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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?

In support of their application, defence had prepared a number of points illustrating the poor conduct of the trial judge that they argued thereby established a reasonable apprehension of bias:

  • The trial judge complained three times about the defence not having a disclosure obligation;
  • The trial judge required defence counsel to vet his cross-examination of witnesses ahead of time with the Crown and the court;
  • The trial judge accused defence counsel of “trial by ambush” and expressed disappointment in the conduct of defence counsel;
  • The trial judge interfered with the cross-examination of a Crown witness;
  • The trial judge continually shook his head with disapproval in front of the jury while defence counsel questioned witnesses;
  • The trial judge suggested, in the presence of the jury, that defence counsel was wasting time by cross-examining witnesses on videotaped statements, rather than from prepared transcripts;
  • The trial judge interfered with the examination of witnesses on a voir dire;
  • The trial judge accused defence counsel of attempting to engender the sympathy of the jury through inadmissible evidence;
  • The trial judge yelled at defence counsel on numerous occasions;
  • The trial judge glared at defence counsel, both in front of and in the absence of the jury; and
  • The trial judge constantly interrupted defence counsel during submissions.

In sum, the trial judge was yelling, glaring, interrupting, and otherwise interfering with defence counsel. These allegations were supported by affidavits from defence counsel and employee of defence counsel’s law firm.

After hearing some of the oral submissions on his alleged misbehaviour, the trial judge interjected and stated that he disagreed with virtually all of defence counsel’s points. The Court of Appeal noted that the trial judge frequently made lengthy comments during defence counsel’s submissions, while Crown was permitted to make their submissions without interruption.

Not only did the trial judge deny defence counsel’s allegations, stating “I categorically do not accept that I have yelled at you… [my] normal voice is a very loud and deep voice”, but he also accused defence counsel of “an ethical breach” and of professional misconduct and sharp practice contrary to the Canadian Bar Association’s Code of Professional Conduct.

In the end, the trial judge dismissed the application for a mistrial. The Court of Appeal noted that the trial judge’s written reasons for refusing defence counsel’s mistrial application were remarkably long: 64 single-spaced pages with 49 footnotes. The Court also noted that, throughout his reasons, the trial judge’s displeasure towards defence counsel was “palpable” and even insulting at times.

The Appeal

While the Ontario Court of Appeal ultimately allowed a new appeal on the ground of improper instructions to the jury and dismissed the appeal on reasonable apprehension of bias, they provided substantial commentary on the issue of bias. In particular, they stated that they were concerned with how the mistrial application was handled

The Court of Appeal noted the following:

  • The mistrial application was conducted in an “injudicious manner”;
  • When a trial judge feels compelled to intervene they should consider courtesy and restraint;
  • Allegations regarding a trial judge’s verbal and non-verbal conduct during a trial are serious;
  • The duty of the trial judge to maintain composure during the course of a trial is important;
  • The trial judge’s conduct was not a model of “judicial decorum”;
  • The trial judge is responsible for reducing the stress of conflict;
  • The trial judge should not to exacerbate conflict through harsh words, a raised voice, or distracting and hostile non-verbal communications.

However, despite these criticisms, the court did not believe that there was a significant impact to the overall fairness of the trial and that these issues, while improper, did not give rise to a reasonable apprehension of bias.

Conclusion

The decision in this case shows that some tensions and emotions can run high during a criminal trial and result in some conflict between defence counsel and the trial judge. While a trial judge has a duty to exercise courtesy and restraint, a substantial amount of discretion is given to the trial judge on how to conduct a trial. The Court of Appeal clearly sent a message to trial judges by criticizing the conduct of the trial judge in this case, but in the end they would not have concluded that his behaviour gave rise to a reasonable apprehension of bias. Although reasonable apprehension of bias is a possible ground of appeal, it is clear from this decision that the bar for establishing bias based on the conduct of a judge can be quite high.

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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:

  • bodily harm or death; a prior conviction for an impaired driving offence;
  • an allegation that other Criminal Code offences were committed during the same event, including driving while prohibited; 
  • evidence of significant impairment; any other relevant aggravating factor related to impaired driving enumerated in the Criminal Code;
  • a prior IRP or Administrative Driving Prohibition under section 94.1 of the MVA; and
  • any other aggravating factor relevant to the public interest.

Explanation of the IRP Regime

The IRP scheme runs from section 215.41 to section 215.51 of the MVA.

The IRP provisions originally came into force on September 20, 2010.  Under the regime, a motorist is subject to an automatic and immediate prohibition when a police officer forms the reasonable belief that the motorist’s ability to drive is affected by alcohol, as evidenced by an analysis of breath by means of an “approved screening device” that registers a “warn” (which is defined as over 50 mg of alcohol in 100 ml of blood – 0.05 or over) or “fail” (which is defined as over 80 mg of alcohol in 100 ml of blood – 0.08 or over).  The same result ensues where a motorist fails or refuses without a reasonable excuse to comply with a demand to provide a breath sample for analysis. 

The Approved Screening Device currently in use by police agencies in British Columbia is the Alco Sensor FST.

The length of the prohibition differs depending upon whether the driver registers a “warn” or a “fail”.  A “warn” results in a prohibition of 3, 7 or 30 days depending on whether it is a first, second or subsequent “warn” within 5 years. A “fail” reading leads to a 90-day suspension and a $500 fine.  A 90-day suspension and $500 fine is also imposed on a driver who refuses or fails without a reasonable excuse to comply with an Approved Screening Device demand. These prohibitions are issued at the roadside by the peace officer who provides the driver with two documents: A Notice of Driving Prohibition and a Notice of Vehicle Impoundment.  The vehicle is towed from the scene and impounded.  Those who blow a “fail”, or refuse or fail to blow without a reasonable excuse are saddled with the following mandatory penalties and attendant costs in addition to the 90-day prohibition:

  • a 30-day mandatory vehicle impoundment;
  • the cost of vehicle towing and storage during impoundment which is about $800;
  • a $500 fine;
  • a $250 license reinstatement fee;

In addition to these mandatory penalties, there are two additional discretionary penalties a driver could face at the behest of the Superintendent of Motor Vehicles:

  • Enrollment in the Responsible Driver Program which costs just under $1000; and
  • Installation of an ignition interlock device upon resuming driving, for a period of 1-year, which costs about $2000 per vehicle.

The Superintendent of Motor Vehicles will usually require a driver who receives a 90-day IRP for the first time to enroll in the Responsible Driver Program but will not require the person to install the ignition interlock device unless there are other alcohol related infractions on their driving record. 

Grounds for an Approved Screening Device Demand

The MVA has no mechanism by which breath samples can be obtained. The legislation depends for that on the Criminal Code (see sections 215.41(3.1) and (4) of the MVA). Prior to December 18, 2018 an officer who made a demand for a sample of breath into an Approved Screening Device was required to have a reasonable suspicion that the driver had alcohol in their body.  This is a relatively low threshold and was normally (although not exclusively) established through a smell of alcohol on the motorist’s breath, an admission of consumption, or both.  However, on December 18, 2018 new Criminal Code impaired driving laws came into force which allow peace officers to randomly test motorists using an Approved Screening Device as long as they have the Device in their possession.  This means that an officer is no longer required to have a suspicion that a motorist has alcohol in their body before making an Approved Screening Device demand as long as the Device is in the officer’s possession. 

After serving the driver with the Notice of Driving Prohibition and the Notice of Vehicle Impoundment, the officer is required to complete a Report to Superintendent and send it to the Superintendent within 7 days of the incident (see section 215.47(d) of the MVA).  The Report to Superintendent must be sworn or solemnly affirmed by the officer.  If the Superintendent does not receive the officer’s sworn or solemnly affirmed Report to Superintendent within 7 days of the incident, then the IRP must be revoked, the vehicle released from impound and the motorists driving privileges must be reinstated. 

Disputing an IRP

A person who wishes to dispute an IRP must do so within 7 days of service of the Notice of Prohibition.  There is no legislative authority to extend this period.  Once the motorist disputes the prohibition, they will receive the officer’s Report to Superintendent which details the specifics of the case, (assuming the officer has sent his Report to the Superintendent). 

The legislation sets out 2 grounds upon which a person can challenge an IRP when it is served on the basis for a refusal or failure to provide a sample:

  1. the person was not the driver (which by definition includes being in care and control of a motor vehicle), or
  2. the person did not fail or refuse without reasonable excuse to comply with the demand. 

As in criminal proceedings, the validity of the demand is an important consideration in determining if the person failed or refused without reasonable excuse to comply with the demand. A motorist is not required to comply with an invalid demand. Recall that the MVA has no mechanism by which breath samples can be obtained. The legislation depends for that on the Criminal Code.  The Criminal Code requires that the breath demand and sample be made immediately upon the officer forming his suspicion that the driver had alcohol in their body.  Therefore, as in criminal proceedings, a sufficient delay between the officer forming his suspicion and administering the test can be a basis upon which to challenge the validity of the officer’s demand.  This is just one example of a possibly invalid demand.

If you have been charged with an IRP, contact us immediately. We have extensive experience dealing with IRPs and can offer you invaluable assistance.

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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.

The Court of Appeal upheld Mr. Jarvis’ acquittal, but reversed their reasons from that of the trial judge. They found Mr. Jarvis had recorded the students for a sexual purpose and no other purpose was suggested by Mr. Jarvis’ defence at trial. However, they found that the students were not in circumstances that gave rise to a reasonable expectation of privacy as they were in a public place with security cameras recording them. One judge at the Court of Appeal dissented. Huscroft JA would have entered a conviction on the basis that all elements of the offence were proven.

The Court of Appeal dissent allowed Crown to appeal the decision once more, to the Supreme Court of Canada in R v Jarvis 2019 SCC 10. The central issue at the Supreme Court of Canada was whether the circumstances gave rise to the students’ reasonable expectation of privacy to not be observed or recorded in a manner that falls under the criminal voyeurism charge.

What are the Circumstances that Give Rise to a Reasonable Expectation of Privacy?

Mr. Jarvis’ counsel submitted that the circumstances that give rise to a reasonable expectation of privacy should be the circumstances in which a person has a reasonable expectation that they will not be observed by others. They made no distinction between observations and recordings and did not include other factors in their privacy analysis.

Crown, by contrast, submitted that there should be a broader understanding of the reasonable expectation of privacy. This would require a contextual, fact-based analysis that considered more than just the private nature of the location where the observation or recording took place.

Chief Justice Wagner found the Crown submissions more compelling. He defined the circumstances that give rise to a reasonable expectation of privacy in a criminal voyeurism case as “circumstances in which a person would reasonably expect not to be the subject of the type of observation or recording that in fact occurred.” Therefore, an individual’s reasonable expectation of privacy in a voyeurism case is very fact-dependent.

This definition does not create an all-or-nothing conceptualization of privacy, nor does it remove all reasonable expectations of privacy when an individual is in a public or semi-public space. Instead, a variety of factors may be considered to determine whether someone would have a reasonable expectation of privacy with respect to the type of recording or observation that they were subject to. These factors include the location, subject matter, and manner of observation or recording, as well as the relationship between the parties and whether there are formal rules or policies that contribute to the level of expected privacy.

Wagner CJ provided multiple examples that showed why an individual would not immediately lose all expectations of privacy once they leave the confines of their shuttered home. For example, people have an expectation that others in a communal changing room may observe them in various stages of undress, but not that someone would have a hidden camera recording them in that change room. Additionally, someone on a public bus would expect to be observed or recorded in the background of someone’s image, yet they would retain their expectation of privacy from upskirt photos, or other revealing and sexual images.

Classroom Expectations of Privacy

Wagner CJ found that the students were recorded in circumstances that gave rise to a reasonable expectation of privacy. Although the school did have security cameras that recorded them daily, these cameras were very different than the hidden camera technology used in Mr. Jarvis’ pen. This pen was pinpointed to record female students and their cleavage without their knowledge. While students may understand that they could be recorded from a distance for security purposes, there is no reason for them to expect the images to be intrusive or for teachers to have access to such recordings.

Mr. Jarvis also held a position of trust as a teacher in a high school. His responsibility toward his students provided an additional expectation that he would not breach their privacy and subject them to such recordings. Additionally, a formal school board policy prohibited teachers from making any recordings of students. Wagner CJ found that this policy was relevant in showing what the formal rules and informal norms are in a school environment.

Three justices dissented from the Wagner CJ’s majority in how the circumstances giving rise to a reasonable expectation of privacy should be defined. Rowe J would have limited the multi-factored analysis to those that define the offence. Factors such as the relationship between the parties should only be relevant for sentencing.

Rowe J went on to say that “sexual offences are designed to protect the personal autonomy and sexual integrity of the individual.” As such, Rowe J would have created a two-step test to determine whether the circumstances gave rise to a reasonable expectation of privacy:

  1. Did the surreptitious observation or recording diminish the subject’s ability to maintain control over their image?
  2. And if so, did this type of observation or recording infringe the sexual integrity of the subject?

If these two questions were answered in the affirmative, then the subject had a reasonable expectation of privacy from such observation or recording.

The Supreme Court of Canada unanimously concluded that the female students had a reasonable expectation of privacy from Mr. Jarvis’ surreptitious recordings. There was no question whether the recordings were made for a sexual purpose at this Court. Mr. Jarvis was convicted of voyeurism and the Court remitted his sentencing back to the trial courts.

Do you have a voyeurism charge? We have experience and can help. Contact us today.

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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.

Mills’ Child Luring Case Experience

Mills was arrested for internet child luring in 2012 after communicating with what he thought was a 14-year-old girl named Leann. They messaged on Facebook for two months until he arranged to meet with her in person. Their conversations included sexually suggestive messages and explicit photos that indicated Mills had a sexual intention.

But that 14-year-old girl was actually a police officer. The officer screen-captured all of the messages between Mills and the officer’s fictional alias, Leann, for the investigation. Those messages would prove pivotal to the prosecution. If those messages were admissible in Court, then they likely proved that Mills had a sexual purpose in wanting to meet.

Section 8 of the Canadian Charter of Rights and Freedoms provides a right against unreasonable search and seizure. Mills argued there was a reasonable expectation of privacy to his private communications and that expectation of privacy was breached without a judicially-authorized warrant, which was not obtained in this police sting.

At trial, the Facebook messages were deemed “private communications” that were intercepted by the police without a warrant. The use of a screen-capture software to capture a record of the communications was an additional seizure of the communications that also required authorization. The trial Court found that the use of a username and password on Facebook indicated that Mills had an expectation of privacy in his communications, albeit limited by the officer’s alias. However, the Court exercised its discretion to admit the evidence despite the breach of Mills’ section 8 Charter rights and Mills was convicted.

The Court of Appeal upheld Mills’ conviction but found there had been no interception of the messages. The Court of Appeal found that the police were a party to the conversation and no judicial authorization was required if there was no interception. They also said Mills gave up any expectation of confidentiality when he voluntarily sent the messages to a stranger. Therefore, section 8 of the Charter was not infringed.

No Reasonable Expectation of Privacy in Online Communications

The Supreme Court unanimously upheld Mills’ conviction for child luring but there were substantial differences on their approaches to the privacy issue. Although the Justices differed in how they approached the issue of privacy and online communications, they all agreed that the conversations should be admitted in this case.

The majority decision of Justices Brown, Abella, and Gascon found that although Mills may have expected privacy in his conversations with Leann, it is unreasonable for adults to expect privacy in their online communications with children that they do not know. Online communication adds unpredictability, not privacy.

The Court noted there is a difference between conversations of adults and children who are familiar with each other, such as family, friends, professionals, and religious advisors, and those who are strangers such as in the case of Mills and Leann. This decision allows police agencies to continue their undercover sting operations to attract child lurers with fake profiles of children. The police are aware from the outset that the fictional child is a stranger to the adult and no reasonable expectation of privacy protects their conversations. No judicial authorization is required as there is no potential for a privacy breach.

Justices Karakatsanis and Wagner held there was no privacy breach for different reasons. They found there can be no reasonable expectation of privacy from the intended recipient of a message, even if that intended recipient is not who the sender expected they were. The sender cannot know if the stranger they communicate with is who they portray themselves as, due to the anonymity of the Internet. Additionally, the screen capture of the conversations was seen as a mere copy of the pre-existing written record and not subject to a prior judicial authorization.

Justice Moldaver agreed with both the majority decision of Brown, and Karakatsanis’ concurring reasons that there was no reasonable expectation of privacy. However, Justice Martin found the screen-capture of previously sent messages was a breach of Mills’ section 8 privacy rights. However, she would still have admitted the evidence despite the breach, as the breach did not bring the administration of justice into disrepute.

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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.

There are sound reasons for this. It is more difficult for accused individuals held in pre-trial custody to access legal advice and effectively instruct their counsel. Section 525 provides the opportunity to have a judge reconsider whether the continued detention of an accused person is justified when a trial is not held within 90 days. It is a safeguard that protects an accused’s liberty and is consistent with the presumption of innocence enshrined in section 11(e) of the Charter.

However, until recently, there were two competing lines of authority in British Columbia about how to interpret section 525 detention review hearings. One line of authority ruled that section 525 required a two-step process. The first step required the accused to establish unreasonable Crown delay in bringing the case to trial. If established, the accused then had the burden to show a material change in circumstances under the normal section 515(10) bail provision of the Criminal Code. The other line of authority favoured a one-step process that did not place an onus on the accused to prove unreasonable delay prior to their bail review under section 525. Guidance was needed to determine which of these two competing lines of authority were correct.

Corey Myers’ Experience

On March 28, 2019 the Supreme Court of Canada handed down a unanimous decision of nine Justices in R v. Myers 2019 SCC 18 that effects accused persons in pre-trial custody. The Court unanimously ruled that an accused does not need to establish unreasonable delay in bringing him to trial in order to justify his release under section 525 of the Code. In other words, the Court ruled that section 525 is a one-step, and not a two-step, process.

Corey Myers was arrested and charged with multiple firearm offences in January of 2016. He first sought bail after completing a prior sentence in November 2016, but his application was dismissed as the suggested terms of his bail did not sufficiently address the risk that Myers might commit further offences.

In March 2017, the Crown began a review hearing under section 525 as the 90-day detention period had expired. The British Columbia Supreme Court determined that the test for a section 525 hearing was a two-step process. This provided no recourse for Myers to challenge his detention order as there had been no unreasonable delay in bringing him to trial.

In January 2018, Myers pled guilty to reduced charges and was sentenced to 30 months in prison. However, Myers appealed the British Columbia Supreme Court’s decision that a section 525 bail review hearing required him to show there was unreasonable delay in getting him to trial before he could successfully get bail under that section. Although the appeal was moot since Myers was no longer in pre-trial custody, the Supreme Court of Canada exercised its discretion to hear the appeal anyway.

The New Approach

In Myers, the Court unanimously set forth a new procedure for detention review hearings. The Court ruled that section 525 is an automatic provision laying mandatory obligations on the jailer and judge. Now, the jailer must apply for the hearing immediately after the 90-day period has expired and a judge must set a date and give notice of the hearing to the accused. The accused is not required to prove unreasonable delay in getting to trial to get such a review.

The Court found that Parliament created section 525 to allow a judicial assessment of whether the continued detention of the accused is justified under section 515(10) of the Criminal Code. That section sets out three possible grounds to justify the detention of an accused: where it is necessary to ensure the accused attends court; where it is necessary to protect the safety of the public; and where it is necessary to maintain public confidence in the administration of justice. The Court found that the right to a section 525 review is automatically triggered after 90 days. The Court further ruled that there is no additional requirement to also prove unreasonable delay in getting to trial beyond 90 days in order to succeed and be released from custody.

The judge in a detention review hearing may consider new evidence, changes in the accused’s circumstances, unreasonable delay, and the rationale for the original detention order, in addition to the evidence and submissions in prior bail hearings. Finally, the judge has the discretion under sections 525(9) and 526 to expedite the trial of a detained accused, giving consideration to the risk of unconstitutional delay.

The Myers decision represents a significant change in the law and process surrounding pre-trial detention which will no doubt impact the number of accused persons who seek their release from custody after an initial detention order.

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guilty plea

Can I Change My Mind After I Have Pleaded Guilty?

Many people charged with criminal offences decide to plead guilty for a variety of reasons. The Crown may have offered them a lighter sentence if they plead guilty; they might have wanted to spare their loved ones from having to testify; they may not have been able to afford a lawyer or qualified for legal aid and therefore not felt they were in a position to have a trial; or most commonly, they may have simply been guilty and wanted to take responsibility. However, often after a guilty plea is entered in court, there is some delay (of weeks or even months), before the person is sentenced. It is during that delay between guilty plea and sentencing that an accused will often second guess their decision.

This blog is for those individuals wondering: is it too late to change my plea?

If you are one of those people, you will recall when you entered your guilty plea, your lawyer and/or the court would have asked you the following questions:

  1. Do you understand the charges against you? You would have answered, “Yes.”
  2. Do you understand that by pleading guilty, you are waiving your right to a trial? You would have answered, “Yes.”
  3. Is anybody forcing you to plead guilty? You would have answered “No.”
  4. Do you understand that regardless of the sentence being recommended by Crown and/or defence, it will ultimately be up to the judge what sentence you receive? You would have answered, “Yes.”

By going through those questions with you, your lawyer and/or the court were making sure that your guilty plea was voluntary, informed, and unequivocal. If the court had any concerns about your plea being pressured, uninformed, or fickle, you would not have been permitted to plead guilty.

So, what if you change your mind? In order to successfully apply to withdraw your guilty plea, you must prove to the court that your plea was either involuntary, uninformed, or equivocal. In my 5 short years of practice, I have seen each of those three arguments be successful. And there is new law as of 2018 which is binding on all courts which tends to lower the bar. So, while a guilty plea is supposed to be final, and you have no doubt been warned many times that you cannot change your mind once the plea is in, that isn’t exactly true in practice.

1.  The Plea Was Not Voluntary

I was involved in a Manitoba Queen’s Bench case where this argument was made on an application to withdraw a guilty plea to 2nd degree murder. The applicant in that case took the stand and testified that he was threatened by rival gang members while in custody, and forced to plead guilty under the threat of violence. The court accepted his evidence and allowed him to withdraw the plea. He proceeded to a trial.

2.  The Plea Was Not Informed

I am currently involved in a BC Provincial Court case where we are making this argument. My client entered a guilty plea to sexual interference and the sentencing was put over several months. Several witnesses came forward between the time of the plea and the sentencing and provided new statements to police including new information. My client will be testifying to the court that had she had all the evidence to consider before she entered her plea, she would have proceeded to trial. The new case law in this area supports our position.

3.   The Plea Was Equivocal

This argument is appropriate in a case where you can point to the court record to show that when you entered your guilty plea, you did not fully commit to being guilty of the charges. There is recent BC case law considering this argument in which the applicant was successful in withdrawing his guilty plea because he explained that he was suffering from depression and suicidal ideations when he entered his guilty plea, and that when you read the transcript, it was clear that he was not fully committing to being guilty but was conveying a tone of having given up on fighting. His plea was found to have been equivocal.

You will notice that in none of these scenarios was the accused asserting they were not guilty. You do not have to be innocent in order to apply to withdraw your plea. You may in fact be totally guilty of the charges laid. That is not the point. The point is that you have the right to understand the case against you, make full answer and defence, and determine whether or not the Crown can prove their case before you commit to a plea. You have these rights regardless of your guilt or innocence.

In most cases, you will have to find a new lawyer to assist you with any of these three applications to withdraw your plea. The reason is that the court will want to question your lawyer about whether your lawyer believed, based on your discussions with him or her about the plea, that your plea was voluntary, informed, and unequivocal. In fact, you may have a basis to withdraw your plea if your lawyer did not adequately assist you in the process. For example, if your lawyer pressured you into pleading guilty, your plea might be involuntary. Or, if your lawyer did not tell you about important evidence or consequences in your case, your plea may have been uninformed.

Accordingly, the short answer is no; it is not necessarily too late. While you are not allowed to simply “change your mind,” your guilty plea may fall into one of the three categories described. Skillful counsel will be able to assess your situation and help you understand your rights regarding your plea. With extensive experience dealing with these types of applications, our lawyers are happy to assist. If you have entered a guilty plea but are having second thoughts as your sentencing date approaches, do not hesitate to give us a call.

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Fentanyl Sentencing

Sentencing for Fentanyl Charges in BC

These days in BC and the lower mainland in particular, the “opioid crisis” is no secret. I don’t believe anyone would disagree that we as a society are in the throes of an unprecedented health crisis.

Fentanyl was synthesized in 1960. It is 50-100 times more potent than morphine but considered significantly safer due to the decreased risk of respiratory depression in patients. Therefore, it quickly became the preferred anesthetic for cardiac surgery. When it began being available by prescription to treat pain, people of course began abusing it.

Fentanyl was much cheaper than heroin so dealers often cut heroin or other drugs with small amounts of fentanyl. The unintentional fatalities by overdose where fentanyl was detected date back to the early 2000s, however, the problem skyrocketed in Canada beginning in about 2014-2015. People are not just unwittingly consuming drugs laced with fentanyl now; it has become a drug of choice and a profitable commodity along with its much more potent analogues.

In 2013-2014, fentanyl overdoses began claiming lives at staggering rates, and those rates have steadily increased. In 2017, over 600 people in BC died from fentanyl-related overdoses, and 84% of all drug overdose deaths in BC included fentanyl or its analogues. In Canada, opioid related deaths increased by 34% between 2016 and 2017. The rate for non-opioid related overdose deaths however, remains stable, with no significant increase, which has been interpreted (I think naively) by the authorities to mean this is a problem with a specific drug rather than with addiction. Public awareness of the dangers of fentanyl followed shortly thereafter, and the criminal justice system responded accordingly.

In March of 2017, the BC Court of Appeal in R. v. Smith increased the sentencing range for first time, street-level fentanyl traffickers to 18-36 months, making sentencing 3-6 times harsher for fentanyl than for other Schedule I substances.

Smith is the leading case for street-level fentanyl dealers. For higher-street-level to mid-level traffickers, sentences in the range of 2 years less a day to 8 years have been recently been handed down. For higher-mid-level to “king pin” type fentanyl dealers, recent sentences in the range of 8 – 16 years have been given.

To put this into context for a moment, consider that in 2014, almost 1300 people in Canada were killed in car accidents caused by impaired drivers. That is well over 50% of all car accident fatalities. These numbers are comparable to recent opioid/drug overdose fatalities in BC and Canada. The BC Coroners Service estimates that 3.5 people die everyday in BC from illicit drug overdoses, while MADD estimates that 3.5 people die everyday in Canada from accidents caused by impaired drivers.

If we are sentencing offenders based on the level of risk they knowingly take on with respect to the safety of the public, then these two types of offences should yield comparable sentences. The high level of risk to the public is well-known for both impaired driving and the sale of fentanyl.

Impaired driving causing death can yield sentences in the range of 18 months to 8 years. However, simple impaired driving (NOT causing death) cases almost never result in jail or even a criminal record for a first-time offence. Yet, fentanyl trafficking NOT causing death still leads to the pen.

What we are seeing is a misguided, panicked response by the courts, who, along with the government, are under great pressure to solve a health crisis. The result is a legal landscape which is highly unfriendly to the accused.

The Crown approaches fentanyl sentencing with a lack of discretion to negotiate. They may not give an accused credit for pleading guilty. They may seek consecutive jail sentences on each charge. They base their sentencing positions on Crown policy, not on case law. They have even reserved the right to charge fentanyl dealers with manslaughter. While it hasn’t happened in BC yet, is has in Ontario and Alberta. The outcomes of those cases are not yet determined. The approach taken by the Crown can be summarized as aggressive and unsympathetic. This can and needs to be countered by defence counsel.

While the courts have increased sentences, they have also left room for certain arguments in favor of a lower sentence. These arguments range from emphasizing certain mitigating factors to relying on specific cases to seek concurrent sentences for different offences. There are also well-supported arguments to be made about the effectiveness of jail in achieving deterrence and whether deterrence actually works on drug traffickers. Charter arguments can also be made at the sentencing stage; establishing a Charter breach in the investigation can result in a reduction of sentence.

The existence of the fentanyl crisis is not a matter of debate. The solution, however, is. The response of the courts has been swift and harsh, but is still being refined. In time, the voices of reason (mental health and addictions experts) will prevail. In time, courts will be forced to rethink their approach. In time, it will become clear that harsh sentences have been given, but fentanyl hasn’t gone away and addiction hasn’t been cured. Until that time comes, as defence counsel, I will continue putting the information before the courts and advocating zealously for fair sentences for my clients. If you have are facing a fentanyl charge please contact us for assistance with your case.

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Legalese

Legal Lingo in Criminal Law

What is Legalese? – Legalese refers to “legal English” or language that is full of legal terminology, phrases, terms or academic words. It is a traditional style of legal writing, but it is often reader unfriendly. Therefore, we have set out many common terms used in Criminal Law/Courts to assist in understanding legal terminology in plain language.

If you have a legal matter and require further information, feel free to contact our office. One of our experienced criminal lawyers would be happy to assist.

1. Accusation – a claim that a person has committed a crime.

2. Accused – a person who is alleged to have committed a crime.

3. Acquittal – when the court finds the accused person not guilty of committing the alleged crime.

4. Adjournment – to reschedule a court hearing to another day.

5. Affidavit – a formal written statement made under oath.

6. Allegation – a formal accusation made against a person for alleged wrongdoing however, it is not yet proven to be true.

7. Appeal – When either the accused or Crown Counsel ask a higher court to review the decision of the lower court because they believe there was an error. In Criminal Law, an accused can appeal a conviction or sentence.

8. Arraignment – a proceeding in criminal court where the accused, informed of the charges in an information, is asked to plead guilty or not guilty to the charges against him/her.

9. Arrest Warrant – a court order giving police (or other officers) permission to arrest a person and bring them before the court.

10. Bail/Judicial Interim Release – the release of a person accused of a crime, prior to trial, under specific conditions designed to ensure that the accused attends court and faces the charges against him/her.

11. Beyond a Reasonable Doubt – the standard of proof in criminal law which has to be established before there can be a finding of guilt.

12. Complainant – (i.e. the victim) – the person who made a formal police complaint against the accused person.

13. Conviction – When the charge(s) against an accused person is proven beyond a reasonable doubt and a guilty finding is entered.

14. Criminal Code of Canada – Federal legislation (law) that governs crime and punishment in Canada.

15. Criminal Record – A record/information about a person’s involvement (if any) with the criminal justice system.

16. Crown Counsel – A lawyer employed by the Provincial or Federal government to prosecute persons accused of committing a crime under the Criminal Code or other federal or provincial law.

17. Custody – when a person is held by police at the station or is in a correctional institution (provincial or federal).

18. Disclosure – the documents provided by Crown Counsel to the accused (or his/her lawyer) relating to the evidence or circumstances of the case against the accused. The Crown must share all relevant information gathered during the investigation with the accused.

19. Disposition – (i.e. sentencing) – a hearing at which the accused has plead guilty to the charges against them and faces punishment.

20. First Appearance – the first time an accused person appears in court.

21. Guilty – when an accused person admits (i.e. pleads guilty) or is found guilty after trial to have committed the offence(s) for which s/he is charged.

22. Incarceration/Imprisonment – to be kept in custody in a correctional institution for a specified period of time after being found guilty of committing a crime.

23. Indictment – a document containing the formal list of charges for indictable offences (more serious offences under the Criminal Code).

24. Information – a formal accusation by Crown Counsel that the accused committed a crime under the Criminal Code or other federal or provincial statues.

25. Intent – refers to a person’s state of mind with which the act is done. Intent in criminal law is separated into two concepts: “specific intent” and “general intent”. Specific intent refers to a state of mind where the accused intents a certain consequence. General intent refers to the intent to do an act that the law prohibits (whether a specific consequence was intended or not).

26. Mens Rea – “guilty mind” – those without sufficient mental capability cannot be judged guilty of a crime.

27. Peace Bond – a court order (with conditions) made by a judge for the purpose of protecting a person (most often the complainant) from the accused.

28. Plea – The accused person’s statement pleading “guilty” or “not guilty” in answer to the charges.

29. Promise to Appear – A notice issued by the police and signed the accused promising to appear in court a specific time, day and place to respond to the criminal charge.

30. Sentence – the punishment ordered by the court after an accused person has been found guilty of the offence for which they are charged.

31. Stay of Proceedings – an action taken by Crown Counsel to drop the charges against the accused, ending the prosecution.

32. Summons – a formal notice issued to the accused ordering them to appear in court at a specific time and place.

33. Trial – a court proceedings where the Crown presents in case against the accused. Then trier of fact (judge or jury) determined if the accused person is guilty or not guilty of the crime they are alleged to have committed.

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