Criminal Law Blog
Criminal Law Blog
Mar 14, 2023
What Is An Aggravated Assault?
Aggravated assault is the most serious assault charge someone can face in Canada. It is an assault where the complainant was wounded, maimed, disfigured, or their life was endangered.
What is the difference between an assault and an aggravated assault?
All criminal offences are made up of elements (i.e., ingredients). The elements of an aggravated assault are the same as for a regular assault, but the result of the assault is different. With a regular assault, the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered.
What is the legal definition of an assault?
The elements of an assault are that the accused intentionally or recklessly applied force to the complainant without the complainant’s consent. Assaults where the complainant suffered no bodily harm and were not wounded, maimed, disfigured, or had their life endangered are sometimes also referred to as “simple assaults”. For more information on simple assaults, click here.
What is an assault causing bodily harm?
Assault causing bodily harm is an upgraded version of assault. It has the same elements of assault, except the complainant suffered “bodily harm”. Bodily harm means the complainant suffered harm that was more than transient or trifling.
When does an assault become an assault causing bodily harm?
There is no clear dividing line between harm that is transient or trifling and harm that goes beyond that. In practice, BC prosecutors will charge an accused with assault if the complainant alleges they suffered no more than a few bruises or scratches.
If an assault resulted in bleeding, significant bruising, or lumps, BC prosecutors are more likely to charge the accused with assault causing bodily harm. If the complainant had concussion symptoms, that can also be charged as an assault causing bodily harm. The meaning of “bodily harm” includes brain injuries or psychological damage, as long as they are more than transient or trifling.
What is the difference between assault, assault causing bodily harm, and aggravated assault?
Aggravated assault has the same elements as assault, except the complainant was also wounded, maimed, disfigured, or their life was endangered.
The difference between assault, assault causing bodily harm, and aggravated assault is in the result (i.e., outcome) of the assault. The more the complainant was hurt by the assault, the more likely the accused will be charged with an upgraded version of assault (either assault causing bodily harm or aggravated assault).
Are there other upgraded versions of assault, apart from assault causing bodily harm and aggravated assault?
There are two other upgraded versions of simple assault, but the differences between them and a simple assault do not depend on the result of the assault. Instead, they depend on the circumstances of the assault. These are assault with a weapon and assault by choking.
An assault with a weapon is any assault where the perpetrator carried, used, or threatened to use a weapon. A weapon is any “thing”, as long as it was used to assault someone with. A weapon could be a shoe, a plastic cup, a piece of clothing… anything. If it’s a thing, it can be a weapon and meet the legal definition of “assault with a weapon” provided the thing was used as a weapon.
An assault by choking is any assault where the accused is alleged to have choked the complainant. It does not depend on the result of the assault, but on the act itself.
When do people get charged with aggravated assault?
Although there are four outcomes that meet the definition of aggravated assault (wounding, maiming, disfiguring, or endangering life), the outcome that will most commonly meet the definition of an aggravated assault is wounding. That’s because someone who was maimed, disfigured, or had their life endangered will typically also have been wounded.
In practice, BC prosecutors will charge aggravated assaults where the harm suffered by the complainant is alleged to have been broken bones, broken cartilage, cuts requiring stitches, or worse.
How does the law define “wounding”, “maiming”, and “disfiguring”?
The legal definition of wounding is “a break in the continuity of the whole skin that also constitutes serious bodily harm”. Serious bodily harm means “any hurt or injury that interferes in a substantial way with the integrity, health or well-being of the complainant”.
The legal definition of maiming is “to inflict an injury that deprives a person of the use of a limb or renders the victim less able to defend themselves.” This means that breaking someone’s bones or otherwise making them unable to use their body properly means the harm they suffered was enough to count as an aggravated assault.
The legal definition of disfiguring is “impairing or injuring the beauty, symmetry, or appearance of a person”. Although the word “disfigure” implies an injury to the face, a facial injury is not necessary for its legal definition. The injury must simply be persistent and harmful to a person’s appearance. That means the legal definition of aggravated assault can be met without breaking skin (no wound) or injuring bodily functions (no maiming) if it still harmed the victim’s long-term appearance (i.e., disfigured them).
How does the law define “endangering life” for the purpose of an aggravated assault?
There is no elaborate legal definition of “endangering life” for the purpose of an aggravated assault. This is a fact-specific question that will depend on the circumstances of each case.
One example where someone could be found guilty of aggravated assault despite neither wounding, maiming, or disfiguring the complainant is if they discharged a firearm near the complainant and the bullet missed. There would be no actual harm to the complainant, but the accused would have endangered their life.
Of course, if someone shoots somebody with a firearm, they could also be charged with the offence of discharging a firearm with intent to endanger life. However, for someone to be guilty of that offence the prosecutor must prove they intended to endanger life. An accused could be guilty of aggravated assault for discharging a firearm near a complainant, even if they never intended to endanger the complainant’s life. If the accused was reckless, that is enough. This means it is easier for a prosecutor to prove an aggravated assault than to prove the offence of discharging a firearm with intent to endanger life.
How does intention play a role in aggravated assault?
In general, the law does not criminalize acts that a person does not intend. For someone to be guilty of an assault, they need to have intentionally or recklessly applied force to another person. “Reckless” means they knew they might apply force to another person but took that risk anyway.
Upgraded versions of assault also require some intention with regard to the result of the assault. For someone to be guilty of aggravated assault, the complainant must not only have been wounded, maimed, disfigured, or had their life endangered, but a reasonable person in the accused’s shoes would have also foreseen the risk of inflicting bodily harm to the complainant.
This mental exercise can be confusing, but it is a very common legal test. We call it an “objective test”, which means that instead of asking whether the accused foresaw the risk of harm from their actions, we ask whether a reasonable person in their shoes would have foreseen the risk of harm from their actions. If the legal test were about what the accused actually foresaw (as opposed to a reasonable person in their shoes), then we would call it a “subjective test”.
So, there are two aspects to intention with aggravated assault:
- Intent regarding the assaultive act; and
- Intend regarding the result of the act.
For the assaultive act, the accused must have intentionally or recklessly applied force to the complainant. For the result of the act, a reasonable person in the accused’s shoes must have foreseen the risk of bodily harm from applying force to the complainant.
What should I do if I’m being charged with aggravated assault?
You should retain a lawyer right away. All violent offences are serious, but aggravated assault is the most serious assault charge in the Criminal Code that someone can face. The charge carries a maximum punishment of 14 years in jail. If you are guilty of aggravated assault, it is not possible to avoid a criminal record. Lengthy jail sentences are also common.
The lawyers at Filkow Law are experts at criminal law and have vast experience defending assault charges. We can help. Do not hesitate to call us right away.
Filkow Law has the pleasure of being voted a top-three Richmond Criminal Defence Lawyer and top-three DUI Laywer. Filkow Law has been serving a diverse community in the Richmond area for over 20 years. Lawyers and staff at the firm speak Mandarin, Cantonese, Punjabi, Russian, French, Serbian, Polish and German. The lawyers at Filkow Law specialize in criminal charges, driving cases, and ICBC cases.
Over the past decade, Filkow Law Richmond has been recognized for its expertise in multiple practice areas. Filkow Law has been voted the best law firm in Richmond for the past 8 years (2014, 2015, 2016, 2017, 2018, 2019, 2020, 2021 and 2022). Filkow Law has consistently been voted as the top criminal and driving law firm in Richmond. Filkow Law was also rated one of the Top Three Richmond DUI Lawyers in 2021, 2022, and 2023. Filkow Law was also rated one of the Top Three Richmond Criminal Defence Lawyers in 2023.
Need A Criminal Defence Lawyer In Richmond? Call Filkow Law
Filkow Law is a highly regarded law firm with over 25 years of experience. Clients benefit from Filkow Law’s deep and broad knowledge and expertise of criminal law, driving law and the criminal justice and court system. Filkow Law is known for its skilled advocacy, its highly accessible culture, its signature strategic approach to every case, and the exceptional results achieved.
The lawyers at the firm have excellent reputations with the police, prosecutors and the courts across British Columbia. In addition to their courtroom skills, the lawyers at Filkow Law advocate for and achieve decisive victories away from the public eye, often before the criminal or driving case ever sees a day in court.
Filkow Law looks forward to continuing to deliver excellent outcomes for its clients. Please do not hesitate to contact any of the lawyers at the firm for a consultation.
Feb 01, 2023
Drug Offence Lawyers: Why You Need One
A drug conviction can have lifelong implications.
Drug related offences, particularly trafficking and possession for the purpose of trafficking, are some of the most heavily resourced police files. Police receive extensive training and are provided unlimited resources to utilize a variety of investigative techniques for drug cases. Some of these techniques include:
- Confidential informants
- Undercover officers
- Trafficking devices
The accused is often faced with a large amount of evidence against him/her. The drug case looks bad and the penalties and implications can be very serious.
Drug Offence Lawyers: Why You Need A Lawyer For A Drug-Related Offence
As drug cases in British Columbia have many layers, a wide variety of legal issues arise. It is important to go through all the evidence with a fine tooth comb and flush out the different issues.
Drug cases require strong preparation, excellent strategy, and more importantly, the right lawyer and legal team.
We have recently achieved some remarkable results for our clients with drug charges. Our extensive experience on drug cases has allowed us to develop specialized knowledge and a specific approach to handling these types of complex cases. If you need a drug offence lawyer in BC, call Filkow Law today.
Dec 13, 2022
Sexual Assault FAQ: Consent Laws In Canada
The law of sexual assault in Canada can be surprising. If you polled members of the public about whether certain scenarios amount to sexual assault, many would wrongly guess that something that isn’t sexual assault is, or vice-versa. Here are five laws of sexual assault and consent law in Canada you should know.
Five Consent Laws In Canada
1. Consent must be continuous throughout the sexual activity
At first glance, this doesn’t seem like a surprising fact about the law of sexual assault. If someone consents to sex with another person, then revokes it partway through, the other person must stop having sex with them. Otherwise, the other person has committed a sexual assault. None of this is counterintuitive.
However, what if someone were to give advanced consent to having sexual acts performed on them while they’re unconscious? They could even have a particular sexual fantasy about having sex acts performed on them while sleeping, or about being woken up by a sex act.
It turns out that Canadian law still says that’s sexual assault. It’s simply illegal to perform a sexual act on someone who is in a state where they can’t consent to sex, like being unconscious. There are no exceptions, not even if someone gives their sexual partner consent in advance.
2. Apparent consent is not necessarily actual consent
Canadian law says that in certain circumstances, a person can seem to consent to sex, but their consent wasn’t true consent. In such cases, the seemingly consensual sex was actually a sexual assault.
One example of this is if someone is in a position of authority and uses it to induce another person into consenting to have sex with them. The person in a position of authority doesn’t need to coerce the person below them. It’s enough if they use their position of authority to induce the person below them to consent to sex with them.
Another example of this is if someone has unprotected sex with another person without disclosing to them that they’re HIV positive. Assuming the other person wouldn’t have consented to sex if they had known about their sex partner’s HIV positive status, the HIV positive person is guilty of a sexual assault. The law says that the HIV positive person obtained the other person’s consent by fraud, and therefore the other person never truly consented to sex with them.
The example above might raise concerns about what amounts to fraudulently obtaining consent to sex. The law doesn’t say that a person obtains consent to sex fraudulently because, for example, they lied about their age, income, or sexual history, and had sex partner known the truth they never would have consented to sex with them. The fraud must have put the victim’s health at serious risk or related to the central character of the sex.
3. Consent occurs entirely in a person’s mind
Canadian law says that consent is entirely a matter of what someone was thinking at the time. If they thought “I don’t want to do this”, then they were not consenting to sex, even if they said out loud “this is great, let’s keep going”.
This might seem scary. It suggests that someone could theoretically be accused of sexual assault because their sex partner didn’t want to have sex with them, even though they said the opposite at the time. However, in such a case the person accused of sexual assault would have a defence of honest belief in consent.
Honest belief in consent means that if an accused honestly believed their sex partner was consenting and took reasonable steps at the time to find out if their sex partner was consenting, then they’re not guilty of sexual assault.
4. A drunken consent is still consent
There are some people who agree with the message “if you’re too drunk to drive, you’re too drunk to consent to sex”. This is not the law in Canada, but there is a level of intoxication where a person loses the capacity to consent.
The degree of intoxication required to no longer be legally allowed to drive is not high. In British Columbia, this is only 0.05 mg alcohol in 100 ml of blood. Most people will have blood alcohol levels above that number if they consume three standard drinks within an hour or two.
Having a few standard drinks will certainly be enough to impair someone while driving, but it will not be enough that the law says they can no longer consent to having sex with another person.
A person will be guilty of sexual assault if they have sex with someone so intoxicated that they no longer have the capacity to consent. To reach that level, there should be signs that the intoxication is very high. Examples of the kind of evidence that would support a person’s incapacity to have sex includes vomiting, difficulty standing up, slurred speech, slouching, sleepiness, stumbling, and confusion.
5. No one can bring up a sexual assault complainant’s sexual history at trial
As a starting point, neither the Crown prosecutor nor the defence lawyer is permitted to bring up any sexual history of a sex assault complainant, unless they get permission from the judge first. This might not seem surprising because a sexual assault complainant wouldn’t want their privacy invaded by the trial process, but this rule has a few surprising elements to it.
First, the rule applies both to the defence and the prosecutor. Even though the prosecutor is the one attempting to obtain justice for the complainant, they’re not allowed to bring up a complainant’s sexual history as part of their case. They need permission from the judge first, just like the defence does.
Second, the rule applies to all sexual history, even if the complainant and accused have been married for 40 years and have had many children together. By default, the jury is not allowed to hear about the married couple’s sexual history at all.
Third, there is no parallel rule protecting the privacy of the accused. The Crown can cross-examine them as much as they want on their sexual history, without limit, subject to the usual rules of evidence (e.g., relevance, self-incrimination, etc.).
Fourth, the rule applies to all sexual communication. This means that in a case where an accused and complainant were texting each other sexual things before the incident (e.g., the complainant messaged the accused “I can’t wait to f*** you tonight”), those communications are not admissible in court unless the judge allows it.
Fifth, in the vast majority of cases the judge doesn’t allow the prior sexual history of the complainant to be admitted at trial. The legal test for allowing this kind of evidence to be admitted is high and difficult to overcome for the defence. Even in a case where an accused is alleged to have sexually assaulted a complainant during BDSM, the accused and the complainant’s prior history of engaging in BDSM together is presumptively inadmissible. This could distort the jury’s view of the case because they might hear that an alleged sexual assault occurred in the context of BDSM without knowing the accused and complainant had previously engaged in consensual BDSM. Without that knowledge a jury would be much more inclined to think the accused is guilty because it would be strange to imagine a complainant agreeing to BDSM the very first time they had sex with someone else.
Finally, the rule exists not only to protect the privacy of the complainant, but to guard against the “twin myths” of sexual assault. These myths are that a woman is more likely to have consented to sex because of their sexual history, or that because of their sexual history they’re less worthy of being believed. Canadian law does not trust juries with the twin myths of sexual assault. Instead of judges warning juries not to think badly about the case, they prevent juries from hearing any of the evidence at all.
Consent Laws In Canada: Contact Filkow Law
If you have any more questions surrounding sexual assault or consent law in Canada, call Filkow Law today.
Nov 29, 2022
The police took my stuff, can I get it back?
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.
Oct 25, 2022
What are the possible outcomes of a criminal charge?
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.
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.
Sep 28, 2022
Can I look up criminal cases online in BC?
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”).
Court Date Abbreviations
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.
CWC: Consult With Consult & JIR: Judicial Interim Release
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.
CWI: Compliance With Instructions
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.
WI: Warrant Issued
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.
Criminal Record Search in BC
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.
Need legal assistance? Contact 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.
Jun 24, 2022
British Columbia Drug Decriminalization in 2023
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.
British Columbia Drug Decriminalization 2023
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.
- Methamphetamine, but not its salts.
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.
British Columbia Drug Decriminalization: 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 in British Columbia will allow users to seek and obtain assistance and reduce the number of lives lost to overdoses.
If you are being investigated or have been charged with a drug offence, contact the experienced lawyers at Filkow Law for legal assistance.
May 20, 2022
Understanding Assault Charges in Canada
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 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:
- 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.
- 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 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 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.