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The following paper was written by Filkow Law’s Kevin Filkow in response to the BC Government’s amendments to the Motor Vehicle Act (MVA) in 2010. This paper was written for The Advocate, a leading law journal published by the Vancouver Bar Association. 

If you are in need of legal assistance, call Filkow Law today.

The Ministry of Public Safety and Solicitor General issued a News Release on April 27, 2010[1].  The Release trumpeted that “The province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”

Subsequent to this Release and as an extension of same, the Office of the Superintendent of Motor Vehicles issued bulletins spelling out the penalties which will be part of the new regime.  A comparison of the current and new penalties can be found at the foot of this article[2].

Fundamental to the new regime will be an unequivocal acceptance of a police officer’s report of what took place at a roadside stop upon a breathalyzer test being administered or upon one being refused.  If the reported reading is a fail or if the officer reports a refusal, the new penalties take effect immediately with very limited administrative appeal rights with no true prospect of success.  The ostensible intention, as amplified below, is not to engage drinking drivers in the judicial process except in a limited number of situations.

The Backgrounder[3] to the Province’s Release stresses:  “Major amendments to impaired driving sections of the Motor Vehicle Act (MVA) will ensure impaired drivers caught in BC face instant loss of their driving privileges (90 days) and impoundment of their vehicles (30 days).”   There are other corollary mandatory requirements, i.e. completing the Responsible Driver Program and installing an ignition interlock device which must be utilized for a minimum of one year.  Both these programs are costly. They are without exceptions for hardship or otherwise. In addition, the financial penalties are substantial.  For example, a driver with no relevant history failing a breath sample at roadside or refusing to provide a sample will face minimum fines and fees of approximately $4060.

The Release does add that failing or refusing drivers may also face criminal charges.

What the Release does not say is that there is every indication that criminal charges will only be laid in particularly aggravated circumstances (such as an accident or where there is a prior related conviction) which going forward will be increasingly rare.  The effect of this is that the overwhelming majority of drivers, tested under the new regime, will have no meaningful recourse to challenge what the police say took place at the roadside.  The peace officer will record the reading of the Approved Screening Device (ASD) or alternatively will document the  alleged refusal and then “the curtain drops.”

While right-minded citizens of British Columbia are acutely concerned about drinking and driving, there is every reason to be discomforted by this ‘machine type of justice.’ The ASD was intended to be a screening mechanism under the Criminal Code to assist a peace officer in evaluating the driver’s condition as to sobriety.  The ASD does not have a record keeping or memory capacity.  The instrument can be operated improperly.  The new legislation, however, effectively allows the reading to be definitive.  There is no opportunity to challenge the instrument, no opportunity to cross examine the officer as to the integrity of what occurred and no opportunity to challenge the manner in which the ASD was operated.  An instrument intended only as a screening device is now elevated to a determinative role[4].

The new regime reposes extraordinary power and authority in a peace officer.  Failure to allow for a criminal defence process disregards the unfortunate reality that there are zealous or wrongly disposed peace officers or officers who may mismanage the instrument or simply make a mistake.  No cross-examination or scrutiny of the officer takes place under this regime.

What is not being said is that highly culpable behaviour such as driving while drunk will now largely be outside the criminal process.   The Office of the Superintendent of Motor Vehicles on its website[5] stresses that the “province is introducing changes to give BC the toughest provincial impaired driving legislation in the country.  If you drink and drive after the new law comes into effect on September 20, 2010, you can count on penalties adding up to between $600 and $4060 – even if it’s the first time you’re caught – and more time off the road.”

The corollary of this new approach, though, is that in not facing criminal charges, the driver will not be exposed to the instructiveness of the criminal justice system.  There is significant value in the experience of retaining counsel, facing a public record for criminal behaviour, facing denunciation, and, on some occasions, receiving thoughtful remarks from a presiding judge.  There is an irony, a disconnect that behaviour which is such a serious threat to public safety, will now largely avoid the criminal process.

Also unspoken and related to the previous paragraph is that the province clearly intends to save serious treasury by allocating significantly less resources to what has been the criminal process, i.e. police investigations, Crown prosecutions and trials.  Ostensibly, the motivation is to free up these resources to allocate to ‘more serious’ criminal behaviour.  If that is so, the priorities are misguided. There is probably no form of criminal behaviour more pervasive than drunk driving.  There is probably no criminal behaviour more capable of effective deterrence through public denunciation and the related process.  It is also a reality that police officers should be investigating criminal behaviour; this behaviour should not be given diminished significance.

The volume and the cost of the impaired driving problem should not be a rationale for compromising individual rights and protections.  There are no practical or genuine checks and balances under this new regime.  Criminal law has always required a very high standard of proof and a compelling burden on the Crown to meet its case.  What the Federal Government sees as criminal will now be something else – effectively an administrative regulatory matter.  It would seem reasonable to expect that the new legislation will face a challenge in seeking to displace the federal criminal law power under s. 91 of the Constitutional Act.

What is not mentioned is that there will be a disparity between incidents where there is an ASD handy and those incidents where there is not.  Any driver pulled over in the latter circumstances will likely be subject to the old regime and will in these limited cases have access to the criminal justice system.

Indicative of how far reaching is this philosophical change by the BC government is the Warning protocol.  This Warning protocol will apply to drivers whose apparent readings are below the legal limit of .08% blood alcohol content and may not be demonstrating any signs of impairment.

As outlined above, a driver who fails (above .08%) or ‘refuses’ to provide an ASD sample will be given a 90-day suspension at roadside, will be subject to a one year Interlock Ignition program and financial penalties which amount to $4060.  His or her vehicle will be impounded for 30 days.  The Warn range is a reading of .05 to .08% (some ASDs are calibrated to .099%).  This results in an immediate 3-day suspension, a 30-day impoundment and minimum fines and fees of about $600.  This is for the first warn in 5 years.  A second warn in the same period draws a 7-day suspension, a longer period of impoundment and minimum fines and fees of $760.  A third time warning within 5 years carries with it a 30-day suspension, a 30-day impoundment, a one year Ignition Interlock program and a minimum financial penalty of $3650.  Three beers within a two hour period would put virtually anyone in the Warn range.  There is again no practical opportunity to challenge these consequential penalties and, in these cases, for not behaving in an illegal manner.

The province’s express rationale is that enforcement of drinking and driving offences will be far more expedient under the new regime.  It characterizes the new regime as the toughest driving laws in the country.  While the penalties under the new laws are certainly swift and severe, the intended approach avoids the criminal justice system and allows a matter of serious legal consequence to be technologically and summarily resolved at the instance of a peace officer whose fairness and ability are taken as a “given.”  In this author’s view this departure from the honoured protections is a matter of concern.  A better alternative would be to ensure greater resources as necessary to expedite the process which preserves the rights and protections of individuals.

[1] Ministry of Public Safety and Solicitor General, News Release, 2010PSSG0026-000472, “B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS” (27 April 2010).

[2] See Appendix: Office of the Superintendent of Motor Vehicles, online: CURRENT and NEW Penalties Comparison Chart <http://www.pssg.gov.bc.ca/osmv/publications/docs/impaireddriving-currentandnewpenalties.pdf>.

[3] Ministry of Public Safety and Solicitor General, Backgrounder, 2010PSSG0026-000472, ” B.C.’S IMPAIRED DRIVING LAW TO CHANGE” (27 April 2010).

[4] The Supreme Court of Canada held in R. v. Orbanski, [2005] S.C.J. No. 37, that there is no entitlement at the roadside to be advised of or to receive counsel as the evidence obtained would only go to the police officer’s reasonable grounds to make a breathalyzer demand. The new legislation extends that principle to a situation of a very different character.

[5] Office of the Superintendent of Motor Vehicles, online: Impaired Driving <http://www.pssg.gov.bc.ca/osmv/impaired-driving/index.htm>.

© By Kevin A Filkow

 

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Witnesses giving evidence or testifying in court is a fundamental part of the criminal justice system. A single witness can make or break a case.

Types of witnesses in a criminal matter

There are generally three kinds of witnesses: (1) eyewitnesses, (2) expert witnesses and (3) character witnesses. Eyewitnesses testify as to what they saw or heard. For example, if Mr. Jones saw someone break into a home, Mr. Jones would be an eyewitness who could give evidence about who and what he saw. Similarly, if Ms. Jones heard the sound of breaking glass, Ms. Jones would be an eyewitness who could provide evidence about what she heard. Both the prosecution and the defence can call an eyewitness to give evidence. After a witness has given their evidence, the other side will have an opportunity to cross-examine that witness.

Expert witnesses provide an opinion on an issue that is beyond the experience and knowledge of the judge or jury—for example, the diagnosis of a mental disorder or the cause of a motor vehicle accident. A judge must qualify expert witnesses before they are allowed to testify. Expert witnesses cannot give evidence as to whether they think an accused person is innocent or guilty, but their opinion can strongly impact the judge or jury.

Character witnesses may be called to speak to the good or bad character of a person. Character witnesses do not give evidence regarding the incident itself but rather their knowledge of a person’s reputation regarding certain character traits, such as honesty or morality. Generally, the Crown is prohibited from adducing evidence about an accused person’s character unless the accused brings it up first. For example, if Mr. Jones is accused of fraud, he might say that he would never commit a fraud because he is such an honest person. This would open the door for the Crown to bring in their own witnesses as to Mr. Jones’ bad character.

What qualifies a witness?

There are few qualifications for witnesses. A witness must be able to understand the nature of an oath or solemn affirmation and communicate evidence. In cases where a witness does not understand an oath or solemn affirmation, by reason of mental disorder or otherwise, they can still testify by a promise, to tell the truth. If a witness is 14 years or younger, they must be able to understand and respond to questions and promise to tell the truth.

What qualifies an expert witness?

Expert witnesses are subject to more qualifications than ordinary witnesses. The proposed expert witness must: 

  • be relevant; 
  • be necessary to help the judge or jury;
  • not be excluded by any other rule of evidence; and 
  • must be “properly qualified.”

The necessity of an expert will depend on whether the opinion is outside the realm of ordinary human experience. Common areas where experts are required include:

  • accident reconstruction;
  • alcohol or drug analysis;
  • injury causation;
  • arson;
  • cell phone towers;
  • digital analysis (cellphones, computers, etc.)
  • social science
  • mental health; and
  • DNA.

The judge makes the final decision about whether an expert is qualified or not based on their education, training and experience.

What qualifies a character witness?

There are no special qualifications for character witnesses. If you are giving evidence of the accused’s character, you can only give testimony as to the general reputation of the accused for a certain character trait. Common traits are honesty and morality. 

For example, if Mr. Jones is giving evidence about the character of the accused, he might testify to the following:

  • Mr. Jones’ own credibility and reputation;
  • Mr. Jones’ relationship and connection to the accused; 
  • how Mr. Jones knows the general reputation of the accused in the community; and 
  • the reputation of the accused is regarding a particular character trait.

Mr. Jones cannot give evidence about his personal opinion or specific good acts the accused has performed in the past unless those acts are demonstrative of the relevant character trait.

What if I incriminate myself in someone else’s trial?

As a witness, you can be compelled to answer a question even if it may incriminate you or establish your liability in a civil proceeding. However, that compelled testimony cannot be used in another proceeding against you except for prosecuting perjury or giving contradictory evidence. For example, if Mr. Jones testified that he remembered witnessing an assault because it happened near his favourite bar, and he had just finished drinking five beers before driving past the crime scene, the Crown cannot use that admission as evidence against Mr. Jones in a drinking and driving case against Mr. Jones. However, if there was an impaired driving case against Mr. Jones, and he testified that he only had one glass of wine, he can be cross-examined on his testimony from the other proceeding to show that he is not credible or deliberately gave a false statement under oath or both.

What if the accused is my spouse?

Every witness can be compelled to testify – even if the accused is their spouse. However, no person is required to disclose any communication made to them by their spouse during their marriage. For example, Ms. Jones could be compelled to answer questions about whether she saw her husband, Mr. Jones, damage their neighbour’s car. Ms. Jones could not be compelled to answer questions about whether Mr. Jones discussed his plans to damage their neighbour’s car with her.

Conclusion

Understanding the role of each witness is a vital part of trial preparation and strategy. The lawyers at Filkow Law have over 50 years of experience dealing with all types of witnesses. If you are in need of legal assistance, please feel free to give us a call.

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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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