration (in whole months generally) or cancel the prohibition altogether.  There can be no special exceptions for use of the license (such as work use only). 

There are many considerations that are included in a submission to review a driving prohibition.  Hardship alone will not result in a driving prohibition being cancelled! Even if you will lose your job, RoadSafetyBC can and will uphold a driving prohibition.  RoadSafetyBC will look at your driving record, the hardship a driving prohibition would cause and consider factors included in their policies and guidelines.  We are very experienced with drafting these submissions and how factors are considered and weighed by RoadSafetyBC.  We have drafted hundreds of submissions and are able to tailor a submission that includes your personal circumstances to get the best result possible.  Often, we are even able to assist clients by submitting a second successful review for someone after the initial review they submitted on their own failed. If you are facing a driving prohibition in BC please contact us for assistance

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Filkow Law

Filkow Welcomes A New Criminal Defence Lawyer

Filkow Law welcomes its newest criminal defence lawyer, Jacqueline Halliburn.

 Ms. Halliburn comes to us from Thompson, Manitoba, the crime capital of Canada, where she spent the last three years as a Crown Prosecutor.

She specialized in the prosecution of child abuse matters and serious violent crime. Accordingly, Ms. Halliburn knows exactly how the Crown thinks when they are prosecuting violent crime, particularly sexual assault, child abuse and pornography, and young offenders.

 With her extensive experience in negotiations, bail and sentencing hearings, and trials at all court levels, we are excited to have her bring her unique perspective to the firm. If you have a case that falls under Ms. Halliburn’s specializations please contact us

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IRP charges

Fighting an IRP

Since September 20, 2010, the Immediate Roadside Prohibition (IRP) regime largely replaced the judicial process in the field of drinking and driving offences. In another words, most drinking and driving cases do not involve appearing in Court. In British Columbia, the police issue an IRP and submit a report to the Superintendent of the Motor Vehicles. There are seven days to dispute the IRP. The review process takes place in written or oral format before an adjudicator in Victoria.

The penalties are severe and swift. Those who the police report blew a “fail” or “refuse to blow” will immediately lose their driver’s licences for 90 days. In addition, the vehicle they were driving is impounded for 30 days. There are also significant requirements for participation and completion of the Responsible Drivers Program and the Interlock Ignition Program. There are also significant financial consequences including the towing and storage fees for the impounded vehicle and the costs of required programs. An IRP also means a serious alcohol related offence on one’s record which can carry lasting negative consequences.

The area of drinking and driving is very specialized and the issues are technical and can be quite complicated. What would be relevant in a criminal case may be very different than what is important on an IRP review.    

Filkow Law is a leading authority and expert on IRPs  and all drinking and driving offences. This area of the law is highly specialized. If you receive an IRP or other drinking and driving offence, please contact 604-558-8778 for legal assistance.

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richmond's best lawyer

Filkow Law Voted Richmond’s Best Lawyer Again!

Filkow Law is pleased to have been voted 2017 Richmond’s best law firm by Richmond News. Filkow Law was also voted the 2016 Richmond’s best law firm. The lawyers at Filkow Law specialize in Criminal charges, Driving cases, ICBC and Car Accident cases. Mr. Filkow, his associates and team have been serving a diverse community in the Richmond area for over 20 years. The lawyers and staff at the firm also speak Mandarin, Cantonese, Punjabi, Hindi, Korean and German.

Filkow Law is a highly respected firm with over 25 years of experience.

Filkow Law looks forward to continuing to deliver excellent outcomes for its clients. Please do not hesitate to contact any of the lawyers at the firm at 604-278-8100

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ICBC Breach

ICBC Breaches

The lawyers at Filkow Law have acted for thousands of drivers in British Columbia in cases such as drinking and driving, driving while prohibited, hit and runs, and all types of Criminal Code and Motor Vehicle Act cases. In many of these cases our clients have been involved in accidents and where injuries have occurred to them and to the other parties and ICBC becomes involved.  Apart from the consequences of the criminal or driving court matter itself, ICBC is a very big issue. That is, ICBC will say the driver had no insurance because he was drinking and driving, or left the scene, etc.  As a result, we have become very experienced and successful in handling insurance (ICBC) breach cases.

If ICBC suspects that you were in breach of your insurance policy at the time of an accident they will be quick to deny you coverage.  ICBC can deny your coverage for a number of reasons, from drinking and driving to making a misleading statement to an adjuster. This leaves you liable for the damage and injuries to both yourself and others caused by the accident.  A breached ICBC policy is extremely costly, both financially and emotionally, and can put you and your family in an incredibly stressful situation.  The burden, however, is on ICBC to prove that you breached your insurance policy. Even if they are successful in proving the breach, they still have to collect the settlement from you.  You should not accept a breach, or enter into a payment plan, without talking to a lawyer.

Why is it difficult for ICBC to prove you were in breach of your policy?  Take for example, a situation where you are suspected of drinking and driving and causing an accident.  You may be charged criminally at the scene for impaired driving, or you may fail a breathaylyzer at the scene and be given an immediate roadside suspension.  In either of these scenarios, it is almost certain ICBC will say you are in breach.  Even if you successfully fight the charge or dispute the prohibition, ICBC will likely breach you by relying on the officer’s’ evidence from the scene.

The burden, however, is on ICBC to prove your breach is higher than a simple suspicion that you were drinking.  ICBC must show that, more likely than not, you were incapable of properly controlling your vehicle and that caused the accident.  The law is well established and goes back to the 1960s, where in Union Insurance Society of Canton Limited v. Andre Arenault, 1961 CanLII 83 (SCC), the Supreme Court of Canada stated:

In my view there is a wide difference between being likely to drive improperly and being incapable of driving properly.  Every driver who is under the influence of liquor to the point of being incapable of proper control is certainly impaired, but in my opinion it does not follow that every impaired driver is necessarily incapable of proper control.

This was quoted in a 1980 case called Kim v. Insurance Corp. of British Columbia (1980), 21 B.C.L.R. 18 (S.C.) which added:

In terms of the clear distinction drawn by those words it would be necessary for the defendant to prove that the plaintiff’s state went beyond impairment to a point where he was incapable of driving properly.  It necessarily follows that the state of incapacity cannot be established by the mere proof that the breathalyser reading exceeded .08.

A failed breathalyzer test is simply not enough evidence for ICBC to prove that you were incapable of driving when the accident occurred. There must be other evidence of intoxication, such as witnesses at the scene, or an expert stating in court that your blood/alcohol level at the time of the accident would have left you incapable. 

An ICBC insurance breach is serious.  It can leave you owing ICBC hundreds of thousands of dollars and without a license until you pay. Even where a breach is established there are many strategic and effective legal avenues to take advantage of.  If ICBC has told you they are considering breaching your policy you should consult a lawyer immediately to discuss your options.

The lawyers at Filkow Law have decades of experience assisting drivers with criminal charges, roadside prohibitions and the ICBC breaches that can result.  Call 604-558-6678 today for a free consultation.

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criminal record checks

What’s Really In A Criminal Record Check?

Have you wondered what will show up on a Criminal Record Check and how it could affect you?

Criminal record checks may be required by employers and volunteer agencies, as well as for adoptions, some travel, citizenship and immigration, or a record suspension (previously known as a pardon).  If you have been accused of, charged with, and/or convicted of an offence, it is important to be aware of the information contained in a criminal record check, and how you can ensure this document accurately reflects your background and current circumstances.

Information with regard to criminal convictions, charges, and allegations are contained on several databases, including:

Canadian Police Information Centre (CPIC) – a nationally maintained database compiled by the RCMP.  It generally includes a check of the National Repository for Criminal Records and may include checks of other national data banks.

JUSTIN is a British Columbia-wide case management database.  It is noteworthy that some of information contained on JUSTIN is also available on the publicly available “Court Services Online”.

PRIME is a British Columbia-wide police database.  Generally any contact with police will be documented on this database, whether reporting an offence, being named in an investigation of an offence, or having the police recommend charges for an offence.

Two key different types of documents may be requested:

Criminal Record Checks will produce any record of criminal charges, convictions and discharges, and fingerprint information.

Vulnerable Sector Checks will include information on a criminal record check as well as any record suspensions or pardons for sexual offences, and local police records for information relevant to the vulnerable sector check (generally sexual offences or offences viewed as targeting vulnerable individuals).

Pending charges will appear on criminal record checks (and on database searches that can be performed on entry to the United States). 

Unfortunately, in some cases for action is required by an accused individual to ensure their record remains clear of offences they have not been convicted of or have received a discharge or pardon for.  If you are concerned your Criminal Record check may not accurately reflect your criminal history or charge status, contact Filkow Law to discuss your options.

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