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Our blog is an online resource for information on the areas of criminal and driving law.

Filkow Law welcomes lawyer West Pryde to our legal team. West was called to the bar in 2021 after completing his articles with Filkow Law. He practices in various areas including criminal law, driving law administrative law, as well as civil forfeiture and ICBC insurance matters.

West received his J.D. from the Peter A. Allard School of Law in 2020. He was a clinic head at the Law Students’ Legal Advice Program, where he gave free legal advice at the Carnegie Community Centre in the Downtown Eastside of Vancouver. West was also a caseworker with UBC Innocence Project, where he worked to overturn wrongful convictions.

Prior to law school, West earned a Bachelor of Arts degree in philosophy at the University of British Columbia in 2017.

In his spare time, West enjoys producing electronic music and practicing martial arts.

If you are charged with or being investigated for a criminal or driving offence, call West Pryde at Filkow Law to assist you.

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Vancouver drug decriminalization is a heavily contested topic amongst city officials. In response to the alarming rise of overdoses in British Columbia, the municipal government of Vancouver recently submitted a request to the federal government to decriminalize the simple possession of illicit drugs within the city of Vancouver.

 

The Minister of Health’s Power to Exempt Certain Controlled Substances 

The Minister of Health has the authority, pursuant to section 56(1) of the Controlled Drugs and Substances Act, to exempt any substance if the Minister determines it is necessary for medical or scientific purposes or determines it is in the public interest. Section 56(1) was originally legislated to support the advancement of medical and scientific research. Now, the focus of the request is the public interest. If the Minister determines it is in the public interest and makes an exemption, then it would not be an offence under the CDSA to possess those exempt substances.

Related: Sentencing for Fentanyl Charges in BC

What Kinds of Drugs And How Much?

 

The proposal seeks an exemption for opioids, including heroin, fentanyl and other powder street opioids, as well as cocaine, crack cocaine and amphetamine. These are the drugs most commonly involved in the current opioid overdose crisis.

 

The following list outlines the substances proposed and the maximum amount allowed under the exemption:

  • Opioids (i.e. heroin, fentanyl, and other powder street opioids): 2 grams
  • Cocaine: 3 grams
  • Crack Cocaine: 10 rocks or 1 gram (1 rock = 0.1 grams)
  • Amphetamine: 1.5 grams

Vancouver Drug Decriminalization: How Drastic is the Change? 

 

While Vancouver is taking an initiative to prevent and mitigate the negative impacts associated with the overdose crisis, it is important to remember that decriminalization is not legalization. The proposal is limited to simple possession. The exemption does not apply to commercial purposes such as possession for the purpose of trafficking. 

 

Even before Vancouver’s proposal, the number of charges recommended for simple possession has diminished over the years. Possession charges are certainly less common than for more serious offences. The list below outlines the number of charges the Vancouver Police Department recommended for simple possession over the past 12.5 years:

  • 2008: 476 charges for simple possession
  • 2009: 224
  • 2010: 141
  •  2011: 90
  • 2012: 65
  • 2013: 70
  • 2014: 48
  • 2015: 65
  • 2016: 43
  • 2017: 30
  • 2018: 21
  • 2019: 16
  • 2020: 10 (January to June 2020)

Given the significant decrease in the number of charges recommended for simple possession, the proposal does not bring about a drastic change for drug offences in the city of Vancouver. Nevertheless, the proposal is a step towards the more general decriminalization of controlled substances. It may also reduce the stigma associated with drug use.

Filkow Law is a highly respected criminal and driving law firm with 50 years of collective expertise delivering outstanding results. If you are in need of legal assistance, contact us today.

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Sexual Assault Law in the Supreme Court – R v. GF

What role does alcohol play in assessing consent? The Supreme Court of Canada (SCC) recently explored this issue in R v GF.

In R v GF, 2021 SCC 20, the SCC considered the relationship between consent and the capacity to consent to sexual activity. Ultimately, the SCC ruled that the capacity to consent to sexual activity and actual consent do not need to be compartmentalized. Capacity is simply a precondition of consent.

The Facts in R v GF

The accused couple (G.F. and R.B.) was found guilty of sexually assaulting C.R. while on a camping trip. On the final night, C.R.’s mother arranged to have C.R. sleep in the accused couple’s trailer. That night that the two accused and C.R. engaged in sexual activity.

All parties agreed that the sexual activity happened. However, they disagreed on whether C.R. consented to it. C.R. said she drank around 8 to 10 shots and did not consent. G.F. said C.R. had a beer and two half-ounce shots and did consent.

The trial judge believed C.R. and disbelieved G.F. He found that the sexual activity occurred while she was too drunk to consent and that she did not consent.

The Court of Appeal’s Response

The Court of Appeal ordered a new trial because the trial judge erred on two grounds:

  1. He did not explain why he found C.R. was too drunk to give consent; and
  2. He should have considered the issue of consent separately from the issue of capacity.

In his decision, the trial judge concluded:

[72] Section 273.1(2)(b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to the activity. This applies in instances where a complainant is intoxicated.

[73] Accordingly, I find the two accused guilty of sexual assault as charged.

Because the trial judge did not assess at what point C.R. would have been too drunk to give consent, the Court of Appeal found he misleadingly suggested that any level of intoxication is enough to negate consent.

The Court of Appeal also held that the consent and capacity analysis should be separate. Thus, the trial judge should have first asked whether C.R. consented to the sexual activity, then asked whether her level of intoxication invalidated the consent.

The Supreme Court of Canada Finds Capacity is a Precondition to Consent

Karakatsanis J., for the majority of the SCC, overturned the Court of Appeal and reinstated the convictions. While the Court of Appeal looked at alcohol and incapacity as factors that render consent ineffective, the SCC rejected the idea that a person can consent but have his or her consent be ineffective due to alcohol or incapacity. As a matter of logic, a person must be capable of consenting to provide consent.

The SCC outlined a four-part test for when a person is capable of consent. The person must be capable of understanding all of the following:

  1. the physical act;
  2. the sexual nature of the act;
  3. the identity of the sexual partner(s); and
  4. that he or she may refuse to participate.

If the Crown proves the person was incapable of understanding any one of the above beyond a reasonable doubt, the complainant is incapable of consent, and therefore did not consent.

On the issue of the trial judge’s reasons, the SCC reiterated that an appellate court only needs to understand the factual basis for the decision. Poorly expressed reasons did not give rise to an appeal. In this case, while it would have been preferable for the trial judge to clearly identify what aspect of consent he was referring to, his failure to do so was not an error.

What Does This Mean For Sexual Assault Law in Canada?

The R v GF ruling has two implications for sexual assault law in Canada. First, consent and capacity are essentially one concept, where capacity is a precondition to consent. Second, a trial judge does not need to give descriptive reasons about consent and capacity as long as the factual basis for the decision is clear from the record.

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A question that comes up more and more in recent years is, can the police unlock your phone if you’re under arrest? The development of technology, in particular the ubiquitous presence of smartphones, creates issues not previously dealt with by the courts and legal scholars. Requiring someone to provide passwords to the police is one such example of a novel legal problem. The Ontario Court of Justice in R v Shergill recently answered whether the court, through an assistance order under section 487.02 of the Criminal Code, can lawfully require an arrested individual to unlock encrypted data to aid an investigation.

Are Police Allowed to Access Your Data?

Police can and will confiscate your phone if you are arrested. If a person’s device is unlocked upon arrest, the police may in some circumstances lawfully retrieve stored data. However, when the device is locked, the police may not be able to access any information. Lawful seizure of the device alone—without access to stored data—provides little to no investigative value. In limited circumstances, an assistance order may force an individual to participate in the police search so that the investigation is more meaningful. According to Shergill, this power does not extend to an accused person.

Related: “I am Being Arrested By the Police. I Need to Speak to a Lawyer”

This is largely because the data is not accessible without participation of the accused. Trying to obtain encrypted information any other way would expend too many resources or may even destroy the seized device. Although the password itself may not be used as evidence against someone, the inculpatory effect of providing encryption keys in and of itself makes password compulsion unconstitutional. An assistance order against an accused violates the person’s rights including the presumption of innocence, right to silence and right against self-incrimination.

Individual Rights vs Public Interest

The court in Shergill also distinguished password compulsion from other forms of orders related to the creation of physical evidence (e.g., DNA and breath samples). Physical evidence can be obtained through other means. An encryption key, however, requires communicating a thought in the person’s head. The key cannot be revealed unless the person utters the characters. In Canada, the protection of freedom of speech extends to encryption keys, even when it may or may not contain information vital to police investigation. Balancing the public interest in prosecution against an accused’s liberty interests, Shergill sided with protecting individual rights.

This decision has not been appealed or otherwise challenged by other jurisdictions. With emerging technological advancements, the Canadian courts have made it clear that while the police may acquire search warrants against individuals and seize items, access to information within the seized devices are not automatic.

Related: What to Do if You Are Stopped by Police

For more information on search of password-protected devices, or to obtain effective legal representation in unlawful search and seizure, contact us at Filkow Law – 604-558-8778. If you find yourself in need of a criminal defence lawyer, call immediately.

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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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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.

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. You are given 21 days from the date on the Notice of Intent to Prohibit to prepare your submission as to why a driving prohibition should be revoked or why it should be shortened. If you provide submission within the 21-day timeline, your prohibition will be put on hold until a determination is made on your submissions.

A Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving. You will receive a Notice of Prohibition if you fail to respond to a Notice of Intent to Prohibit that was sent to you, if you are serving another prohibition already, or you are on probation. You can apply to review a Notice of Prohibition. However, unlike with a Notice of Intent to Prohibit, the prohibition will not be placed on hold, meaning you will serve the driving prohibition during RoadSafetyBC’s review of your submissions.

If you do not acknowledge your Notice of Prohibition, a police officer can serve you with the prohibition at the roadside. Generally, you will be permitted to drive home, but thereafter, your prohibition will commence, and you cannot drive for any reason until your prohibition ends.

In addition to reviewing your prohibition with RoadSafetyBC, you can seek judicial review of RoadSafetyBC’s decision to prohibit you by appealing to the BC Supreme Court. However, RoadSafetyBC has new policies and guidelines. The updated Driver Improvement Program Guidelines change the timelines for appealing your driving prohibition to the BC Supreme Court.

Driving prohibitions can obviously have major effects. If you receive a Notice of Intent to Prohibit, or a Notice of Prohibition, or any driving prohibition, you are welcome to call our office for advice and representation.

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