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

December 2019

Personal Injury Lawyer

Filkow Law Welcomes New Criminal Defence Lawyer

Filkow Law welcomes criminal defence lawyer Paula Cooper to our legal team. Paula was called to the bar in 2019 after completing her articles at a Surrey criminal defence firm. She primarily practices in the area of criminal law and driving offences.

In 2017, Paula received her law degree from the University of Alberta. While in law school, she competed in the Laskin Moot Court competition and volunteered with Student Legal Services in Edmonton.

Prior to law school, Paula earned a Bachelor of Arts degree in criminology at Simon Fraser University in 2014, and an Associate of Arts degree in creative writing from Douglas College in 2011.

In her spare time, Paula volunteers with various community theatre organizations around the Lower Mainland.

If you are charged with a criminal offence, call Paula at Filkow Law to assist you.

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Personal Injury Lawyer

Filkow Law Welcomes New Articled Student Michael Scott

Filkow Law welcomes articled student Michael Scott to our legal team. Michael is finishing his articling year at Filkow Law and will be called to the bar in 2019. Michael has a strong background in civil litigation, and is familiar with civil procedure in both the Provincial and Supreme Courts of British Columbia.

At Filkow Law, Michael assists on various files including traffic tickets, driving offences, ICBC issues, and criminal matters. Michael is focused on resolving client issues favourably, practically, and expeditiously.

Michael obtained a Bachelor of Arts in Political Science from the University of British Columbia, while being active in several student leadership organizations. Michael pursued his law degree at Thompson Rivers University in Kamloops.

In his spare time, Michael plays goalkeeper in recreational soccer leagues. He also enjoys playing rhythm guitar, bass guitar and backup vocals for his band from law school.
If you have a legal matter, call Michael at Filkow Law to assist you.

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Criminal Trial Judge

The Impact of the Conduct of a Judge on a Trial

The Ontario Court of Appeal recently criticized a trial judge for his conduct throughout a trial involving the death and alleged murder of a longboarder, Ralph Bisonnette, by a taxi driver, Adib Ibrahim. This post will examine what the trial judge did that drew criticism. While the judge’s behaviour did not directly result in a new trial it opens up an interesting discussion on the proper conduct of a judge during the course of any trial at all, let alone a stressful murder trial. This post will also examine an appeal on the grounds of a reasonable apprehension of bias.

The Mistrial Application

On the 14th day of the trial, defence counsel made an application for a mistrial based on a number of different actions performed by the judge throughout the course of the trial. Defence counsel argued that the trial judge’s conduct demonstrated a reasonable apprehension of bias against Mr. Ibrahim.

The test in Canada for establishing a reasonable apprehension of bias is whether “a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly”. In other words, would a reasonable person think the judge could decide fairly?

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Immediate Roadside Prohibition

Immediate Roadside Prohibitions (IRP) Explained

The Motor Vehicle Act sets out a legislative scheme by which motorists can have their licenses suspended.

This post sets out the specific provisions of the IRP legislation, explains how the scheme works, and why the IRP regime is often used in lieu of criminal charges in British Columbia.  To fully understand why the IRP regime has displaced criminal proceedings, it is also necessary to understand the British Columbia Crown Counsel Policy that was brought into force at the same time as the IRP regime was implemented in 2010.

Why IRPs are Issued in Lieu of Criminal Charges

At the same time as the IRP regime came into effect, the BC Crown Counsel Office passed a policy that very significantly reduced the number of cases that would be approved for criminal prosecution in British Columbia.  The policy recognizes the significant consequences imposed by the IRP regime on a driver who blows a “fail” or who fails or refuses without reasonable excuse to provide a breath sample into an Approved Screening Device.  Those consequences are discussed in detail below.  In recognition of these penalties, the policy provides that where a driver has been subjected to an IRP and related consequences, a prosecution for an impaired driving offence is generally not in the public interest unless aggravating circumstances apply.  Those aggravating factors are set out in the policy and include:

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Voyeurisum

Voyeurism in the Classroom: Is there a Reasonable Expectation of Privacy?

Voyeurism was added to the Criminal Code in 2005 as a new criminal offence, under s.162(1). The offence is committed when an individual secretly observes or records another person under circumstances where that person had a reasonable expectation of privacy. The individual being recorded must also be in a location where they can reasonably be expected to be nude, they are nude, or the recording is for a sexual purpose.

The Jarvis Case

Ryan Jarvis was a high school English teacher charged with voyeurism in 2011. He used a camera concealed within a pen to record the upper bodies, breasts, and faces of female students in classrooms and hallways of their Ontario school. These students were not aware that their teacher recorded them, and they did not consent to being recorded in this way.

Mr. Jarvis admitted to surreptitiously recording female students but argued that they had no reasonable expectation of privacy within the school. He also submitted that the recordings were not for a sexual purpose. The trial judge found that the students did have a reasonable expectation of privacy, but Mr. Jarvis was acquitted because the trial judge was not satisfied beyond a reasonable doubt that the recordings were made for a sexual purpose. The judge thought the recordings were likely made for a sexual purpose, but he could not rule out that there were other possible purposes that could be inferred.

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Facebook Internet Child Luring

Internet Child Luring Charges -R vs Mills

Internet child luring under section 172.1 of the Criminal Code is the act of an adult communicating with someone online that they believe is under the age of eighteen. These communications result in the adult attempting to meet with the supposed child offline, for a sexual purpose.

This child charge comes with severe penalties. A conviction for internet child luring includes a requirement for the convicted person to register as a sexual offender for the rest of their life. Additionally, child luring charges have a mandatory minimum sentence of six months in jail. The maximum sentence that can be imposed is 14 years’ incarceration.

Police have many tactics to find those who attempt to lure children. One such technique is to pose as a child on social media platforms and communicate with the adults who contact them. When the adult attempts to meet with the supposed child offline, the police arrest the adult ‘in the act.’

Recently, questions were raised in R v Mills 2019 SCC 22 about whether the online communications between an adult and the supposed child could be presented in court without prior judicial authorization.

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Pre-Trial Custody is the Exception

Section 11(e) of the Canadian Charter of Rights and Freedoms confers the right not to be denied reasonable bail without just cause. As such, the detention of accused individuals is intended to be the exception, while pre-trial release is the rule. Additionally, the presumption of innocence enshrined in section 11(d) of the Charter provides that one’s liberty should not be taken away prior to conviction, unless justified under section 515(10) of the Criminal Code. Therefore, release with the least onerous conditions is generally favoured over pre-trial detention.

Section 525 of the Criminal Code requires a judicial review of an accused’s detention if the trial has not begun within 90 days. The purpose of this section is to avoid accused persons languishing in pre-trial custody for extended periods of time while awaiting their trial.

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