Sep 24, 2021
Witnesses giving evidence or testifying in court is a fundamental part of the criminal justice system. A single witness can make or break a case.
Types of witnesses in a criminal matter
There are generally three kinds of witnesses: (1) eyewitnesses, (2) expert witnesses and (3) character witnesses. Eyewitnesses testify as to what they saw or heard. For example, if Mr. Jones saw someone break into a home, Mr. Jones would be an eyewitness who could give evidence about who and what he saw. Similarly, if Ms. Jones heard the sound of breaking glass, Ms. Jones would be an eyewitness who could provide evidence about what she heard. Both the prosecution and the defence can call an eyewitness to give evidence. After a witness has given their evidence, the other side will have an opportunity to cross-examine that witness.
Expert witnesses provide an opinion on an issue that is beyond the experience and knowledge of the judge or jury—for example, the diagnosis of a mental disorder or the cause of a motor vehicle accident. A judge must qualify expert witnesses before they are allowed to testify. Expert witnesses cannot give evidence as to whether they think an accused person is innocent or guilty, but their opinion can strongly impact the judge or jury.
Character witnesses may be called to speak to the good or bad character of a person. Character witnesses do not give evidence regarding the incident itself but rather their knowledge of a person’s reputation regarding certain character traits, such as honesty or morality. Generally, the Crown is prohibited from adducing evidence about an accused person’s character unless the accused brings it up first. For example, if Mr. Jones is accused of fraud, he might say that he would never commit a fraud because he is such an honest person. This would open the door for the Crown to bring in their own witnesses as to Mr. Jones’ bad character.
What qualifies a witness?
There are few qualifications for witnesses. A witness must be able to understand the nature of an oath or solemn affirmation and communicate evidence. In cases where a witness does not understand an oath or solemn affirmation, by reason of mental disorder or otherwise, they can still testify by a promise, to tell the truth. If a witness is 14 years or younger, they must be able to understand and respond to questions and promise to tell the truth.
What qualifies an expert witness?
Expert witnesses are subject to more qualifications than ordinary witnesses. The proposed expert witness must:
- be relevant;
- be necessary to help the judge or jury;
- not be excluded by any other rule of evidence; and
- must be “properly qualified.”
The necessity of an expert will depend on whether the opinion is outside the realm of ordinary human experience. Common areas where experts are required include:
- accident reconstruction;
- alcohol or drug analysis;
- injury causation;
- cell phone towers;
- digital analysis (cellphones, computers, etc.)
- social science
- mental health; and
The judge makes the final decision about whether an expert is qualified or not based on their education, training and experience.
What qualifies a character witness?
There are no special qualifications for character witnesses. If you are giving evidence of the accused’s character, you can only give testimony as to the general reputation of the accused for a certain character trait. Common traits are honesty and morality.
For example, if Mr. Jones is giving evidence about the character of the accused, he might testify to the following:
- Mr. Jones’ own credibility and reputation;
- Mr. Jones’ relationship and connection to the accused;
- how Mr. Jones knows the general reputation of the accused in the community; and
- the reputation of the accused is regarding a particular character trait.
Mr. Jones cannot give evidence about his personal opinion or specific good acts the accused has performed in the past unless those acts are demonstrative of the relevant character trait.
What if I incriminate myself in someone else’s trial?
As a witness, you can be compelled to answer a question even if it may incriminate you or establish your liability in a civil proceeding. However, that compelled testimony cannot be used in another proceeding against you except for prosecuting perjury or giving contradictory evidence. For example, if Mr. Jones testified that he remembered witnessing an assault because it happened near his favourite bar, and he had just finished drinking five beers before driving past the crime scene, the Crown cannot use that admission as evidence against Mr. Jones in a drinking and driving case against Mr. Jones. However, if there was an impaired driving case against Mr. Jones, and he testified that he only had one glass of wine, he can be cross-examined on his testimony from the other proceeding to show that he is not credible or deliberately gave a false statement under oath or both.
What if the accused is my spouse?
Every witness can be compelled to testify – even if the accused is their spouse. However, no person is required to disclose any communication made to them by their spouse during their marriage. For example, Ms. Jones could be compelled to answer questions about whether she saw her husband, Mr. Jones, damage their neighbour’s car. Ms. Jones could not be compelled to answer questions about whether Mr. Jones discussed his plans to damage their neighbour’s car with her.
Understanding the role of each witness is a vital part of trial preparation and strategy. The lawyers at Filkow Law have over 50 years of experience dealing with all types of witnesses. If you are in need of legal assistance, please feel free to give us a call.
Vancouver drug decriminalization is a heavily contested topic amongst city officials. In response to the alarming rise of overdoses in British Columbia, the municipal government of Vancouver recently submitted a request to the federal government to decriminalize the simple possession of illicit drugs within the city of Vancouver.
The Minister of Health’s Power to Exempt Certain Controlled Substances
The Minister of Health has the authority, pursuant to section 56(1) of the Controlled Drugs and Substances Act, to exempt any substance if the Minister determines it is necessary for medical or scientific purposes or determines it is in the public interest. Section 56(1) was originally legislated to support the advancement of medical and scientific research. Now, the focus of the request is the public interest. If the Minister determines it is in the public interest and makes an exemption, then it would not be an offence under the CDSA to possess those exempt substances.
What Kinds of Drugs And How Much?
The proposal seeks an exemption for opioids, including heroin, fentanyl and other powder street opioids, as well as cocaine, crack cocaine and amphetamine. These are the drugs most commonly involved in the current opioid overdose crisis.
- Opioids (i.e. heroin, fentanyl, and other powder street opioids): 2 grams
- Cocaine: 3 grams
- Crack Cocaine: 10 rocks or 1 gram (1 rock = 0.1 grams)
- Amphetamine: 1.5 grams
Vancouver Drug Decriminalization: How Drastic is the Change?
While Vancouver is taking an initiative to prevent and mitigate the negative impacts associated with the overdose crisis, it is important to remember that decriminalization is not legalization. The proposal is limited to simple possession. The exemption does not apply to commercial purposes such as possession for the purpose of trafficking.
Even before Vancouver’s proposal, the number of charges recommended for simple possession has diminished over the years. Possession charges are certainly less common than for more serious offences. The list below outlines the number of charges the Vancouver Police Department recommended for simple possession over the past 12.5 years:
- 2008: 476 charges for simple possession
- 2009: 224
- 2010: 141
- 2011: 90
- 2012: 65
- 2013: 70
- 2014: 48
- 2015: 65
- 2016: 43
- 2017: 30
- 2018: 21
- 2019: 16
- 2020: 10 (January to June 2020)
Given the significant decrease in the number of charges recommended for simple possession, the proposal does not bring about a drastic change for drug offences in the city of Vancouver. Nevertheless, the proposal is a step towards the more general decriminalization of controlled substances. It may also reduce the stigma associated with drug use.
May 05, 2021
A question that comes up more and more in recent years is, can the police unlock your phone if you’re under arrest? The development of technology, in particular the ubiquitous presence of smartphones, creates issues not previously dealt with by the courts and legal scholars. Requiring someone to provide passwords to the police is one such example of a novel legal problem. The Ontario Court of Justice in R v Shergill recently answered whether the court, through an assistance order under section 487.02 of the Criminal Code, can lawfully require an arrested individual to unlock encrypted data to aid an investigation.
Are Police Allowed to Access Your Data?
Police can and will confiscate your phone if you are arrested. If a person’s device is unlocked upon arrest, the police may in some circumstances lawfully retrieve stored data. However, when the device is locked, the police may not be able to access any information. Lawful seizure of the device alone—without access to stored data—provides little to no investigative value. In limited circumstances, an assistance order may force an individual to participate in the police search so that the investigation is more meaningful. According to Shergill, this power does not extend to an accused person.
This is largely because the data is not accessible without participation of the accused. Trying to obtain encrypted information any other way would expend too many resources or may even destroy the seized device. Although the password itself may not be used as evidence against someone, the inculpatory effect of providing encryption keys in and of itself makes password compulsion unconstitutional. An assistance order against an accused violates the person’s rights including the presumption of innocence, right to silence and right against self-incrimination.
Individual Rights vs Public Interest
The court in Shergill also distinguished password compulsion from other forms of orders related to the creation of physical evidence (e.g., DNA and breath samples). Physical evidence can be obtained through other means. An encryption key, however, requires communicating a thought in the person’s head. The key cannot be revealed unless the person utters the characters. In Canada, the protection of freedom of speech extends to encryption keys, even when it may or may not contain information vital to police investigation. Balancing the public interest in prosecution against an accused’s liberty interests, Shergill sided with protecting individual rights.
This decision has not been appealed or otherwise challenged by other jurisdictions. With emerging technological advancements, the Canadian courts have made it clear that while the police may acquire search warrants against individuals and seize items, access to information within the seized devices are not automatic.
For more information on search of password-protected devices, or to obtain effective legal representation in unlawful search and seizure, contact us at Filkow Law – 604-558-8778. If you find yourself in need of a criminal defence lawyer, call immediately.
Jan 09, 2021
Recently, the Supreme Court of Canada issued a landmark decision relating to the imposition of conditions on release (i.e., bail conditions) and breaches of those conditions.
Generally, to be convicted and found guilty of a criminal offence a person must commit a wrongful act – the actus reus – and must have the requisite guilty mind to commit that wrongful act – the mens rea. However, the law recognizes that there are two types of mens rea – subjective and objective.
Subjective mens rea is where a person is responsible for committing the crime if they intended, knew, or were aware of what might happen because of their wrongful act.
Objective mens rea is where a person did not mean to do anything wrong but is nevertheless responsible for committing the wrongful act. In other words, objective mens rea looks at what an ordinary or reasonable member of society would have done in the same situation.
Prior to the decision in Zora, courts throughout Canada disagreed on the mens rea to apply to breaches of bail conditions. However, in Zora, the SCC confirmed that the mens rea to be applied for breaching a bail condition was subjective. This means that the Court, in deciding the guilt or innocence of the accused person alleged to have breached a bail condition, must look at what that person actually knew or was aware might happen as a result of committing the breach.
In addition to resolving the issue of objective versus subjective mens rea for breaches of bail conditions, the Supreme Court took the opportunity to revisit the purpose and imposition of bail conditions. For decades prosecutors would seek, and Judges would consider and often impose many conditions to an accused’s person release or bail. The Supreme Court of Canada in Zora found this was the wrong practice and has transformed this unjust tradition. Rather, The Supreme Court found that normally there should not be any conditions imposed on bail. There are many reasons for this including an accused’s presumption of innocence, unnecessary restrictions on a person’s liberty and the impact of pre-trial conditions on vulnerable populations. In other words, the default form of bail for most crimes is release on an undertaking. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under section 515 of the Criminal Code. These include securing the accused ‘s attendance in court, ensuring the protection or safety of the public and maintaining confidence in the administration of justice.
The Zora case has changed things. Bail conditions including no contact, no go, reporting, no alcohol, curfew and any other conditions must be justified and necessary.
For more information on allegations of breaching bail conditions or for assistance in changing bail conditions, contact our office and speak with one of our experienced lawyers.
Apr 08, 2020
Cases of domestic violence can happen in any family at any time. Domestic violence is the physical or sexual assault, or the threat thereof, in any family relationship: spousal, intimate partner, parent or child. The full impact of COVID-19 places additional and tremendous stresses on family relationships. These stressors include health and safety concerns, isolation and containment, financial and psychological stresses and increased alcohol consumption.
Once an allegation of domestic violence is reported to the police or RCMP or other authorities (teacher, social worker, doctor etc.), it is not up to the victim or the accused or any other family member to stop the legal process.
Domestic violence cases are appropriately treated very seriously in the criminal justice system. The police have designated units and resources assigned to domestic cases. The Prosecution has teams specializing in domestic violence cases. There are different charges or criminal code provisions that may apply – Assault, Sexual Assault, Threatening, Harassment, Weapons, Breaches, and Homicide.
For an individual accused of domestic assault or of family violence, a lawyer should be retained (at the earliest opportunity) to protect an individual’s legal interests and rights in the criminal justice system. An accused person must be informed of the steps in the prosecution, the burden of proof and the presumption of innocence. An individual must understand all his or her rights and options in terms of bail and defences and the various methods domestic violence cases can be resolved
A domestic violence victim may also consider retaining a lawyer to assist with the criminal justice system and the legal issues involved. For victims of domestic violence, there are a number of government and volunteer resources and support. However, accessing these resources is now more difficult given the restrictions on social distancing.
Our firm acts as counsel on a daily basis to individuals who are facing domestic assault charges and who are complainants and family members of domestic assault. We deal with the police and RCMP, Crown prosecutors, victims’ services and other government ministries as necessary. The fact is we are seeing more domestic violence cases in the current heightened circumstances of family pressures.
Every individual and family dynamic is different as is each case and set of circumstances. We are in the middle of a serious global health pandemic with one of its consequences being the stresses on family relationships. In cases where there are criminal charges or legal issues relating to domestic violence, an experienced lawyer should be retained early on to advise in confidence and to assist with the successful legal resolution of the domestic violence case.
Mar 19, 2020
Filkow Law recognizes the evolving situation surrounding COVID-19. Filkow Law remains open to our clients and to assist with new legal cases, including all criminal, driving and ICBC matters.
Filkow Law will conform to the government recommendations for social distancing and we will work remotely as necessary for the benefit of our clients, staff and community. Our lawyers are available by telephone and/or by email and and/or in-person appointments can be arranged as needed.
We are pleased to assist you with your legal matters.
Filkow Law welcomes criminal defence lawyer Paula Cooper to our legal team. Paula was called to the bar in 2019 after completing her articles at a Surrey criminal defence firm. She primarily practices in the area of criminal law and driving offences.
In 2017, Paula received her law degree from the University of Alberta. While in law school, she competed in the Laskin Moot Court competition and volunteered with Student Legal Services in Edmonton.
Prior to law school, Paula earned a Bachelor of Arts degree in criminology at Simon Fraser University in 2014, and an Associate of Arts degree in creative writing from Douglas College in 2011.
In her spare time, Paula volunteers with various community theatre organizations around the Lower Mainland.
If you are charged with a criminal offence, call Paula at Filkow Law to assist you.
Filkow Law welcomes articled student Michael Scott to our legal team. Michael is finishing his articling year at Filkow Law and will be called to the bar in 2019. Michael has a strong background in civil litigation, and is familiar with civil procedure in both the Provincial and Supreme Courts of British Columbia.
At Filkow Law, Michael assists on various files including traffic tickets, driving offences, ICBC issues, and criminal matters. Michael is focused on resolving client issues favourably, practically, and expeditiously.
Michael obtained a Bachelor of Arts in Political Science from the University of British Columbia, while being active in several student leadership organizations. Michael pursued his law degree at Thompson Rivers University in Kamloops.
In his spare time, Michael plays goalkeeper in recreational soccer leagues. He also enjoys playing rhythm guitar, bass guitar and backup vocals for his band from law school.
If you have a legal matter, call Michael at Filkow Law to assist you.
Oct 28, 2019
The Ontario Court of Appeal recently criticized a trial judge for his conduct throughout a trial involving the death and alleged murder of a longboarder, Ralph Bisonnette, by a taxi driver, Adib Ibrahim. This post will examine what the trial judge did that drew criticism. While the judge’s behaviour did not directly result in a new trial it opens up an interesting discussion on the proper conduct of a judge during the course of any trial at all, let alone a stressful murder trial. This post will also examine an appeal on the grounds of a reasonable apprehension of bias.
The Mistrial Application
On the 14th day of the trial, defence counsel made an application for a mistrial based on a number of different actions performed by the judge throughout the course of the trial. Defence counsel argued that the trial judge’s conduct demonstrated a reasonable apprehension of bias against Mr. Ibrahim.
The test in Canada for establishing a reasonable apprehension of bias is whether “a reasonable person, properly informed and viewing the matter realistically and practically conclude that the decision-maker could decide the case fairly”. In other words, would a reasonable person think the judge could decide fairly?
In support of their application, defence had prepared a number of points illustrating the poor conduct of the trial judge that they argued thereby established a reasonable apprehension of bias:
- The trial judge complained three times about the defence not having a disclosure obligation;
- The trial judge required defence counsel to vet his cross-examination of witnesses ahead of time with the Crown and the court;
- The trial judge accused defence counsel of “trial by ambush” and expressed disappointment in the conduct of defence counsel;
- The trial judge interfered with the cross-examination of a Crown witness;
- The trial judge continually shook his head with disapproval in front of the jury while defence counsel questioned witnesses;
- The trial judge suggested, in the presence of the jury, that defence counsel was wasting time by cross-examining witnesses on videotaped statements, rather than from prepared transcripts;
- The trial judge interfered with the examination of witnesses on a voir dire;
- The trial judge accused defence counsel of attempting to engender the sympathy of the jury through inadmissible evidence;
- The trial judge yelled at defence counsel on numerous occasions;
- The trial judge glared at defence counsel, both in front of and in the absence of the jury; and
- The trial judge constantly interrupted defence counsel during submissions.
In sum, the trial judge was yelling, glaring, interrupting, and otherwise interfering with defence counsel. These allegations were supported by affidavits from defence counsel and employee of defence counsel’s law firm.
After hearing some of the oral submissions on his alleged misbehaviour, the trial judge interjected and stated that he disagreed with virtually all of defence counsel’s points. The Court of Appeal noted that the trial judge frequently made lengthy comments during defence counsel’s submissions, while Crown was permitted to make their submissions without interruption.
Not only did the trial judge deny defence counsel’s allegations, stating “I categorically do not accept that I have yelled at you… [my] normal voice is a very loud and deep voice”, but he also accused defence counsel of “an ethical breach” and of professional misconduct and sharp practice contrary to the Canadian Bar Association’s Code of Professional Conduct.
In the end, the trial judge dismissed the application for a mistrial. The Court of Appeal noted that the trial judge’s written reasons for refusing defence counsel’s mistrial application were remarkably long: 64 single-spaced pages with 49 footnotes. The Court also noted that, throughout his reasons, the trial judge’s displeasure towards defence counsel was “palpable” and even insulting at times.
While the Ontario Court of Appeal ultimately allowed a new appeal on the ground of improper instructions to the jury and dismissed the appeal on reasonable apprehension of bias, they provided substantial commentary on the issue of bias. In particular, they stated that they were concerned with how the mistrial application was handled
The Court of Appeal noted the following:
- The mistrial application was conducted in an “injudicious manner”;
- When a trial judge feels compelled to intervene they should consider courtesy and restraint;
- Allegations regarding a trial judge’s verbal and non-verbal conduct during a trial are serious;
- The duty of the trial judge to maintain composure during the course of a trial is important;
- The trial judge’s conduct was not a model of “judicial decorum”;
- The trial judge is responsible for reducing the stress of conflict;
- The trial judge should not to exacerbate conflict through harsh words, a raised voice, or distracting and hostile non-verbal communications.
However, despite these criticisms, the court did not believe that there was a significant impact to the overall fairness of the trial and that these issues, while improper, did not give rise to a reasonable apprehension of bias.
The decision in this case shows that some tensions and emotions can run high during a criminal trial and result in some conflict between defence counsel and the trial judge. While a trial judge has a duty to exercise courtesy and restraint, a substantial amount of discretion is given to the trial judge on how to conduct a trial. The Court of Appeal clearly sent a message to trial judges by criticizing the conduct of the trial judge in this case, but in the end they would not have concluded that his behaviour gave rise to a reasonable apprehension of bias. Although reasonable apprehension of bias is a possible ground of appeal, it is clear from this decision that the bar for establishing bias based on the conduct of a judge can be quite high.