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

May 2018

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.

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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.

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