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Breach of Bail Conditions

What Happens If You Breach Bail Conditions?

Recently, the Supreme Court of Canada issued a landmark decision relating to the imposition of conditions on release (i.e., bail conditions) and breaches of those conditions.

Generally, to be convicted and found guilty of a criminal offence a person must commit a wrongful act – the actus reus – and must have the requisite guilty mind to commit that wrongful act – the mens rea. However, the law recognizes that there are two types of mens reasubjective and objective.

Subjective mens rea is where a person is responsible for committing the crime if they intended, knew, or were aware of what might happen because of their wrongful act.

Objective mens rea is where a person did not mean to do anything wrong but is nevertheless responsible for committing the wrongful act. In other words, objective mens rea looks at what an ordinary or reasonable member of society would have done in the same situation.

Prior to the decision in Zora, courts throughout Canada disagreed on the mens rea to apply to breaches of bail conditions. However, in Zora, the SCC confirmed that the mens rea to be applied for breaching a bail condition was subjective. This means that the Court, in deciding the guilt or innocence of the accused person alleged to have breached a bail condition, must look at what that person actually knew or was aware might happen as a result of committing the breach.

In addition to resolving the issue of objective versus subjective mens rea for breaches of bail conditions, the Supreme Court took the opportunity to revisit the purpose and imposition of bail conditions. For decades prosecutors would seek, and Judges would consider and often impose many conditions to an accused’s person release or bail.  The Supreme Court of Canada in Zora found this was the wrong practice and has transformed this unjust tradition.   Rather, The Supreme Court found that normally there should not be any conditions imposed on bail. There are many reasons for this including an accused’s presumption of innocence, unnecessary restrictions on a person’s liberty and the impact of pre-trial conditions on vulnerable populations.  In other words, the default form of bail for most crimes is release on an undertaking. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under section 515 of the Criminal Code. These include securing the accused ‘s attendance in court, ensuring the protection or safety of the public and maintaining confidence in the administration of justice.

The Zora case has changed things.  Bail conditions including no contact, no go, reporting, no alcohol, curfew and any other conditions must be justified and necessary. 

For more information on allegations of breaching bail conditions or for assistance in changing bail conditions, contact our office and speak with one of our experienced lawyers.

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Driving-prohibitions

What is and How Do You Get a Driving Prohibition?

RoadSafetyBC issues driving prohibitions to both new and experienced drivers who receive tickets on their driving record. In McEachern v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 195, the BC Court of Appeal confirmed that RoadSafetyBC can issue driving prohibitions if it determines your driving record is 1) unsatisfactory, and that 2) it would be in the public interest to issue a prohibition. The public interest includes deterring poor driving behaviour. RoadSafetyBC alone decides these factors and is afforded significant deference in those determinations.

Here is Why You Should Dispute Your Tickets

If you receive a ticket, you should consider disputing it for a number of reasons, not least of which is that you can be prohibited from driving for receiving even a single ticket as a new driver, or as few as 2 tickets as an experienced driver. If you pay your ticket, fail to dispute your ticket, miss your hearing, plead guilty, or are convicted of the offence, the violation will go on your record, and will be used against you by RoadSafetyBC in deciding whether to issue a prohibition. Also, an entry on a driving record is permanent.

What Happens When You Receive a Driving Prohibition?

If RoadSafetyBC decides to prohibit you, they will send you a Notice of Intent to Prohibit by mail to the address on file for you. You should make sure you that you keep your address updated with ICBC.

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ICBC Breach

It’s Much Easier To Breach Your ICBC Insurance Than You Think

Your car insurance is a contract between you and ICBC. That contract comes with a number of conditions that you should know about. Additionally, your optional insurance, such as your collision or comprehensive coverage, form separate contracts with ICBC that also contain separate conditions.

ICBC Can Deny Insurance Coverage

When you get in a motor vehicle accident, ICBC may investigate you and try to deny you insurance coverage. If you are denied coverage, then you will be liable for third-party damages. This means that you have to pay for the damage to any other cars and property and any personal injury claims. These damages are generally very large.

Also, if you are not covered, ICBC will not pay your claims. This means you will not be paid out for your vehicle nor compensated for your injuries.

If ICBC investigates and determines you have breached your conditions, then ICBC will come after you for everything they paid out in the accident. This can result in massive debt to ICBC and substantial consequences to your driver’s licence and insurance.

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Dangerous Driving

When is Excessive Speeding Dangerous Driving?

The Supreme Court of Canada has ruled that excessive speeding can amount to dangerous driving, even if the speeding is for a short period of time. 

When it comes to dangerous driving, the question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences as opposed to purely civil consequences? This is a question of degree.  We all make mistakes and do dangerous things when we drive.  We speed, sometimes excessively, and make bad decisions, like speeding up instead of slowing down when the light turns yellow. Every time we change lanes without doing a shoulder check it’s potentially dangerous to other drivers.   But not all of us are charged with or convicted of dangerous driving under the Criminal Code of Canada when we engage in these behaviours.  Normally we are issued a motor vehicle violation ticket which can be challenged in traffic court.  For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide.  Not all of our bad, or even dangerous driving behaviour, should result criminal sanctions.  However, the recent case from the Supreme Court of Canada in R v. Chung 2020 SCC 8 signals that the net of driving behaviours captured by the offence of criminal dangerous driving is indeed wider than previously believed.  

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COVID-19 domestic assault

Domestic Violence and COVID-19

Domestic violence can happen in any family at any time. Domestic violence is the physical or sexual assault, or the threat thereof, in any family relationship: spousal, intimate partner, parent or child. The full impact of COVID-19 places additional and tremendous stresses on family relationships. These stressors include health and safety concerns, isolation and containment, financial and psychological stresses and increased alcohol consumption.

Once an allegation of domestic violence is reported to the police or RCMP or other authorities (teacher, social worker, doctor etc.), it is not up to the victim or the accused or any other family member to stop the legal process.

Domestic violence cases are appropriately treated very seriously in the criminal justice system. The police have designated units and resources assigned to domestic cases. The Prosecution has teams specializing in domestic violence cases. There are different charges or criminal code provisions that may apply – Assault, Sexual Assault, Threatening, Harassment, Weapons, Breaches, and Homicide.

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COVID-19 Filkow Law Firm Availability

Filkow Law recognizes the evolving situation surrounding COVID-19. Filkow Law remains open to our clients and to assist with new legal cases, including all criminal, driving and ICBC matters.

Filkow Law will conform to the government recommendations for social distancing and we will work remotely as necessary for the benefit of our clients, staff and community. Our lawyers are available by telephone and/or by email and and/or in-person appointments can be arranged as needed.

We are pleased to assist you with your legal matters.

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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?

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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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