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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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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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The Right Drug Defence

A drug conviction can have lifelong implications.

Drug related offences, particularly trafficking and possession for the purpose of trafficking, are some of the most heavily resourced police files. Police receive extensive training and are provided unlimited resources to utilize a variety of investigative techniques for drug cases. Some of these techniques include:

-Surveillance
-Confidential informants
-Wiretaps
-Undercover officers
-Trafficking devices

The accused is often faced with a large amount of evidence against him/her. The drug case looks bad and the penalties and implications can be very serious.

As drug cases have many layers, a wide variety of legal issues arise. It is important to go through all the evidence with a fine tooth comb and flush out the different issues.

Drug cases require strong preparation, excellent strategy, and more importantly, the right lawyer and legal team.

We have recently achieved some remarkable results for our clients with drug charges. Our extensive experience on drug cases has allowed us to develop specialized knowledge and a specific approach to handling these types of complex cases.

 

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Kevin Filkow chairs TLABC webinar on the Immediate Roadside Prohibition (“IRP”) regime

Kevin Filkow presented to members of the Trial Lawyers Association of BC on March 3, 2016. The informative webinar instructed lawyers on the Immediate Roadside Prohibition (“IRP”)  regime. The topics covered were:

  • Issues that determine whether a client should file for a review
  • Challenging the admissibility of evidence
  • Challenging the credibility and reliability of evidence
  • Taking advantage of police mistakes
  • Common mistakes that lawyers seem to be making
  • The inside scoop on the workings of RoadSafetyBC and its policies
  • The FST – how it works, why it was introduced and the basics of calibration testings
  • New case law
  • The remedial programs

The Immediate Roadside Prohibition regime is very different than how the system used to work. The process is different. The laws are different. The issues are different.  The timelines are different. The decision makers are different. It has become a very specialized area.

Filkow Law is a leading BC law firm dealing with drinking and driving offences. If you receive an IRP – you have 7 days to dispute it. Contact us at 604-558-8778 to discuss.

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Alcohol related offences highest during holidays

December is a busy time of year for all of us. Friends and families come together, enjoy good company, food and wine…and maybe beer…and vodka… and a long drive home. It is no surprise that impaired driving rates are highest in December. In fact, there were an estimated 24,000 cars stopped at BC police check stops last Friday night alone. Inevitably, your chance of receiving an Immediate Roadside Prohibition or being charged with a driving offence is exponentially higher during the holiday season.

An Immediate Roadside Prohibition (commonly referred to as an “IRP”) is a driving prohibition issued under the British Columbia Motor Vehicle Act to drivers found to have a blood alcohol concentration of 50 milligrams per 100 millilitres of blood (50 mg% or 0.05 BAC) and above. These prohibitions begin immediately, and can vary in length from 3 days (if you blow a WARN) to 90 days (if you blow a FAIL or refuse to provide a breath sample).

If you receive a 90 day prohibition, your vehicle will also be impounded for 30 days, and you will be responsible for the costs associated with towing and storage. This is accompanied by a $500 fine, a $250.00 license reinstatement fee, and a referral to the Responsible Driver Program, which costs over $800. Another possible consequence of an IRP is a referral to the Ignition Interlock Program, which will cost you over $1000, plus maintenance fees.

What many people don’t know about Immediate Roadside Prohibitions is that you have 7 days to dispute them. If you do not respond within 7 days, your IRP will be confirmed, it will remain on your driving record, and you can look forward to paying all those fees listed above! Not exactly the type of gifts you had in mind this holiday season! It is very easy to get caught up in all the holiday madness and forget this crucial deadline.

If you or someone you know have received an Immediate Roadside Prohibition or have been charged with a driving offence, contact Filkow Law at 604-558-8778 for proper legal assistance. Filkow Law is a leading BC law firm experienced dealing with drinking and driving offences.

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British Columbia’s Drinking and Driving Laws

This is the second part of my paper on British Columbia’s Drinking and Driving laws. Part one appeared in the last issue of The Verdict (Fall 2013), Trial Lawyers Association of BC.

The Government appears to find it politically advantageous to proclaim that the IRP legislation represents the “strictest impaired driving laws around.” This claim simply isn’t true, at least as a general proposition. Those who have financial resources and don’t depend on driving for their employment are far less penalized by the IRP regime than they would be under the Criminal Code. They pay for the fines and the programs imposed, and resume driving after three months. It is lower income, rural and/or younger drivers who are more likely to be harshly affected – often for years because they cannot afford to pay for the mandatory post-prohibition programs. Those whose employment requires being able to drive may also suffer inordinately, as they lose their jobs and they and their families suffer serious corollary effects from the loss of income.
The very real and substantial penalties that often flow from the IRP regime would be acceptable if the review process were fair. But it is not. There is virtually no means of challenging the word of the officer regarding what took place at the roadside, and the lack of checks and balances in turn will almost inevitably lead to an arrogant undesirable police culture.
The cynical culture of the IRP regime should not be allowed to perpetuate. There is some hope that the constitutional challenge in Sivia will receive a more comprehensive resolution from the Court of Appeal. In the meantime, we must fight for just outcomes and a fairer regime as best we can with the resources at our disposal.

Also see the original paper The Unsettling Unfairness of the IRP Regime.

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Kevin Filkow chairs annual Criminal Law Conference for Trial Lawyers of BC

I am pleased to chair this year’s Criminal Law conference for the Trial Lawyers Association of British Columbia. I was also chairperson in 2011 and 2012. They were excellent and instructive conferences. The audience and speakers included judges, media, journalists, defense counsel and crown prosecutors.

The theme of the 2014 conference is Criminal Law at a Crossroads: New Practice Strategies. Topics that will be covered include civil forfeiture proceedings and charter violations; police-issued process and warrants; expert evidence in drug cases; bail reviews; video testimony; recanting witnesses; pre-trial credit, victim fine surcharges; mandatory minimums; bail reviews; new issues in drinking and driving laws and pardons.

This year’s conference will be held at the Vancouver Hyatt on September 19th, 2014. I look forward to it once again.

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