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

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.

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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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.

What Constitutes An ICBC Breach?

There are a number of common grounds for breaches:

  • A failure to cooperate with ICBC;
  • A false statement;
  • A finding that the driver is impaired;
  • A motor vehicle-related Criminal Code conviction;
  • A misrepresentation of the principal operator or rate class;
  • A finding that the driver drove without consent of the owner;
  • A conviction for driving while prohibited;
  • A failure to comply with the conditions of the driver’s licence;
  • A failure to remain at the accident;
  • A finding that the driver was in a race;
  • A finding that the driver was trading or transporting illicit goods;
  • A finding that the driver was attempting to escape arrest or police action;
  • A finding that a person permitted a driver to do any of the above;

The above is not an exhaustive list, rather it serves to illustrate the numerous ways in which ICBC can breach your insurance.

An ICBC investigation begins immediately. From the day you get in a motor vehicle accident, you are required to give notice and cooperate with ICBC. Any failure to do so can result in a breach.

If you are in an accident, it is important to get good legal advice even before you report the accident. There is a lot at stake. An experienced lawyer is important for drafting a proper statement, investigating the circumstances of the allegations, determining whether there is in fact and in law a breach, negotiating with ICBC, preparing a lawsuit if necessary, dealing with any debt, and more.

You are welcome to call us for assistance.

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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.  

Related: BC Driving Prohibition FAQ

On the morning of Saturday, November 14, 2015, Mr. Chung drove his vehicle at almost three times the speed limit towards the intersection of Oak Street and West 41st Avenue in Vancouver and crashed into a left-turning vehicle. It was not raining, but the road was wet. Traffic was light around the intersection at the time, but other cars were present. The speed limit for both streets is 50 km/h, but the court heard evidence that drivers generally go above that speed limit. Both roads are wide and straight and have dedicated left turning lanes. A dashboard camera video from another vehicle captured 4.9 seconds of the event. Over the span of a block, Mr. Chung had moved into the curbside lane, passed at least one car on the right, and accelerated from 50 km/h to 140 km/h before entering the intersection. The trial judge found that Mr. Chung was not inattentive nor was he engaged in any dangerous conduct prior to this one block span. Mr. Chung was driving a powerful vehicle that could accelerate quickly. As Mr. Chung approached the intersection going north along Oak Street, there was a Toyota in front of him making a right turn. As the Toyota was turning right, the other driver started to make his left turn from going southbound on Oak Street to eastbound on West 41st Avenue. At this point, Mr. Chung started braking, narrowly missed hitting the Toyota, and collided with the victim’s car at a speed of 119 km/h. The driver of the left-turning vehicle died at the scene. Mr. Chung was charged with dangerous driving causing death.

How Dangerous Driving is Determined

Generally speaking, all crimes are composed of two elements: a “guilty act” (referred to in Latin as the “actus reus“) and a “guilty mind” (referred to in Latin as the “mens rea“).  To be guilty of a crime, a person must do something that is against the (criminal) law. This is the “guilty act” (“actus reus”). But something has to make the person criminally (as opposed to civilly) responsible for what they’ve done. This is called the “guilty mind” or “mens rea” in Latin.

For some crimes, like dangerous driving, a person can be responsible even if they don’t mean to do anything wrong. Instead, the Judge will look at what an ordinary, sensible person (a “reasonable person”) would have done. If the manner of driving of the accused person and the “reasonable person” are very different, this is considered a “marked departure”. In a case involving a charge of dangerous driving, in assessing a driver’s guilty mind the courts consider whether the manner of driving constitutes a “marked departure” from the manner of driving of an ordinary reasonable person. Driving in a manner that is “marked departure” from that of a reasonable person is the guilty mind for crimes like dangerous driving. The actus reus for this crime is driving in a way that is dangerous to the public. 

What constitutes a “marked departure” from the manner of driving of an ordinary reasonable person is a question of degree.  Judges in Canada have struggled to apply this test. That’s because dangerous driving attracts criminal as opposed to purely civil consequences.  The question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences.  For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide.  People drive badly every day.  People speed, often excessively, and driver’s make poor decisions that result in crashes. But not everyone who speeds, even excessively, or makes a poor decision that results in a crash is charged with or convicted of dangerous driving.  If it did, our courts would be inundated with dangerous driving cases, and too many Canadians would have criminal records.  Consequently, not all bad driving or even dangerous driving (excessively speeding for example) means the person should be convicted of dangerous driving.  The driving behaviour must also constitute a “marked departure” from that of an ordinary reasonable person.  

The experienced trial judge said Mr. Chung’s extreme speeding over a short distance met the requirement for the guilty act but he didn’t think Mr. Chung had the “guilty mind” or mens rea. He said even though tragic consequences ensued, the brief period of speeding, on its own, wasn’t enough to establish the “marked departure” required for the offence of dangerous driving.  

The Crown appealed. The British Columbia Court of Appeal said the trial judge made an error by concluding that speeding over a short period of time wasn’t enough to show a “marked departure” from that of a reasonable person. The BC Court of Appeal concluded: “In this case, I cannot understand how one could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver”. The Court of Appeal replaced the “not guilty” finding with a “guilty” finding. Mr. Chung appealed this decision to the Supreme Court of Canada.

The majority of judges at the Supreme Court of Canada agreed that the trial judge erred. They said the trial judge focused on the fact that Mr. Chung’s speeding was for a short period of time but this wasn’t the right thing to focus on. The trial judge should have looked at whether a reasonable person would have foreseen a danger to the public and what the reasonable person would have done in the situation. The trial judge should have compared this to what Mr. Chung did, and then decided if his conduct was a “marked departure” from that of the reasonable driver.  The majority said that Mr. Chung’s conduct was a “marked departure.” Like the BC Court of Appeal, the majority judges at the Supreme Court of Canada said a reasonable person would have foreseen that quickly accelerating toward a major intersection at a high speed would create a risk, almost immediately, of hurting someone. The majority of judges said that a reasonable person understands that driving, by nature, is risky. They said the faster someone drives, the harder they accelerate, and the more aggressively they deal with traffic, the more risky it becomes. They said that even careful driving can have tragic results. But some conduct, like the driving in this case, is dangerous enough that it deserves criminal punishment.  The majority confirmed that Mr. Chung was guilty of dangerous driving causing death. It is important to note that the “marked departure from the ordinary reasonable driver” was the conduct of approaching a major intersection at three times the speed limit and not the fact that a crash ensued or that the other driver was killed. 

The problem with this approach is that from a practical perspective, a charge and conviction for dangerous driving is entirely consequence driven, even though neither the guilty act nor the guilty mind elements of the test for dangerous driving even consider the fact that there was a crash.  The reality is that if Mr. Chung had driven excessively through a major intersection and there was no crash, he would have been issued a ticket for excessive speeding and his vehicle would have been impounded for 7 days. The conviction would have been recorded on his driving record only and he would not have incurred a criminal record. In those circumstances, Mr. Chung would not have been charged, let alone convicted, of dangerous driving.  This is the case, even though both the “guilty act” and “guilty mind” elements of the offence are the same regardless of whether there is a crash. The guilty act is approaching a major intersection at three times the speed limit.  The guilty mind is that this behaviour constitutes a marked departure from the conduct of an ordinary reasonable driver. Note that neither element relies on the consequence of a crash.  Yet those that do crash will be charged with dangerous driving and those that do not will not.  

Everyone charged with such a serious offence should contact a lawyer well versed in driving offences and driving law in order to receive proper legal advice and representation. Filkow Law has extensive experience with driving offences. Contact us if you need assistance. 

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