Blog

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

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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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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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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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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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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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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