VANCOUVER CRIMINAL & DRIVING LAWYERS

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Filkow Law is a group of respected criminal lawyers in Vancouver, Richmond, Kelowna, Surrey, & Abbotsford, with 50+ years of collective expertise with outstanding results.

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Filkow Law is a group of leading driving lawyers in Vancouver, Richmond, Kelowna, Surrey, & Abbotsford, with 50+ years of collective expertise with exceptional results.

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Filkow Law is a highly respected and well-established law firm in British Columbia. Its lawyers are recognized for achieving outstanding results in criminal and driving cases.

Clients benefit from the lawyers’ breadth of legal expertise, their extensive connections within the legal system and the collective resources of the firm.

Client Testimonials

"I can’t thank you enough for the news Kevin delivered to me this am. Obviously I couldn’t be more pleased. “you decidedly removed the noose from the hang man’s grip that was hovering above my head for these many months. I have never felt more powerless, as well as shameful. You were both wonderful to work with. What a team! Gracious and powerful at the same time. Thank you also on behalf of my husband."

- R.D.

"Mr K Filkow is in law business since I was teenager and at 45+ yrs old I would pick him over any other criminal lawyer cause he has never let me or any of my family or friends down in 25+ years we have been closely working with his firm only as everyone knows we had very big circle of friends and he always managed to get us through our hard times on way or the other. Thank you kindly Mr Filkow for keeping us safe with your professional services."

- K.D.

I could not recommend the lawyers at Filkow Law enough! The entire team is highly professional and knowledgeable. They answered all of my questions honestly and were always quick to respond. I always knew what to expect. They were upfront and honest about their fees and they stuck to their word. As with anything, there are no guarantees, but I felt as though they worked hard for me and did everything they could to get me the best possible result. I am very satisfied with the service that I received and would not hesitate to refer my friends and family to Filkow Law for assistance.

- A.B.

Kevin and his team were amazing. They answered all my questions and made sure I knew what was happening at all times. They checked up on the kids and I and just made sure I was alright at least every month or so. In the beginning I was so nervous but after speaking with Kevin and his team, they made me feel so comfortable I just knew I was going to be taken care of. If you ever want the best go to filkow law, you won’t be disappointed...

- J.B.

I am so grateful for the effort, care, and support from the Filkow Law team. Everything I left in their hands was taken care of quickly and efficiently. Not only are they fantastic at what they do, they truly care about their clients. I cannot thank their team enough for their endless efforts, always keeping me updated, and answering all my questions thoroughly without any hesitation. I am very pleased with my outcome and the service I received. My case resolved with 100% success. Thank you Filkow Law.

- B.Y.

Where do I start FILKOW law group is unstoppable over the many years I called him he pulled right threw for me and my family I highly recommend him I promise you he will do the same for you and your family God bless him and his law firm.

- J.S.

You are a wise and seasoned professional, Kevin. I feel fortunate to have been connected with you. You know your stuff. I thank you for your excellent work and professionalism. I recommend you most highly.

- B.M.

Merry Christmas And Happy New Year Kevin, when I reflect on the last year I can't help but be reminded of the kindness and generosity you have shown to me and my family and the New start you have given to my son. It has been an absolute pleasure knowing you and knowing there are still good people in this world. Thank you again and again for helping my young man back on the path of doing what he was raised to be, not be a follower.

- D.H.

My case just finished and I wanted to thank Mr. Filkow I don't want to detail the circumstances of my case because they still make me very upset. But there were serious allegations against me which have recently been dismissed meaning the case has been dropped. Mr. Filkow was an excellent lawyer from beginning to end - he is very smart and his instincts are great. He also has a very good team - Mike and Anna were very helpful along the way and were very patient with me. So I do want to thank Mr. Filkow and his team for taking care of me and my family - it meant the world to us.

- L.P.

Amazing service with even better results. Filkow law handheld my driving case without flaw. If you get pulled over... call Filkow. One meeting and everything was taken care of for me. All I had to do was answer my phone to receive the good news. Saved me thousands of dollars and lots more. True professionals. 6 stars not 5.

- K.P.

From my first phone call with Kevin Filkow, to meeting Anthony Robinson, to calls with Anthony's assistant... Amazing! I could not have gone through the past 2 years without them. Anthony is professional and thorough making sure I was okay every step of the way. I can't thank Anthony enough for his hard work, understanding my needs and making sure I wasn't stressed unnecessarily. Thank you so much!!

- C.N.

Thank you to Mr. Kevin Filkow, Ms. Paula Cooper and Filkow law team. This was very stressful time for my family and I. We went to many law offices and we decided on Mr. Kevin Filkow as our lawyer. His plan of action and predilection for case made the decision as our lawyer. Anytime we arrived at the office he made my family and I comfortable. His work ethics, engagement and performance got me through this difficult time. Again I thank you.

- M.V.

- J.S.

When I first realized that I would be needing a lawyer to deal with my case I knew I couldn’t just trust anyone with my future, I had to find the best of the best, the top elite lawyer to take control and guide the case to the direction of victory. Ermina at Filkow Law Group was absolutely outstanding in every way, very responsive to emails and phone calls, she would answer any and all questions/concerns I had - making me feel heard, respected, and explained all the details. She worked very hard on getting my case solved to the point of no criminal record thus changing my future and life in the most positive way. Thank you to Ermina and Filkow Law they truly care and know how to get the job done, period. If you want to feel safe and secure in your case, there is no one else but Filkow to make that happen. Thanks again to Ermina, such a blessing.

- R.B.

Kevin and his team have been exceptional in their ability to help me over the years. They have shown tremendous work ethic and truly aspire to go above and beyond! Thank you Filkow Law for everything!

- R.J.

Honestly these guys worked so hard for me and I’m truly grateful for everything they have done. Really friendly firm and look out for your best interest. Kevin and Anthony are top notch!. I would recommend filkow law to anyone who is in search of the best.

- J.W.

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Recent Blogs

Jan 10, 2022

Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)

This is the third instalment of this paper, explaining how the Crown Counsel is no longer required to consult an expert witness for samples taken more than two hours after driving.

Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)

The following is an excerpt explaining that Crown experts are no longer required to calculate blood alcohol for samples taken more than two hours after driving:

Under both the old and new provisions, samples of a driver’s breath or blood are supposed to be taken within two hours of the time of driving. Under the old provisions, samples taken within two hours of the time of driving were deemed to be the driver’s BAC at the time of driving. If the samples were not taken within two hours of driving, the Crown was required to call an expert, usually in the form of a toxicologist, to calculate (read back) what the BAC was at the time of driving.

Under the new provisions, an expert is no longer required if the samples were taken after the 2-hour window. Subsection 320.31(4) of the Code provides a formula that allows a court to do its own BAC calculation back to within two hours of the time of driving. The read-back need only go as far back as to within two hours of the time of driving (as opposed to at the time of driving) because of the new definition set out in 320.14(1)(b) discussed above. Section 320.31(4) states:

For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

According to the government, the elimination rate of 5 mg/100mL for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. There is scientific consensus that alcohol leaves the bloodstream at a rate greater than 5 mg/100mL per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render a person incapable of driving). Accordingly, a BAC calculated at this rate will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window.^[1]

Practitioners should keep in mind that although samples taken after two hours of the time of driving can be calculated back to within two hours, there is still a requirement in section 320.28 that samples of breath or blood be taken “as soon as practicable” (similar to the old provisions). In deciding whether the tests were taken “as soon as practicable”, the whole chain of events must be considered bearing in mind the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement is to be applied with reason.^[2]

“As soon as practicable” is determined on a case-by-case basis and it is not an element of the offence the Crown must prove. Where the accused wishes to argue the samples were not taken as soon as practicable, the accused must challenge the Crown’s case by cross-examining the officer(s) on the various periods. (The accused cannot “lie in the weeds” as they say). Where the peace officer is unable to explain the delay, the defence can argue that the test was not administered as soon as practicable.

^[1] Department of Justice, Charter Statement: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (11 May 2017), online: <http://www.justice.gc.ca> [Department of Justice].

^[2] R v Vanderbruggen, 2006 CanLII 9039 (ONCA).

If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.

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Jan 04, 2022

Legal Blood Alcohol Limit & Timing of Blood Alcohol Reading in BC

On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the second instalment of this paper, explaining the new legal blood alcohol limit in BC, and timing of the blood alcohol reading.

Legal Blood Alcohol Limit is Now 79 mgs%

The following is an excerpt regarding a change in the legal blood alcohol limit:

Under the previous regime, it was an offence to have a blood alcohol concentration (BAC) in excess of 80mgs% (80 mgs of alcohol in 100ml of blood). It is now unlawful to have a BAC “equal to or exceeding” 80 mgs%. The new formulation was a response caused by rounding down BAC results to the nearest 10th mg%.^[1]

Time of the Blood Alcohol Reading

The following is an excerpt outlining how the scope of the offence has expanded from the time of driving to within two hours of the time of driving, and how two defences have been eliminated:

One of the most significant changes to the legislation is that a driver’s BAC no longer needs to be in excess of the legal limit at the time the driver had care and control of the conveyance. It is now an offence to be in excess of the legal limit within two hours of operating a motor vehicle. The predecessor legislation made it an offence to have a BAC in excess of the legal limit at the time of driving. This meant there had to be a temporal overlap between a BAC in excess of the legal limit and the time of driving. That overlap no longer applies.

Section 320.14(1)(b) states:

Everyone commits an offence who

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

The curious impact of this change is that the elements of the offence of being in excess of the legal BAC limit no longer has to overlap in time with the element of care and control. Without subsection (5), this amendment would allow someone to be convicted of an over .08 offence because their BAC was in excess of the legal limit within 2 hours of driving, even though their BAC was below the legal limit at the time of driving. Thankfully the definition is subject to the limitations prescribed in subsection 320.14(5) which states:

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

This new definition defeats two defences: bolus drinking; and the intervening drinking defence.

Bolus drinking refers to situations where a driver claims they consumed alcohol just before or during driving, but they were not over the legal limit at the time of driving because the alcohol was not fully absorbed in their blood until the time of testing. Because the bolus drinker did not consume alcohol after ceasing to operate the conveyance, they can not avail themselves of the exception prescribed in subsection 320.14(5)(a).

The intervening drinking defence is usually advanced when there has been a motor vehicle accident. The defence refers to situations where the driver claims they consumed alcohol after an accident such that they were over the legal limit after the accident but not at the time of driving. This defence is eliminated under the new definition by the operation of subsection 5(b), which provides that it is not an offence to be in excess of the legal limit within 2 hours of driving if the driver had a reasonable expectation they would be required to provide a sample of breath or blood.

It is difficult to conceive of all the circumstances in which a driver would reasonably be expected to provide a sample of breath or blood. However, being involved in a motor accident can be one of them.

This is reflected in R v Mair, [2019] OJ No 2215. In that case, the police received a report that a vehicle drove into a tree then left the scene. The police followed a trail of radiator fluid from the scene to a driveway. When the police questioned the accused, he confessed to driving the vehicle. The accused was arrested and taken to the police detachment and provided a sample in excess of the legal limit.

The accused gave a defence of intervening drinking. He testified at trial that he consumed two pints of beer at a pub prior to the accident. After the accident, he returned home and drank 60-70% of a bottle of whiskey. The accused said he was shaken from the accident, so he drank that amount in about 25 minutes.

This case pre-dated the 2018 amendments as the offence was alleged to have occurred in 2017. However, the court commented in obiter about whether under the new provisions the accused would have had a reasonable expectation to provide a breath sample in the circumstances. The court conclude that a driver who got into an accident would have difficulty establishing they did not have a reasonable expectation to provide a sample. At para. 38 the court stated:

I would note the recent amendments to the Criminal Code which provide new specific rules governing post-driving alcohol consumption. Under the new s. 320.14(5), Mr. Mair would have been required, in order to succeed in his defence, to establish that he had no reasonable expectation that he would be required to provide a sample of his breath. Given the fact that he had just been involved in an accident, Mr. Mair would have considerable difficulty establishing that. He would also have had to provide toxicological evidence to establish a BAC consistent with post-driving consumption.

Similarly, in Madadi-Farsijani, 2021 ONCJ 196 the accused put forward a defence of intervening drinking. The accused drank one beer with a friend then drove home. On the way home, the accused rear-ended a vehicle. He testified the collision caused him to have a flashback to a prior traumatic driving experience in Iran. Upset by the flashback, the accused grabbed one of the bottles of whiskey he purchased earlier in the day and drank about 10 ounces prior to exiting the vehicle. He left the opened bottle on the front passenger seat while the other unopened bottle remained on the rear floor of the vehicle.

The court concluded that an intervening drinking defence could not succeed because in the circumstances of this accident it was reasonable to expect the accused would be required to provide a sample.^[2] At paras. 28 and 29 the court stated:

Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.

^[1] Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, p 23.

^[2] In Madadi-Farsijani, the accused also filed a constitutional challenge to the Over .08 provision on the basis the section violates ss. 7 and 11(d) of the Charter. The court deferred dealing with the constitutional challenge until it determined the accused’s guilt under the existing provisions. To date, the Charter application has yet to be heard. In R v Kaur, 2020 ONCJ 538 the accused filed a Charter application regarding ss. 320.14(1)(b) and 320.31(1). Due to a scheduling conflict, the Charter challenge was deferred to the end of trial. The challenge has yet to be heard.

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Dec 23, 2021

Changes to Drinking and Driving Legislation

On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the first instalment of this paper, explaining the changes to drinking and driving legislation in BC.

Changes to Drinking and Driving Legislation

The following is an excerpt regarding two major changes to the language in the Criminal Code–“motor vehicle, vessel, an aircraft or railway equipment” is now “conveyance” and “forthwith” is now “immediately”:

The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.

Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts where possible. As one example, in section 320.27 which, allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.

Alcohol Screening Provisions s. 320.27(2)

The following is an excerpt regarding the new police power to make roadside breath demands without reasonable suspicion of alcohol in the driver’s body. Mr. Robinson also explains issues with regards to the possession of the screening device and the timing of the test:

Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator. The second step provides for a breathalyser test into an Approved Instrument at a police station.

The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).

However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening” s. 320.27(2) states:

320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603 the Ontario Court of Justice found s. 320.27(2) violates sections 8 and 9 of the Charter but those violations are saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10 the Saskatchewan Provincial Court found s. 320.27(2) does not violate s. 9, but it does violate s. 8, and that violation is saved by s. 1.

There are three requirements for a valid demand under s. 320.27(2).

The demand must be made in the course of the lawful exercise of police powers;
The demand must be made by a peace officer who has an ASD in their possession.
The demand must be made, and the test must be administered – immediately.

With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons like checking for driver’s licenses, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional.^[1] Under s. 320.27(2) the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief the driver has consumed alcohol.

With respect to the requirement that the officer has the ASD in their possession,

in R v Bath, 2021 CanLII 35120 the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:

As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.

The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a license suspension under the Alberta Traffic Safety Act.

The demand was invalid. The Board found the immediacy requirement under section 370.27(2) requires that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:

In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.

The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.

The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.

In summary, an officer does not need to physically possess the ASD at the time of the demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.^[2]

^[1] See R v Dedman, [1985] 2 SCR 2, R v Hufsky, [1988] 1 SCR 621 and R v Ladouceur, [1990] 1 SCR 1257.

^[2] Bender (Re), 2019 ABTSB 1752.

If you need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.