Phone: 604-558-8778
Toll Free: 1-855-558-8778

Firm News

cannibis legalization

Bill 17 and the Changes to the Motor Vehicle Act

Cannabis legalization is on the horizon for Canada. There have been many announcements regarding the distribution and possession of marijuana but an additional matter is the impact that this will have on impaired driving. There are pending changes on the federal level but the BC government is proposing to introduce a whole new scheme creating Immediate Roadside Prohibitions for driving while impaired by marijuana and other drugs.

There is much uncertainty about this as there is no established system or method for detecting impairment by marijuana. There are indications that there may be technology in the future that will allow for the presence of marijuana via a saliva test but it is unknown how effective this will be. This leaves police officers with limited options roadside to deal with drivers that they believe are high. Previously, it was common for police officers to issue a 24-hour prohibition for drugs in cases where the officer had reasonable and probable grounds to believe that a drivers ability to operate a vehicle was impaired by drugs. This did not have a review procedure in place. Oftentimes it involved the administration of the Standard Field Sobriety Test or the Drug Recognition Exam by an officer trained in these techniques. Both tests have their issues in that they often can result in false positives. Even blood tests can make it difficult to determine if someone is impaired by marijuana as there is little scientific information available on how much THC needs to be detected in someone’s blood before they are actually impaired. THC can linger in someone’s blood for days or weeks, long after someone is no longer affected by it. This is especially true for medical marijuana users.

The proposed changes create two new driving prohibitions in BC. They will expand upon the 12-hour prohibition for N and L drivers (Class 7 and 7L licenses). Currently, Class 7 drivers cannot have any alcohol in their system while driving. The proposed legislation will expand that to include drugs as well, detected by a “drug screening device”. There is no indication of what these devices will be. This is concerning as 12-hour prohibitions have no review procedure in place. The recourse to dispute one is via judicial review in the Supreme Court of British Columbia, something that is not accessible to the average person and expensive to retain legal counsel for. 12-hour prohibitions also result in RoadSafetyBC prohibiting a Class 7 driver for a longer period, usually by several months. If a driver refuses to comply with a demand to provide a sample for a “drug screening device” they will also receive a 12-hour prohibition. It is concerning that a lengthy driving prohibition in the length of months will result from a prohibition with no established review procedure.

The more serious offence that is being created is a 90-day immediate roadside prohibition for drugs, similar to the current roadside prohibition available for alcohol. This provides three ways for a police officer to issue you a 90-day prohibition; a blood test showing above a specified level in your blood within 2 hours of driving, or having a combination of a specified level of alcohol and drugs in your blood.

These 90-day reviews will have specified grounds of review. These include consuming the drugs after ceasing operation of the vehicle (and that the driver had no reasonable expectation that they would be required to provide a sample of blood), that the person was not impaired by drugs or a combination of drugs and alcohol and the results of the evaluation were due to a medical condition. Much alike the 90-day alcohol immediate roadside prohibitions for alcohol, the demands and testing will mirror the provisions in the Criminal Code. Given the forthcoming changes to the Criminal Code on impaired driving regarding alcohol and drugs, these are likely going to be contested in court. The taking of blood samples is an intrusive means and not easily accomplished roadside by police officers. Furthermore, current drug impairment testing procedures have many options for false positives and inaccurate results.

This will be an interesting development in driving law and will likely result in extensive legal disputes. The tests that are yet to be established will be fundamental to this regime, and its fairness as there is no current effective manner to detect drug impairment. As we are familiar and successful in both criminal impaired driving and the existing IRP scheme, we look forward to assisting our clients with defending charges under this pending regime

0
victims of crime

We Help Victims of Crime Have Their Voice

Most of us have been victims of crime in our lives. Maybe you have been threatened or stolen from; these types of offences inconvenience you for a short time, but most of the time, you can move past them. But what if it is something more serious? We hear about things that have happened to a friend of a friend, or we see stories on the news, and we hope that’s never us- the victim of a domestic assault, a robbery, and break and enter, a sexual assault, or worse…

We are a criminal defence law firm. We have extensive experience defending those charged with all these types of crimes. However, we also have a unique expertise in assisting victims of crime. Before joining Filkow Law, I was a Crown Attorney in the north, prosecuting violent offences against children. During my time as a prosecutor, I helped dozens if not hundreds of deeply traumatized and vulnerable victims of crime and witnesses navigate the court process and participate in the criminal justice system. I am proud to have brought that experience to Filkow Law, and to have helped develop this as an area of practice for our firm. We are now considered a leader in acting for complainants and witnesses.

If you have found yourself unfortunately standing in those unenviable shoes, having been victimized by crime, there are some things you can expect as the wheels of justice begin to turn.

First, depending on the type of offence, you may be subjected to numerous and ongoing interviews and exams. The police and medical professionals sometimes have a very small window in which to gather evidence against your offender. During this time, you may be struggling to process things yourself and it can feel like investigators are not sensitive to your experience. On the other hand, in some cases you may feel like investigators are not going fast enough. You have gone to police and provided what you think is good evidence, and months have gone by without any movement towards an arrest or charge- why haven’t they done anything about it? The law has developed significantly in recent years which make the timing and nature of the investigation very critical to the case. We are very familiar having acted for both sides with how this process should work. Not only can we help you navigate this confusing and frustrating whirlwind that is the beginning of a case, but we can also liaise with the various players (investigating officers, charge approval Crowns, victims’ services workers, the media) on your behalf. You may want things to move slower, or faster, you may want more information, or you may want the process to stop altogether. We can advocate for your position, whatever it may be.

Once charges are laid, the case moves from the investigation stage into the courts. The time between the first court appearance and the conclusion of the case either by trial or sentencing may take anywhere from a month or two to several years. As a victim or witness, you may feel frustrated during this process because the case becomes all about the accused. The accused gets a lawyer of his or her choice who stands up in court asserting his client’s rights and demanding certain things from the Crown and court. The case may drag on for months and months with nothing happening and all you keep hearing about is the accused’s rights. Meanwhile, you are being told exactly how you must cooperate in order to avoid being charged yourself. As the matter works its way through the courts, the Crown will speak with you periodically, and they may be informative and seem supportive, but it is important to realize that the Crown is not your lawyer. Their obligation is to be fair to the accused and the law, not to advocate for your interests. You are merely their witness. The only way to ensure you are getting all the information, options, and a realistic idea of consequences of your choices, is to retain your own counsel.

Finally, the matter will either be dropped, proceed to a guilty plea and sentencing, or a trial. You may hope for one of these things above the others. Communicating with the Crown directly can be counter-productive in this regard. Remember, they are not your lawyer; they have their own interests which are quite different than yours. However, if you have your own counsel, we can tell you what decisions you can make which will likely lead to certain outcomes.

If the case goes the distance and you find yourself with a subpoena to testify at a trial, it may be over a year after you first became victimized by the accused. Your memory will be put to the test. But your heart will be tested harder. You will have to sit in a closed space, the accused watching you as you speak, his lawyer treating you like a liar, or a drunk, or a slut… This may be the first time you have had to face him since the incident, or this may end a long string of him attempting to dissuade you from testifying. Either way, here you are. If you weren’t feeling victimized before, you certainly are now- at least if you didn’t know what to expect and were not prepared.

The Crown can let you review your statement before testifying and will give you some pointers on how court works. But, again, the only way to be fully prepared is with your own counsel. Having prosecuting hundreds of cases, I can walk you through every possible question and situation in advance of the trial. My favorite exercise that I use to prepare my victim/witness clients to testify is a role play; first I play the Crown and ask them every question the Crown can possibly ask, and then I play the defence lawyer, and cross-examine them way harder than they will likely ever be cross-examined in court. The opportunity for my clients to go through this process in a private setting, in the safety and comfort of my office before facing the accused in trial, has proven invaluable and unmatchable by any other means. Just remember that if you get tripped up, riled up, or choked up while testifying it can make the difference between guilty and not guilty. Don’t get caught off guard. Let us help you prepare. We can stand up for your rights as a victim of crime. Contact us if you have been victimized.

0
self-representation-court

Why You Should Never Represent Yourself in Court

A lot of clients come to us after several weeks or months of trying to represent themselves. But the courts and the Crown know the importance of everyone being represented and urge people to retain counsel, usually until they do. In many cases, it is understandable that a person would want to save the cost of hiring a lawyer. Perhaps you don’t qualify for legal aid because you earn a substantial income or you are not facing jail. Perhaps you see the charges you are facing as not very serious. But most of all, you trust the process; you know the Crown is supposed to be fair and the Judge, impartial. No one is yelling or banging their fists on the tables in our courts like they are on TV, and every time you have stood in court yourself, the whole thing seems to exude decorum and professionalism. So, you trust that you don’t need a criminal defence lawyer in order to be treated fairly.

In many cases, your assumption would be true. You may not get the same results without counsel, but usually you won’t get railroaded. However, it does happen. This is why, under no circumstances, should one ever represent himself.

It is disappointing and frankly shocking that in 2018 in Canada, you could be subject to absolute injustice by the criminal justice system itself. But it happens, and it may happen so subtly, you don’t even realize it. This is why it is imperative that you have good counsel at your side, no matter how minor you think your charges may be.

I recently represented a client in Kelowna for a serious matter. The client was not interested in a fight; she was only interested in taking responsibility, pleading guilty, and accepting whatever sentence the Judge saw fit to impose. My only job was to make sure the Court had all the important information about my client and appreciated all of the positive steps my client had taken. It became abundantly clear as the sentencing proceeded that this would be no easy task.

Right from the start, the Judge engaged in behaviors and facial expressions which conveyed to us that she had already made up her mind without having all the information. It was not subtle, and the stakes were very high. If my client were self-represented, she likely would have told herself that she was simply unlucky and that she would have to accept the cards she was dealt, namely, this Judge as the sentencing Judge.

Luckily for my client, I knew better. My client, like any and every accused, has certain rights and I will insist upon those rights from before a charge is laid until sentence is pronounced. Not only am I talking about Charter Rights such as the right to make full answer and defence, the right to silence, and the right not to be arbitrarily detained, for example, but also certain rights that are so basic and fundamental, you won’t find them in any Code or legislation. We don’t often have to articulate these rights because they’re taken for granted… until they are being denied. These are the Principles of Natural Justice.

You have a right to be heard. You have a right to reply to the Crown. You have a right to a full and thorough hearing (whether a trial or sentencing) which is not only in fact fair, but also appears to be fair. And you have a right to all of these things in a meaningful way, not just on the surface. When I realized almost every one of these principles was being violated for my client in Kelowna, I put a stop to the hearing immediately. I moved for the Judge to remove herself from the case, and had the matter rescheduled. In the week that followed, I conducted extensive case law research on the Principles of Natural Justice, filed a detailed written application outlining the apprehension of bias that permeated the hearing, and demanded an oral hearing and right to reply to Crown on the matter. In the end, we were able to take control of the situation.

If someone in my client’s situation were self-represented and had proceeded without counsel, almost certainly, they would have received an unfair sentence. Because even if the sentence had been within the range, it would have been higher than it otherwise would have been because of obvious preconceptions by the Judge. This would have made it nearly impossible to appeal for two reasons, first, because facial expressions and non verbal behaviors will not appear on a transcript of the proceedings, and second, because a self-represented person would not have raised it as a concern at the hearing, making the question on appeal- well why didn’t you say something at the time?

These situations don’t arise often. But they do arise. When they do, the situation is often dynamic, urgent, and delicate. If you don’t have experienced counsel to protect you, what should have been a simple, non serious matter can quickly turn into a high stakes fight for your future. This is why under no circumstances should one ever represent himself. If you have a case you need assistance with please don’t hesitate to contact us.

0
personal-injury

Personal Injury Basics: Fault Matters – no matter what the other driver tells you

As we know, fault is the name of the game in compensation for civil personal injury claims.  If you want damages for something (such as for your injuries suffered in a car accident), you have to show why the other party involved caused you to suffer a loss.  Just being hurt is not enough.  Causation is key.  Entire trials are run just to determine who caused what damage, separate and apart from determining what the damage actually is.

If you are stopped at a red light and the evidence is that you were rear-ended by a speeding driver, your legal position is obviously very strong, and any damages you can prove will be easier to demand from the other side during litigation or settlement negotiations.  But if the evidence is that you were the careless driver, then don’t expect ICBC to pay much for your injuries that resulted from the crash.  They will say that you were the author of your own misfortune.      

But those are extremes.  Fault is often the subject of debate – such as in cases where the car accident is the result of a left turn or a lane change.  In cases like these, legal fault is less clear and it’s the discovery of all the facts that governs the outcome of the case.  For example, it would be important to know things like, how fast was each car going?  Are there any witnesses who can advise on how the accident took place?  Is there any video showing the accident?  Which motorist is worthy of blame for the accident?  Or, if both of them are, which motorist is worthy of more of the blame?  At trial, if the court rules that the plaintiff driver is 25% to blame for the accident and the defendant 75%, then obviously the plaintiff can only be awarded 75% of the value of his or her proven damages.

Sometimes a person might say, “I was in an accident.  But the other driver came up to me after the crash and kept apologizing, so he should be at fault.”

Not so fast.  While the testimony of what witnesses will say can be evidence of some things, the law will not allow apologies to be evidence of fault.  It’s codified in a statute called the Apology Act.  The court will not care about who apologized for what after an accident, no matter how polite the defendant was at the scene.  The court will want evidence of facts respecting how the accident took place.

So fault matters.  The exception is when you are trying to obtain accident benefits under your insurance contract with ICBC – such as payment of reasonable medical expenses.  Those benefits are generally payable regardless of who caused the accident.  They are also known as “no fault” benefits.   

If you are injured in a car accident, tell us everything about how it took place.  Contact us and we’ll advise on the nature of your claim.

0
Personal Injury Lawyer

Filkow Law Welcomes New Personal Injury Lawyer

Filkow Law welcomes personal injury lawyer Blake Cooper to its legal team.  Blake’s focus is on ICBC injury claims, acting for car accident victims who have suffered losses as a result of someone else’s carelessness on the road.  He never represents the insurance company.

Blake has an intimate knowledge of how the law values personal injury claims.  He also knows how ICBC works to dispute that valuation.  As the insurance company, ICBC’s job is to defend the actions of its negligent drivers and to pay the injured victims as little as possible.  While almost all of us in British Columbia are ICBC customers, the landscape changes when an accident strikes.  Indeed, the claims procedure is largely adversarial.  

 In a negligence claim for pain and suffering, ICBC owes no duty to the injured victim, and employs a staff of insurance adjusters to challenge the strength of a victim’s case in order to limit the settlement payout.  Adjusters are professional negotiators.  They know that if an injured person rejects their settlement offer, the injured person’s last recourse is by starting a lawsuit, which ICBC will always defend with its own legal counsel.  Accordingly, without someone in their corner, injured persons may find themselves at a significant bargaining disadvantage when it comes to settling their case.

 As a plaintiff’s lawyer, Blake’s job is to level the playing field.  He works with his clients to present their claims properly, negotiate effectively on their behalf, and/or fight their case in court.

 If you are hurt in a motor vehicle accident, call Blake at Filkow Law to assist you.

0
Getting arrested

“I am being arrested by the police. I need to speak to a lawyer”

Kevin Filkow recently spoke to new criminal lawyers and civil lawyers at the Trial Lawyers Association, “Trial by Fire” program. The main topic was what to do when someone is arrested or is in police custody. It was a very important and instructive discussion.

Although, the most fundamental and critical advice is that an individual should not make any statements to the police, there are many other important considerations, protections and strategies that must be communicated.

The discussion covered what the individual who is in police custody should do, what should the lawyer discuss with the police? What information should the lawyer receive from the police? What can be done to assist the individual being released from custody? Is there different advice depending on whether the arrest is for drinking and driving charge, domestic assault, drug charges or murder?

One of the most scary and unpleasant events for someone is to be in police custody. There is a serious imbalance of power. One’s fundamental liberties are at stake.A phone call to a lawyer is generally the only legal assistance at a very vulnerable time. The lawyers’ role and legal assistance is extremely important on many levels. Be sure to contact us if you have been arrested. 

0
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.

0
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.

0
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.

0
Personal Injury Lawyer

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

1