Criminal Law

Criminal Law

When the police suspect someone of criminal activity, it’s common for them to obtain search warrants to search the suspect’s home, car, or other storage sites. When they do this, they’ll often seize many items. Sometimes, the suspect doesn’t get charged with a crime, or at least they’re not charged yet, but the police are still holding on to the seized items for a long time, depriving their owner of them. In some cases, this can even go on for years.

What do the police do after they’ve taken things they obtained with a search warrant?

The first thing that’s supposed to happen after the police seize things from a suspect is that they’re supposed to get an order from a justice, “as soon as practicable,” that allows them to legally keep those things for a limited time period. If they don’t do this, they’re illegally possessing the suspect’s property. The police then need to satisfy a justice that they should be allowed to keep the seized things for the purpose of an investigation, criminal trial, or other (legal) proceeding.

The police don’t have to prove anything to satisfy a justice to give them an order to keep the seized things. A simple explanation is usually enough, like, “we took this person’s computer and business documents because we think we’ll find evidence there to support our fraud investigation against them.” The justice just needs to be “satisfied” the police need the items for their investigation.

Once the justice is satisfied, they grant the police an order to keep the seized things for 90 days. The suspect doesn’t get the chance to respond to the police’s justifications at this stage, nor do they even get notified that a justice granted the police the initial 90-day order.

So how can I get my stuff back if the police have a right to keep it for 90 days? Do I get it back after that?

The answer to these questions are “it depends.” If the police seized things that they don’t require for their investigation or any other proceeding, then they should return those things, provided the suspect is legally entitled to possess them. However, it’s not possible to get an order from a judge during the first 90 days for the police to return things they’ve seized unless it’s creating some hardship for the suspect. If there’s no hardship, the suspect can only apply after the first 90 days are expired. Before that happens, the police will notify the suspect that they’ll be applying to keep the seized things longer than 90 days. Often, the police ask for a nine-month time extension after the first 90 days after up.

If the police seized things from someone other than the suspect, i.e. a third party, then that third party can apply at any time to have their things returned to them. Usually, a judge, rather than a justice, decide whether to order that things belonging to a third party should be returned to them.

The police took a bunch of stuff unrelated to any criminal investigation. Can I get that stuff back, at least?

The police will often seize money, cars, or other property from people they’re investigating. Although the seized things might have nothing to do with their criminal investigation, the police will take them to seek to have them forfeited through civil forfeiture proceedings. That’s a procedure in civil court where the government alleges that things seized from a suspect were used to commit a crime (e.g. a vehicle used to transport drugs) or obtained by committing crimes (e.g. money earned from the sale of illegal drugs). If a civil court judge is satisfied that the seized things are “tainted” in this way, then they can order the property has to be forfeited (i.e. given up) to the government.

When the police obtain an order from a justice to keep seized things for the initial 90 days, the justice also considers whether those things are required for civil forfeiture purposes. If they are, they’ll grant the order for that reason too. The justice doesn’t only focus on whether the seized things are for a criminal investigation.

After the initial 90 days, the police must apply for a time extension to keep the seized things beyond 90 days. Many times, their application is uncontested by the suspect. However, if it becomes contested, then a judge, rather than a justice, will usually decide whether to grant the time extension. At that stage, the judge must “have regard to” the nature of the police investigation before granting a time extension to the police. This is a slightly more stringent test than the test for the initial 90-day order.

At the 90-day stage, it’s possible for a judge to find that the police have been too slow to refer seized things to civil forfeiture if that was the reason police seized those things in the first place. If that happens, the suspect might get their things back. If not, the judge will grant the extension to the police. The suspect might then need to argue their case in civil court once civil forfeiture proceedings are underway unless the suspect gets charged with a crime before the time extension expires.

The police’s investigation is complete, and I’ve been charged with a crime. Does that change anything?

If the suspect is charged with a crime, it changes everything. The police no longer require any orders from a judge or justice to keep the things they seized from the suspect (once charged, the suspect is now called “the accused”). The police are legally entitled to keep the seized things until the end of the criminal proceedings, where the accused will be found either guilty or not guilty.

Once the suspect is charged with a crime, the police also don’t need any more judicial orders to keep the things they’ve taken for civil forfeiture purposes. They can also keep those things until the end of the criminal proceedings. The police can still choose to refer those things to the civil forfeiture office, but often they’ll wait for the outcome of the criminal proceedings instead.

If the accused is found guilty, the Crown can apply in criminal court to forfeit the accused’s seized things. This is a similar procedure to civil forfeiture proceedings but takes place in criminal court after the verdict.

Once again, if the police seized things from a third party (i.e. someone other than the accused), the third party is allowed to apply to have their things returned to them at any time, even if the suspect/accused has been charged with a crime as part of that police investigation.

All of this is pretty unfair, isn’t it?

The policy of using civil forfeiture as a means to tackle crime is controversial. The power of the police to take things from people, and to keep them with very little proof they have a good reason to keep them, also raises concerns about the extent of police power. The way the law is structured relies heavily on the police acting in good faith.

However, a suspect isn’t deprived of all remedies when the police take their things. The rights of innocent third parties is protected by the law. The framework around civil forfeiture allows some flexibility to civil court judges to return property to suspects.

Some judges have granted accused people remedies under the Charter of Rights and Freedoms, where the police were cavalier about following the proper procedures to keep things they had seized from the accused. The first step to fighting back, of course, is getting a lawyer to look at the issue.

Contact Filkow Law today

If the police have filed a search warrant or have had your seized belongings referred to civil forfeiture, call Filkow Law today. Our lawyers have vast criminal law experience and are equipped with the right tools to assist your case. Contact us for a consultation today.

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Many people accused of a crime have no idea what the possible outcomes could be to the accusation. Below is a list of possible outcomes after someone has been accused of a crime in Canada.

(1) No charge

The Crown prosecutor decides their charging standard is not met and does not approve/lay charges.

To approve a charge in British Columbia, the Crown must be satisfied that: (a) the charge/prosecution is in the public interest; and (b) there is a “substantial likelihood” of conviction.

In BC, the standard of proof is higher than other provinces. In Ontario, only a “reasonable prospect” of conviction is required and, in Alberta, the standard is “more likely than not”.

Another difference in charge assessment is that the Crown approves criminal charges in BC – not the police. In other provinces, such as Ontario, Alberta and Manitoba, the police approve charges without Crown approval.

(2) Acquittal/Not guilty

The judge or jury makes a finding of “not guilty” after trial. This occurs when the judge or jury is not satisfied that the accused committed the offence beyond a reasonable doubt.

(3) Charge withdrawal

The Crown decides to withdraw, or undo, an approved charge. This outcome is rarely utilized by the Crown in BC. The Crown in BC more frequently enter a stay of proceedings (see below).

(4) Stay of proceedings

The Crown “stays”, or stops, the prosecution. This is commonly how the Crown drops charges in BC. Legally, it is possible for the Crown to reinitiate a prosecution after a stay, however it is rare.

(5) Alternative measures

The Crown diverts an accused’s prosecution from the courts to Community Corrections (or probation). If the accused is accepted into the program, they must complete some requirements that are like probation. If the accused successfully completes the requirements, the Crown will enter a stay of proceedings on the charge. The Crown can also divert a case before charging it.

(6) Peace Bond

The accused acknowledges the complainant has a reasonable fear of them and agrees to enter into conditions for up to one year. A peace bond is not a criminal charge. It is similar to what many people refer to as a restraining order.

Peace bonds do not involve the accused admitting guilt, instead, they acknowledge the complainant’s reasonable fear of the accused. The conditions of a peace bond include restrictions on contact with the complainant. There may be various exceptions depending on the circumstances.

(7) Absolute discharge

The judge finds the accused guilty of an offence but does not convict them. This is like a sentence of mercy. Because the accused is not convicted they do not receive a criminal record and they do not receive any punishment (conditions, fines, jail, etc.).

(8) Conditional discharge

The judge finds the accused guilty of an offence and imposes up to three years of probation. This is like an absolute discharge but with conditions. If the accused is convicted of breaching their probation, the court may revoke the conditional discharge and convict the accused. After completing the conditions, the discharge becomes absolute.

(9) Suspended sentence

The judge convicts the offender and imposes up to three years of probation on them. This results in a criminal record but no fine and no jail.

(10) Fine

The judge convicts the offender and imposes a fine. This is not like a fine imposed for a traffic violation and failure to pay can result in jail time.

(11) Conditional sentence

The judge imposes a jail sentence on the offender but allows them to serve their sentence in the community under certain conditions. This is sometimes called house arrest. The maximum time for the conditional sentence is two years less a day. A further three years of probation can be imposed at the end of the conditional sentence.

(12) Intermittent sentence

The judge imposes a jail sentence on the offender but allows them to serve their sentence a few days at a time. The offender usually serves an intermittent sentence on weekends. They go into custody on Friday evening until Sunday. This may allow an offender to maintain employment. The offender is also placed on probation on the days they are not in jail.

(13) Jail – provincial time

The judge imposes a jail sentence on the offender of up to two years less a day. This is referred to this as “provincial time” because these sentences are served in provincial correctional centres. Provincial time can be followed by up to three years of probation.

(14) Jail – federal time

The judge imposes a jail sentence on the offender of two years or more. This is referred to this as “federal time” because these sentences are served in federal correctional facilities. There is no probation for federal time.

Charged with a criminal offence? Call Filkow Law

If you are being investigated, or have been charged with a criminal offence call the lawyers at Filkow Law for representation and expert advice.

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In BC, we have an online system that tracks criminal and traffic cases in provincial court. It also tracks superior court civil cases and appeal cases. You can find this at the Court Services Online website. For criminal cases, click on “search traffic/criminal” then enter the name of the person you want to search.

 

What information is included on Court Services Online for criminal matters?

You can obtain quite a bit of information from doing a search query on someone on Court Services Online. Criminal and traffic cases will be listed. You can see the court file numbers. Those starting with “AH” refer to traffic matters. You can see the police file number (called “Agency File #”), the court location, date/time, reason for court date, and the last result.

If you click on “view”, you can see even more information, including the charging date, the alleged offence date, the offence charged, all the court appearances, and the outcome under “sentences/disp.”.

 

What do all the three letter abbreviations mean next to the court appearances?

There’s many possible two or three letter acronyms next to the court dates found under the “reason” column (as in, “reason for court date”). For the first court date, this will be listed as “FA” for First Appearance. Regular court dates are listed as FxD for “Fix Date”. That means those dates were set to set another court date. That might seem silly, but this exists whenever an accused hasn’t decided yet whether they’ll choose to plead guilty to their charges or set them for trial.

The letters “CWC” stand for Consult With Counsel. This means the accused doesn’t yet have a lawyer. Their next court date exists to tell the court whether they’ll be hiring one, and if so, who it’ll be. The letters “JIR” stand for Judicial Interim Release. This means the court date is set for a bail hearing to determine whether the accused will be released from custody (i.e. jail) pending the outcome of their charge.

Another acronym is CWI, which stands for Compliance With Instructions. This can show up when an accused has been referred to alternative measures, a type of mini-probation that, if completed, means the Crown prosecutor will drop the charges. The court date exists to confirm with the court that the accused completed those requirements.

An important acronym is WI, which stands for Warrant Issued. This occurs whenever an accused fails to appear for court when they knew they should have. If a warrant exists for your arrest, it’s better to turn yourself in rather than wait until the police arrest you. Getting re-released on bail will be more likely that way.

 

So, everything going on with someone’s criminal charges is visible to the public?

Yes. Without any application for a publication ban at a bail hearing, court information will remain visible to the public. It’s likely that many employers are aware of the existence of Court Services Online, and they may look someone up to do a quick “background check” on them.

The potential use of Court Services Online by prospective employers is hardly fair, because the accused could be rejected for a job application without having ever been found guilty of anything. Ongoing charges get listed on Court Services Online, regardless of the strength of the prosecution’s case.

Worse yet, prospective employers usually need to get the consent of applicants before doing background checks on them. With Court Services Online, they can look up ongoing criminal matters without any consent from the applicant, or even without the applicant knowing they were searched in this way.

 

Is there any way to erase my information listed on Court Services Online?

The best an accused can do is ask the judge for a publication ban during their bail hearing. The judge can only order such a ban when the issue of bail is live. They can’t make such an order at other types of hearings. Even then, if a judge orders a publication ban, the entry on Court Services Online won’t be removed altogether. Instead, it’ll still exist and say “ban imposed”. It won’t be possible to view the charges, but other information may still be visible.

Once the charges are dealt with, the entry on Court Services Online will remain for a certain time, after which they’re usually removed. The time varies depending on the outcome. If the accused is convicted (i.e. if they received a criminal record as part of the outcome) then the entry might remain indefinitely, or until the accused obtains a record suspension (i.e. a pardon).

Other expiry dates include one year for a peace bond or stay of proceedings (i.e. if charges are dropped) and perhaps longer for a conditional discharge (i.e. for probation with no conviction/no criminal record). It’s unclear how long the entries remain because it depends on the administrative decision-making of the government staff that runs Court Services Online.

If an old charge remains visible on Court Services Online, and enough time has passed that it should have been removed, it’s possible to simply ask the Court Services Online staff to remove it. They may not readily be responsive. If they refuse to remove it and offer no way to appeal their decision, the only remedy available is to apply to a judge in superior court to review their decision.

 

Is anyone’s privacy protected after they’re charged with a crime?

Oddly, criminal matters being heard in superior court don’t appear on Court Services Online. This is ironic because superior court only deals with criminal matters where the Crown has proceeded by indictment, i.e. where the Crown consider the charges to be on the more serious end of the spectrum. That means the privacy of people accused of more serious crimes is better protected online than for people accused of less serious crimes.

The only class of people who will not appear on Court Services Online at all are youth. This is to give effect to the Youth Criminal Justice Act, which says young people should receive enhanced privacy protections.

If you are being investigated, or have been charged with a criminal offence call the lawyers at Filkow Law for representation and expert advice.

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On April 14, 2016, Dr. Perry Kendall, Provincial Medical Health Officer declared a public health emergency under the BC Public Health Act in response to increasing overdoses and overdose deaths in our province.

BC Drug Decriminalization 2022

In an effort to reduce the number of deaths caused by overdoses of controlled substances, the federal Minister of Mental Health and Addictions and Associate Minister of Health granted the province of British Columbia’s request for an exemption under the Controlled Drugs and Substances Act allowing adults to possess small amounts of some controlled substances for personal use without fear of criminal prosecution.

From January 31, 2023, to January 31, 2026, adults (18 and over) in BC will be exempt from criminal charges for possessing a cumulative maximum 2.5 grams of the following substances:

  • Opium, including heroin and fentanyl.
  • Cocaine.
  • Methamphetamine, but not its salts.
  • MDMA.

There are two important conditions for the exemption to apply. First, possession of these substances must only be for personal use. This means there must be no intent to traffic, export, produce or manufacture the substance. Second, if the substance is possessed on a boat, a train, or a motor vehicle operated by an adult, the substance must not be readily accessible to the driver or operator.

The exemption from prosecutions does not apply in the following circumstances:

  • on K-12 school premises;
  • on child care facility premises;
  • in airports;
  • in a motor vehicle that is driven or operated by a minor, whether or not the vehicle is in motion; and
  • in a watercraft that is operated by a minor, whether or not the watercraft is in motion.

Drug Decriminalization in BC: Next Steps

The stigma associated with substance use can lead people to use in riskier ways. Individuals found in possession of substances listed in the exemption will be provided with information on available local health and social services and can also be provided with assistance to connect with those services. The decision to exempt users from criminal prosecution will allow users to seek and obtain assistance and reduce the number of lives lost to overdoses in BC.

If you are being investigated or have been charged with a drug offence, contact the experienced lawyers at Filkow Law for legal assistance.

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Allegations of assault offences are very common.  From pushing and shoving to punching and kicking, assault is the most common type of violent crime.  This article outlines the different types of assaults recognized in Canadian law and provides some explanation of each.

What is an Assault Offence?

Assault is defined as the intentional application of force to another person, directly or indirectly, without that other person’s consent.  Simply put, an assault occurs as soon as person A touches person B without person B’s consent.  Any unwanted touching is an assault.  There are a few features of assault that are important to understand.

First, the application of force must be intentional.  If person A accidentally touches person B, then they have not committed an assault.  Tripping and falling into another person, bumping into them while distracted, and being pushed into someone by a third party are not assaults because the application of force was unintentional.

Second, as set out in the definition, the application of force can be indirect.  Suppose person A intentionally pushes person B into person C.  In this scenario, person A is responsible for assaulting both person B and person C.  Person A assaulted person B because he directly applied force to person B, and person A also assaulted person C because he indirectly applied force to person C by pushing person B into person C.

Is tapping someone on the shoulder assault?

Third, any physical contact without consent that is more than trifling is an assault.  Only the most minor and trifling physical contact is not an assault.  For example, if person A taps person B’s shoulder to get their attention, person A has not committed an assault because the touching is so minor.

Assault is also defined as “an attempt or threat, by any act or a gesture, to apply force to another person, that causes the other person to reasonably believe that the person will apply force to them”.  This means an assault can be committed even when there is no physical contact.  An act or gesture can be an assault.  An example of this occurs when person A raises their fist to person B in a way that makes person B reasonably believe he is about to be punched.  In this example, person A has assaulted person B even though there was no physical contact.

A conviction for assault can result in a criminal record, a jail sentence and other consequences.

Assault With a Weapon

Assault with a weapon is defined as an assault where a person “carries, uses or threatens to use a weapon or an imitation thereof”.

Assault with a weapon shares the essential elements of an assault with the addition of a weapon.  A “weapon” is defined as “any thing used, designed to be used or intended for use: (a) in causing death or injury to any person, or (b) for the purpose of threatening or intimidating any person”.

The law recognizes some items as weapons.  For example, firearms, switch blades, stilettos, butterfly knives and brass knuckles.  These are all weapons because they are designed to cause death or injury.

But depending on the context, anything – from a cell phone to a water bottle to a stapler – can become a weapon.  Whether a thing is a weapon is defined by its context.  Suppose during an argument person A grabs a stapler and hits person B with it.  In this scenario, person A assaulted person B with a weapon.  The stapler was simply a stapler until it was used in an assault.  Once used to hit person B, the stapler became a weapon.

Assault Causing Bodily Harm

An assault causing bodily harm is defined as an assault that results in bodily harm.  “Bodily harm” is defined as “any hurt or injury to a person that interferes with the health or comfort of the person and that is more than merely transient or trifling in nature”.  The threshold for bodily harm is low.  It includes injuries such as bruising and cuts.

Assault causing bodily harm is defined by its outcome and not its intention.  For example, suppose person A punches person B and person C at separate times but in an identical manner.  Person B is cut by the punch and person C is not.  Even though the act of punching was the same in each case, person A committed assault causing bodily harm against person B because person B was cut.  It does not matter whether person A intended the cut to happen.

Assault causing bodily harm is more serious than an assault without bodily harm and can result in a more significant sentence on conviction.

Aggravated Assault

Aggravated assault is defined as an assault that “wounds, maims, disfigures or endangers the life of the complainant”.  This means that there are effectively four separate kinds of aggravated assaults: those that wound; those that maim; those that disfigure; and, those that endanger life.

A “wound” is defined as “a break in the continuity of the whole skin that constitutes serious bodily harm”.  A stabbing meets the definition of a wound.

“Maim” means “the loss of the use of some body part or some bodily function”.  Breaking someone’s arm or leg is maiming.  The loss of use of this body part or function does not need to be permanent to constitute maiming.

“Disfigurement” is an injury that has a long-lasting and significant effect on the appearance or beauty of a person.  Examples include scarring as a result of cuts, acid or burns.  A temporary effect on a person’s appearance, such as a bruise or a black eye, is not a disfigurement.

“Endangering” means to endanger a person’s life as a result of a completed assault.  The following two examples help illustrate the definition:

  1. Person A pushes person B on a 4th-floor balcony causing person B to go over the railing.  Person B manages to hang on.  Person B is not harmed but his life was put in danger as a result of the assault.
  2. Person A pushes person B into a busy intersection with many fast-moving vehicles.  Person B is fortunate that the drivers see him and avoid a collision.

In both cases, the assault itself did not result in any harm or injury, but the person’s life was put in danger by the assault.

Aggravated assault is more serious than assault causing bodily harm and will usually attract a jail sentence upon conviction.

Domestic Assault

Domestic or spousal assault refers to any form of assault against an intimate partner or a family member.  A domestic assault is an aggravating circumstance on sentence if convicted.  An “intimate partner” is defined as a “current or former spouse, common-law partner and dating partner”.  Any assault against a girlfriend or boyfriend is a domestic assault.

Domestic assaults require special consideration for a few reasons.

First, an allegation of a domestic assault will routinely result in an accused person being put on conditions not to go to near their partner and not to contact their partner.  There are limited exceptions.  This can be challenging when a couple lives together or coparents children.

Second, domestic assaults may overlap with family court proceedings.  A decision in one case may affect the other.  This requires coordination between a family lawyer and a criminal lawyer.

Third, if the couple has children, the Ministry of Children and Family Development may send a social worker to investigate and make decisions about where a child should live or whether a protection order is required.  The Ministry has the authority to impose their own conditions separate from the police and the court based on the best interests of the children.

Uttering Threats

Uttering threats is defined as “knowingly uttering, conveying, or causing any person to receive a threat (a) to cause death or bodily harm to any person; (b) to burn, destroy or damage real or personal property; or (c) to kill, poison or injure an animal or bird that is the property of any person”.  In other words, three specific types of threats are prohibited: threats to kill or harm someone; threats to damage property; and threats to injure a pet.

Allegations Of Assault Offences

Allegations of assault and uttering threats can be complex and serious.  The lawyers at Filkow Law have extensive experience in defending people from these types of charges.  If you find yourself being investigated or charged with this type of offence, call us immediately.

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In a newly published decision from the British Columbia Supreme Court, Anthony Robinson of Filkow Law successfully defended his client on a charge of second-degree murder on account of a mental disorder rendering him incapable of knowing that the act was morally wrong. This defence is sometimes known as the “insanity defence”. It is provided for in section 16(1) of the Criminal Code:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

This defence can be divided into three parts: (1) Did the accused suffer from a mental disorder? (2) Did that mental disorder render the person incapable of appreciating the nature and quality of the act? (3) Did that mental disorder render that person incapable of knowing that the act was wrong?

What is a Mental Disorder?

A mental disorder is defined in section 2 of the Criminal Code as a “disease of the mind”. In R v Cooper, a 1979 decision of the Supreme Court of Canada, the majority of the court held that a “disease of the mind” means “any illness, disorder or abnormal condition which impairs the human mind and its functioning”. This definition excludes self-induced states, such as those caused by voluntarily consuming alcohol or drugs.

In this case, the judge agreed that the accused suffered from a mental disorder on the basis of two expert opinions that confirmed that the accused was schizophrenic.

Did that Mental Disorder Render the Accused Incapable of Appreciating the Nature and Quality of the Act?

In some cases, the accused may be so delusional that they are unaware of appreciating their actions. For example, some cases may involve a belief that the accused is fighting aliens or protecting people they are in fact harming.

In this case, the accused made statements to the police stating he wanted to turn himself in and that his intention was to kill the accused. The judge found that the accused was capable of appreciating the nature and quality of his act.

Did that Mental Disorder Render the Accused Incapable of Knowing the Act was Wrong?

In R v Chaulk, a 1990 decision of the Supreme Court of Canada, the majority of the court held that “wrong” means “morally wrong”, as opposed to “legally wrong”. In R v Oommen, a 1994 decision of the Supreme Court of Canada, the court clarified that “the crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.”

In this case, the judge held that due to the accused’s schizophrenia and delusional beliefs that he had been poisoned by the victim, he did not have the capacity to make a rational choice about the rightness or wrongness of his act.

Conclusion

Ultimately, Mr. Robinson’s client was found not criminally responsible by reason of a mental disorder that made him unable to know the wrongness of his act.

Contact Anthony Robinson & Filkow Law

In any case, from murder to assault to drug trafficking, it is important to have experienced counsel who are knowledgeable and familiar with the most current law. Anthony Robinson and the Filkow Law team have over 50 years of collective experience and is a well-respected criminal law firm. If you are being investigated or have been charged with any type of criminal offence in Vancouver, Richmond, Surrey, Kelowna, or Abbotsfordcontact our office for assistance.

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On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fifth instalment of this paper, outlining evidentiary issues for drinking and driving case law examples in BC.

The following is an excerpt regarding evidentiary issues surrounding samples, statements and disclosure:

Admissibility of Result of Analysis s. 320.31(7)

Subsection 320.31(7) states that voluntarily providing a sample of breath, blood, urine, sweat or other bodily substances may be used as evidence against the individual without notice. The individual need not be warned that they did not need to give the sample, or that the sample may be used as evidence against the individual. This provision has yet to be constitutionally challenged.

Admissibility of Statement s. 320.31(9)

Subsection 320.31(9) provides that a statement compelled by law is admissible for the purpose of justifying a demand for breath or other bodily samples. The section states:

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

This provision was constitutionality challenged in R v Korduner, 2021 ABPC 83 an Alberta lower court decision. In Korduner, the accused was involved in a motor vehicle accident. On the way to the hospital after the accident, the accused made statements to a police officer in the ambulance. Those statements were compelled under the Traffic Safety Act and were used as evidence against the accused on a charge of impaired operation and refusing a breath demand.

The accused argued that section 320.31(9) of the Code violated sections 7, 8, 9 and 10(b) of the Charter. The accused relied on the “use immunity” principle to argue a conveyance operator involved in an accident is protected by the principle against self-incrimination. Following the precedents in R v White, [1999] 2 SCR 417, R v Powers, 2006 BCCA 454, R v Soules, 2011 ONCA 429, and R v Porter, 2015 ABCA 279 the court in Kroduner concluded s. 320.31(9) violated section 7 of the Charter. The court stated:

[50] Section 7 of the Charter provides protection for individuals who are required to report an accident. I have already found in Voir Dire #2, that the Accused/Applicant’s statements to the officer were statements compelled by section 71 TSA and that the Accused/Applicant had an honest and reasonable belief that she was statutorily compelled to answer his questions, and thus the principles of White were engaged and those statements provided are protected from any use in subsequent criminal proceedings. Per the reasoning of Powers, Soules, and Porter, use of the compelled answers are not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.

[51] Section 320.31(9) specifically allows for such a compelled statement to be used to justify a breath demand. The portion of section 320.31(9) dealing with a statement “compelled under a provincial Act” goes directly against the reasoning in White, Powers, Soules, and Porter. It is clear that the Accused/Applicant’s section 7 Charter rights are engaged. I find the above cited authority is determinative of the issue: that allowing a compelled statement under a Provincial Act, including a compelled statement under the TSA, would infringe the Accused/Applicant’s section 7 rights against self-incrimination in a manner not in accordance with the principles of fundamental justice. The Accused/Applicant has demonstrated that section 320.31(9) both engages section 7 of the Charter and that the impugned provision is causally connected to the prejudice arising from the infringement of the principle against self-incrimination.9

However, since the Alberta Provincial Court lacks jurisdiction to declare legislation unconstitutional, the court limited the unconstitutional finding to the accused. Further, the court clarified that the finding was contingent on a section 1 Charter hearing, which to date has not been heard.

Disclosure

The Crown’s disclosure obligations with respect to the proper functioning of the Approved Instrument have now been codified in s. 320.34(1). The prosecutor must disclose information about any breath samples provided pursuant to subsection 320.28 including:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

Pursuant to s. 320.34(2) the accused may apply to the court for a hearing to determine whether further materials should be disclosed regarding the proper functioning of the Approved Instrument. The application must be in writing and set out detailed particulars of the information the accused seeks to have disclosed and the likely relevance of that information to determining whether the Approved Instrument was in proper working order (see s. 320.34(3)). The disclosure application hearing must be held at least 30 days before trial.

If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.

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On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fourth instalment of this paper, explaining the increased penalties for drinking and driving, including dangerous operation of a motor vehicle causing death.

Increased Penalties for Drinking and Driving

The following is an excerpt regarding some of the increased penalties for a conviction of a criminal driving offence:

Mandatory minimum sentences now apply to dangerous operation causing bodily harm and causing death as well as fleeing the scene of an accident causing bodily harm and death.

There are now tiered fines for having a BAC over certain thresholds. A first conviction for having a BAC equal to or exceeding 120mgs% but less than 160mgs% will result in a minimum fine of $1500. If the BAC is greater than 160mgs%, the minimum fine is $2000. The minimum fine for a first offence for refusing to provide a breath sample is doubled to $2000.

The maximum jail sentence for impaired driving and refusal to provide a sample increased from 5 years to 10 years if prosecuted by indictment. This will result in automatic deportation for convicted foreign nationals or permanent residents.

Driving prohibitions under the Code for impaired driving, over .08 and refusal are:

  • For the first offence, a minimum of 1 year to a maximum of 3 years (plus any period of imprisonment).
  • For the second offence, a minimum of 2 years to a maximum of 10 years (plus any period of imprisonment).
  • For each subsequent offence, a minimum of 3 years with no maximum (plus any period of imprisonment).

There are also mandatory prohibitions under the British Columbia Motor Vehicle Act for Criminal Code driving convictions.

Section 320.22 sets out aggravating features that the court must consider on sentencing. The factors are:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;

(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;

(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;

(d) the offender was being remunerated for operating the conveyance;

(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;

(f)  the offender was operating a large motor vehicle;[1] and

(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

This list of aggravating factors is not exhaustive.

A first offence for over .08 with a BAC below 120 mgs% is $1000. A first offence with a BAC in excess of 120mgs% carries a mandatory increased fine ($1500 if the readings are between 120 and 160 mgs% and $2000 if more than 160 mgs%). Therefore, for first offenders, the aggravating feature of having a BAC in excess of 120mgs% is already accounted for by the mandatory minimum sentence. However, this aggravating feature is not accounted for for subsequent offences or if bodily harm or death is involved.

[1] Cases that have considered whether a vehicle is a large motor vehicle include: R v Hillier, 2020 CanLII 85560 (NLPC) at paras 33-34 (Silverado truck); R v Sivakumaran, 2021 ONCJ 307 at paras 37-38 (Ford pickup truck); R v Caines, 2019 ONCJ 348, at para 26 (Dodge Ram pickup truck); R v Saxby, 2006 ABPC 201 at para 2, (Kenworth tractor); R v Dhadwal, 2012 ABPC 349 at paras 5, 25 (unspecified truck); R v Fairchild, 2017 ONCJ 658 at paras 1, 30 (Ford Escape SUV); R v Burger, 2015 ABPC 224 at paras 1, 68 (Semi-truck); R v Hallock, 2014 ABPC 232 at para 22 (Ford F150); and R v Bagri, 2016 BCCA 272 at paras 7, 17 (2003 Volvo tractor truck weighing 8575kg).

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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 court 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 in court.

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 court 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 in court 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.

Types of Witnesses In Court: Conclusion

Understanding the role of each court 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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