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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-link to http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/driver-improvement-policies-guidelines.pdf>. 

In addition to <Immediate Roadside Prohibitions-link to http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/factsheet-immediate-roadside-prohibition.pdf> (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 are versed in reviewing all kinds of prohibitions under the Motor Vehicle Act.  These are typically issued as a result of someone accumulating too many points on their driving record or by incurring more than one high risk driving offences in a 12-month period. 

The driver improvement program allows for an escalating series of interventions depending on how many points are on a persons driving record.  Detailed charts can be found in the Driver Improvement Program Policies and Guidelines (which can be found here <<http://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/driver-improvement-policies-guidelines.pdf>>)

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’ve 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. 

There are many considerations that are included in an 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 and would be most likely 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 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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sexual assault lawyer

Sexual Assault Charges FAQ

Sexual assault is one of the most serious charges in the Criminal Code, and the area of law is also one of the most complex.

Over the last few decades, our society has transformed in how it understands and responds to allegations of sexual assault and similar offences, and the legal process in cases of sex assault has been at the centre of a series of recent high-profile news stories in Canada and abroad. Canadian criminal law has transformed, too — and for good reason, because the law used to allow too many old, unproven myths and gender stereotypes.

The law has special rules and procedures meant to address the unique nature of these charges, and society’s interest in balancing fairness for complainants (which is what we call the alleged victim during the legal process) with fairness to the accused.

What is a “sexual assault,” in law?

There are a number of different charges in the Criminal Code that cover different types of specific conduct, but at its core a sexual assault, in law, is an assault (usually touching of some kind) that is sexual in nature and to which the complainant did not consent. Each of these concepts – assault, sexual nature, and consent – means something different in Canadian criminal law than it might in everyday life.

Each case is different, but here are some of the more common scenarios along with examples of the kinds of special rules and procedures that are involved:

In some cases the issue is whether the events in question ever took place. This is more common with historic sex assaults (where the alleged event took place a long time ago) or where the complainant was a child at the time of the alleged events. The law now makes it clear that corroboration – outside evidence that confirms what the complainant says – is not required for a conviction, so the case turns on the complainant’s version of events. Cross-examination of children is a specialised skill on its own, and in cases like this the Crown often uses special procedures to try to have the complainant’s video-taped statements to police used as evidence at trial instead of having the complainant re-tell their whole story when they take the stand to testify in court.

Sometimes nobody disputes that an assault took place, but the issue is who committed the assault. In these situations the police and Crown might gather and use DNA and other types of forensic evidence, which brings with it its own complex body of law about how it can be collected and interpreted in court.

Often, when nobody disputes that the events happened between the particular people, the issue is whether the complainant really did consent or not. If they did consent (as the law defines it), then it is not an assault as far as the law is concerned. This is one of the more difficult scenarios to navigate in the courtroom because there were almost never other people around who can testify about what happened, so it comes down to the complainant’s story versus that of the accused. This is also one of the topics the law has evolved to address differently than it used to. For example, except in rare cases, the complainant’s sexual history can’t be made part of the trial and defence lawyers can’t use it to argue that a complainant was more likely to have consented because they consented to other acts in the past, or that the complainant is generally less worthy of belief.

Another scenario is when the complainant did not consent to the sexual activity but the accused person mistakenly believed that they did. This raises the defence of honest but mistaken belief in consent. Again, though, this is not as simple as just arguing that the accused really did believe it – rather, the law requires evidence that the accused person’s belief was reasonable and that they took real steps to make sure the complainant was consenting. The accused can’t have been reckless or wilfully blind (once again, terms with special meanings in the law) about what the complainant wanted. The law also says the accused can’t argue that their own intoxication was what made them make the mistake.

No matter the facts of the particular case, sexual assaults are serious charges with serious consequences for an accused person. If you’re being investigated for or have been charged with a sexual assault or a related offence, it is highly recommended that you contact an experienced criminal defence lawyer to protect your interests throughout the process.

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customs law

Arrested at the border? Call us.

Due to our close proximity to YVR, Canada’s third busiest airport (I can see the planes land from my office!), and to two international border crossings, Peace Arch and Pacific Highway, we encounter a large amount of customs and immigration related matters.

These include situations where the Canada Border Services Agency (CBSA) has taken customs enforcement action or taken immigration enforcement action against someone.  Immigration enforcement action can include exclusion orders or being “allowed to leave” Canada for being inadmissible.  Customs enforcement actions can involve a variety of issues, including:

  • Possession or smuggling of firearms
  • Possession and smuggling of narcotics
  • Failing to declare High Value Items (including watches, jewelry, designer accessories, etc.)
  • Failing to declare currency over $10,000
  • Failing to declare agricultural items (animal products and other food items)
  • Possession of child pornography

In the case of firearms, child pornography, and narcotics, offenders are usually charged under both the Customs Act and Criminal Code.  These charges are serious and can carry large minimum sentences.  These offences will often include investigations by both the CBSA and the Royal Canadian Mounted Police (RCMP).

Customs Act charges, such as smuggling or failing to declare goods can involve large fines on top of having to pay the outstanding duties and taxes, in addition to the risk of jail.  CBSA Officers can use discretion to either taken seizure enforcement action at the port of entry, where the items are seized and released once a penalty is paid, or refer the case to criminal investigations, in which case an arrest is made and the matter goes before the courts.  The penalties at the court level can involve a period of imprisonment and/or a large fine (for high value items it is often equal to the duties and taxes evaded).  When high value items are seized for failing to declare them, assuming that they are actually admissible to Canada, they will be held until any outstanding penalties are paid.

Certain offences under the Customs Act can lead to a criminal record, such as:

  • Making a false or deceptive statement to a CBSA officer contrary to Section 153(a) of the Customs Act
  • Smuggling under Section 159 of the Customs Act

An experienced customs lawyer can assist you in both the criminal court process as well as in a Ministerial Review of a Customs Act seizure.  The Ministerial Review follows Administrative Law principles and has an adjudicator review the customs seizure to determine if it was correctly implemented.  A successful Ministerial Review can result in the action being overturned or the level of action being adjusted, potentially resulting in reduced fines or other penalties.  In cases of high value items, this can make a significant financial difference.

Having worked for Canada Border Services previously, I am experienced in the nuances of Customs and Immigration law which gives me a different perspective when handling a case involving a Customs Act violation.  I was involved in the seizure of firearms, narcotics, currency and high value undeclared items.  I have since been able to assist my clients with Customs Act charges, saving them both time, money and make sure they receive the best outcome for their case.  Contact me if you have been the subject of a customs seizure to find out what your options are.

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Domestic Assault: What you need to know

A domestic assault charge can have serious and long lasting consequences. No matter how minor the incident, it will be treated as a very serious matter by police and prosecutors. As soon as a spouse, family member, a neighbour or other third party calls the police to report a domestic incident, the case will be handled differently from other criminal cases. The police will show up quickly, and they will almost always make an arrest, even when there are no injuries.

Know your rights

Anytime you are arrested, you have several fundamental rights afforded to you under the Canadian Charter of Rights and Freedoms, including the right to speak to a lawyer without delay.  Many people still do not exercise their right to speak with a lawyer when they have been charged with domestic assault. While the police may tell you that this is your chance to tell them your side of the story, the reality is that the police are not on your side, and anything you tell them can and will be used against you. It is always recommended that you exercise your right to speak to a lawyer and to otherwise remain silent (that is do not talk to the police about the incident or otherwise).

A knowledgeable criminal lawyer will be in the best position to provide you with immediate legal advice upon you being arrested for domestic assault.

Know your bail conditions

After your arrest, you will likely be released with conditions. Bail conditions last until the completion of the case or unless they are varied, either directly by the police or by a Justice of the Peace or a judge. One of the basic conditions is likely to be that you do not have any communication or contact “directly or indirectly” with your partner or spouse, and/or that you do not go to the address where he/she resides (which may be your house) or go to his or her employment or educational facility.

The term “communicate” refers to any form of communication. This means that you cannot use a third party to contact or communicate with your partner or spouse. It also means that you cannot post messages on social media directed at your spouse, knowing that he or she is likely to see those messages. Even if your partner or spouse initiates contact with you, this is not a defence if you continue to engage in the communication.

It is fundamental that you don’t breach your conditions. It is highly recommended that you speak to a knowledgeable criminal defence lawyer as to changing the conditions of your release.

Know the process

A conviction for a domestic assault can result in a criminal record, the loss of your employment, can prevent you from getting certain types of jobs in the future, and could prevent you from traveling to the United States.

Resolving a domestic assault case is not as simple as your spouse asking to have the charges dropped. It is not up to the complainant to drop or pursue the charges. The case is dealt within the criminal justice system.

It is highly recommended that if you have been arrested or charged with domestic assault, you contact an experienced criminal defence lawyer to represent your interests.

We are very experienced with domestic assault cases. Don’t delay and contact us if you have been charged. We have many offices in BC to serve you including Vancouver, Surrey, Richmond and Kelowna.

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Our Head Office has Moved!

Filkow Law is pleased to announce as of August 15, our new head office is located at 510-450 SW Marine Drive in Vancouver. Our new office is on the Marine Drive Canada Line station. Extensive metered and underground parking is also available.

Our new and larger office location allows us to provide additional services to all of our clients.

In addition to its excellent daily trial practice in criminaldriving and personal injury law, Filkow Law has expanded to include new lawyers practicing in the areas of car accidentsICBC breaches, family law, customs and border cases and other litigation matters.

Filkow Law will continue to provide legal services out of our offices in RichmondSurrey and Kelowna.

Please do not hesitate to contact us for any assistance at 604-558-8778. We look forward to seeing and serving you at our new Vancouver location.

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