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News

Filkow Law welcomes lawyer West Pryde to our legal team. West was called to the bar in 2021 after completing his articles with Filkow Law. He practices in various areas including criminal law, driving law administrative law, as well as civil forfeiture and ICBC insurance matters.

West received his J.D. from the Peter A. Allard School of Law in 2020. He was a clinic head at the Law Students’ Legal Advice Program, where he gave free legal advice at the Carnegie Community Centre in the Downtown Eastside of Vancouver. West was also a caseworker with UBC Innocence Project, where he worked to overturn wrongful convictions.

Prior to law school, West earned a Bachelor of Arts degree in philosophy at the University of British Columbia in 2017.

In his spare time, West enjoys producing electronic music and practicing martial arts.

If you are charged with or being investigated for a criminal or driving offence, call West Pryde at Filkow Law to assist you.

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Vancouver drug decriminalization is a heavily contested topic amongst city officials. In response to the alarming rise of overdoses in British Columbia, the municipal government of Vancouver recently submitted a request to the federal government to decriminalize the simple possession of illicit drugs within the city of Vancouver.

 

The Minister of Health’s Power to Exempt Certain Controlled Substances 

The Minister of Health has the authority, pursuant to section 56(1) of the Controlled Drugs and Substances Act, to exempt any substance if the Minister determines it is necessary for medical or scientific purposes or determines it is in the public interest. Section 56(1) was originally legislated to support the advancement of medical and scientific research. Now, the focus of the request is the public interest. If the Minister determines it is in the public interest and makes an exemption, then it would not be an offence under the CDSA to possess those exempt substances.

Related: Sentencing for Fentanyl Charges in BC

What Kinds of Drugs And How Much?

 

The proposal seeks an exemption for opioids, including heroin, fentanyl and other powder street opioids, as well as cocaine, crack cocaine and amphetamine. These are the drugs most commonly involved in the current opioid overdose crisis.

 

The following list outlines the substances proposed and the maximum amount allowed under the exemption:

  • Opioids (i.e. heroin, fentanyl, and other powder street opioids): 2 grams
  • Cocaine: 3 grams
  • Crack Cocaine: 10 rocks or 1 gram (1 rock = 0.1 grams)
  • Amphetamine: 1.5 grams

Vancouver Drug Decriminalization: How Drastic is the Change? 

 

While Vancouver is taking an initiative to prevent and mitigate the negative impacts associated with the overdose crisis, it is important to remember that decriminalization is not legalization. The proposal is limited to simple possession. The exemption does not apply to commercial purposes such as possession for the purpose of trafficking. 

 

Even before Vancouver’s proposal, the number of charges recommended for simple possession has diminished over the years. Possession charges are certainly less common than for more serious offences. The list below outlines the number of charges the Vancouver Police Department recommended for simple possession over the past 12.5 years:

  • 2008: 476 charges for simple possession
  • 2009: 224
  • 2010: 141
  •  2011: 90
  • 2012: 65
  • 2013: 70
  • 2014: 48
  • 2015: 65
  • 2016: 43
  • 2017: 30
  • 2018: 21
  • 2019: 16
  • 2020: 10 (January to June 2020)

Given the significant decrease in the number of charges recommended for simple possession, the proposal does not bring about a drastic change for drug offences in the city of Vancouver. Nevertheless, the proposal is a step towards the more general decriminalization of controlled substances. It may also reduce the stigma associated with drug use.

Filkow Law is a highly respected criminal and driving law firm with 50 years of collective expertise delivering outstanding results. If you are in need of legal assistance, contact us today.

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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.

Related: Why You Should Never Represent Yourself in Court

After hearing some of the oral submissions on his alleged misbehaviour, the trial judge interjected and stated that he disagreed with virtually all of defence counsel’s points. The Court of Appeal noted that the trial judge frequently made lengthy comments during defence counsel’s submissions, while Crown was permitted to make their submissions without interruption.

Not only did the trial judge deny defence counsel’s allegations, stating “I categorically do not accept that I have yelled at you… [my] normal voice is a very loud and deep voice”, but he also accused defence counsel of “an ethical breach” and of professional misconduct and sharp practice contrary to the Canadian Bar Association’s Code of Professional Conduct.

In the end, the trial judge dismissed the application for a mistrial. The Court of Appeal noted that the trial judge’s written reasons for refusing defence counsel’s mistrial application were remarkably long: 64 single-spaced pages with 49 footnotes. The Court also noted that, throughout his reasons, the trial judge’s displeasure towards defence counsel was “palpable” and even insulting at times.

The Appeal

While the Ontario Court of Appeal ultimately allowed a new appeal on the ground of improper instructions to the jury and dismissed the appeal on reasonable apprehension of bias, they provided substantial commentary on the issue of bias. In particular, they stated that they were concerned with how the mistrial application was handled

The Court of Appeal noted the following:

  • The mistrial application was conducted in an “injudicious manner”;
  • When a trial judge feels compelled to intervene they should consider courtesy and restraint;
  • Allegations regarding a trial judge’s verbal and non-verbal conduct during a trial are serious;
  • The duty of the trial judge to maintain composure during the course of a trial is important;
  • The trial judge’s conduct was not a model of “judicial decorum”;
  • The trial judge is responsible for reducing the stress of conflict;
  • The trial judge should not to exacerbate conflict through harsh words, a raised voice, or distracting and hostile non-verbal communications.

However, despite these criticisms, the court did not believe that there was a significant impact to the overall fairness of the trial and that these issues, while improper, did not give rise to a reasonable apprehension of bias.

Conclusion

The decision in this case shows that some tensions and emotions can run high during a criminal trial and result in some conflict between defence counsel and the trial judge. While a trial judge has a duty to exercise courtesy and restraint, a substantial amount of discretion is given to the trial judge on how to conduct a trial. The Court of Appeal clearly sent a message to trial judges by criticizing the conduct of the trial judge in this case, but in the end they would not have concluded that his behaviour gave rise to a reasonable apprehension of bias. Although reasonable apprehension of bias is a possible ground of appeal, it is clear from this decision that the bar for establishing bias based on the conduct of a judge can be quite high.

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Many people charged with criminal offences decide to plead guilty for a variety of reasons. The Crown may have offered them a lighter sentence if they plead guilty; they might have wanted to spare their loved ones from having to testify; they may not have been able to afford a lawyer or qualified for legal aid and therefore not felt they were in a position to have a trial; or most commonly, they may have simply been guilty and wanted to take responsibility. However, often after a guilty plea is entered in court, there is some delay (of weeks or even months), before the person is sentenced. It is during that delay between guilty plea and sentencing that an accused will often second guess their decision.

This blog is for those individuals wondering: is it too late to change my plea?

If you are one of those people, you will recall when you entered your guilty plea, your lawyer and/or the court would have asked you the following questions:

  1. Do you understand the charges against you? You would have answered, “Yes.”
  2. Do you understand that by pleading guilty, you are waiving your right to a trial? You would have answered, “Yes.”
  3. Is anybody forcing you to plead guilty? You would have answered “No.”
  4. Do you understand that regardless of the sentence being recommended by Crown and/or defence, it will ultimately be up to the judge what sentence you receive? You would have answered, “Yes.”

By going through those questions with you, your lawyer and/or the court were making sure that your guilty plea was voluntary, informed, and unequivocal. If the court had any concerns about your plea being pressured, uninformed, or fickle, you would not have been permitted to plead guilty.

Related: Why You Should Never Represent Yourself in Court

So, what if you change your mind? In order to successfully apply to withdraw your guilty plea, you must prove to the court that your plea was either involuntary, uninformed, or equivocal. In my 5 short years of practice, I have seen each of those three arguments be successful. And there is new law as of 2018 which is binding on all courts which tends to lower the bar. So, while a guilty plea is supposed to be final, and you have no doubt been warned many times that you cannot change your mind once the plea is in, that isn’t exactly true in practice.

1.  The Plea Was Not Voluntary

I was involved in a Manitoba Queen’s Bench case where this argument was made on an application to withdraw a guilty plea to 2nd degree murder. The applicant in that case took the stand and testified that he was threatened by rival gang members while in custody, and forced to plead guilty under the threat of violence. The court accepted his evidence and allowed him to withdraw the plea. He proceeded to a trial.

2.  The Plea Was Not Informed

I am currently involved in a BC Provincial Court case where we are making this argument. My client entered a guilty plea to sexual interference and the sentencing was put over several months. Several witnesses came forward between the time of the plea and the sentencing and provided new statements to police including new information. My client will be testifying to the court that had she had all the evidence to consider before she entered her plea, she would have proceeded to trial. The new case law in this area supports our position.

3.   The Plea Was Equivocal

This argument is appropriate in a case where you can point to the court record to show that when you entered your guilty plea, you did not fully commit to being guilty of the charges. There is recent BC case law considering this argument in which the applicant was successful in withdrawing his guilty plea because he explained that he was suffering from depression and suicidal ideations when he entered his guilty plea, and that when you read the transcript, it was clear that he was not fully committing to being guilty but was conveying a tone of having given up on fighting. His plea was found to have been equivocal.

You will notice that in none of these scenarios was the accused asserting they were not guilty. You do not have to be innocent in order to apply to withdraw your plea. You may in fact be totally guilty of the charges laid. That is not the point. The point is that you have the right to understand the case against you, make full answer and defence, and determine whether or not the Crown can prove their case before you commit to a plea. You have these rights regardless of your guilt or innocence.

Related: “I am Being Arrested by the Police. I Need to Speak to a Lawyer”

In most cases, you will have to find a new lawyer to assist you with any of these three applications to withdraw your plea. The reason is that the court will want to question your lawyer about whether your lawyer believed, based on your discussions with him or her about the plea, that your plea was voluntary, informed, and unequivocal. In fact, you may have a basis to withdraw your plea if your lawyer did not adequately assist you in the process. For example, if your lawyer pressured you into pleading guilty, your plea might be involuntary. Or, if your lawyer did not tell you about important evidence or consequences in your case, your plea may have been uninformed.

Accordingly, the short answer is no; it is not necessarily too late. While you are not allowed to simply “change your mind,” your guilty plea may fall into one of the three categories described. Skillful counsel will be able to assess your situation and help you understand your rights regarding your plea. With extensive experience dealing with these types of applications, our lawyers are happy to assist. If you have entered a guilty plea but are having second thoughts as your sentencing date approaches, do not hesitate to give us a call.

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Filkow Law is pleased to be voted as the Best Richmond Law Firm by readers of the Richmond News for 2018. We also had the pleasure of being voted the Best Richmond Law Firm for 2017, 2016 and 2015. The Richmond location is the longest standing law office location but now Filkow Law has expanded to Vancouver, Surrey and Kelowna.

Filkow Law is well known for its formidable strengths with a highly accessible culture, very skilled advocacy and a signature strategic approach to every case.If English is not your first language, Filkow Law can accommodate you. The languages spoken at the firm are Mandarin, Cantonese, Punjabi, Hindi, French, Russian, Bosnian and German.

Filkow Law has a reputation for producing exceptional results for their clients. The firm’s main focus is criminal defence with particular emphasis on driving, drug, fraud and assault cases but they are now taking on personal injury cases. If you have a legal matter you need assistance with please contact us.

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If you live in the lower mainland, you are well aware of the addiction epidemic that is plaguing our communities. You cannot turn on the news, or social media, or even walk downtown without being reminded that we are facing what is being called the Opioid Crisis.

It goes without saying that drug addiction doesn’t only affect the addict, but their entire family and everyone who cares about them as well. In fact, if you live in Vancouver, chances are you have a friend, co-worker, or family member struggling with the disease of addiction. This blog is written for you.

The link between drug abuse and crime is undeniable. Addiction is a progressive, incurable, and fatal disease, and an addict can only progress so far before he or she becomes unemployable, and has to resort to other means to support his or her habit. Whether he or she is addicted to crack cocaine, crystal methamphetamine, heroin, fentanyl, or even alcohol, their habit is never a cheap one; opiate users for example, often spend several hundred dollars a day on their drug of choice. Therefore, crime often becomes the only viable way to fund a drug habit.

If you have a friend or family member who is charged with an offence because of something their addiction drove them to do, it is very important you help them find an experienced lawyer who understands and can help them navigate the criminal justice system. We have helped many clients and their families deal with criminal charges that stemmed from either impaired judgment as a result of drug use, or a need to support a drug habit. These types of offences can range anywhere from shoplifting to prostitution to violent robberies, and everything in between.

We have extensive experience helping still-suffering addicts and their families deal with all types of allegations whether small property crime or serious violent crime. The accused person will need experienced counsel to help in assessing the strength of the Crown’s case against them, negotiating a fair resolution which takes into account their reduced moral culpability as a result of their disease, or conducting a trial. Their counsel will need to be experienced in making submissions to the court regarding how addiction effects a person’s ability to appreciate consequences and control their impulses. Often, we will also assist in getting our clients into treatment centres or recovery houses as a way of resolving their criminal matters in a more constructive and restorative way.

Our approach to assisting addicted clients and their families is to focus on the connection between their disease and their criminal behavior. They have not done what they have done because they are bad; it is because they are sick. We want to help get their lives on track while minimizing the impact and consequences of their criminal charges on their future.

If you or a friend or family member is in this type of situation, we can help. For any questions, please call our criminal law firm and one of our experienced lawyers will be happy to assist.

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I got injured in an accident. What’s my claim worth?

The answer depends on two things: fault and damages. If you can prove the
other person caused the accident, then you will be entitled to damages. But
how much?

Again, it depends. There are different types of damages that may comprise a
personal injury claim. Some are valued quantitatively: i.e., on the
approximate monetary value of the loss (such as the income you couldn’t earn
as a result of your inability to work post-accident). Others are valued by
qualitative factors and what courts in previous cases have awarded in
similar circumstances. Here’s a summary of some common types of damages.

Wage loss. If the accident causes you to be unable to work for some time,
and thus suffer a loss of income, then you can claim for your net wage loss.
You can also claim for future wage loss if you can prove that your
accident-related injuries might harm your ability to earn income down the
road.

Lost housekeeping capacity and in-trust claims. You may have a claim if
your accident-related injuries prevent you from taking care of household
chores (such as doing laundry or shopping for groceries), or if someone has
to take special care of you because your injuries prevent you from caring
for yourself.

Special damages. These are any out-of-pocket expenses you incur as a result
of the accident or your injuries from it. Examples include taxi fare from
having to take a cab home from the accident scene, user fees for medical
treatment, or bus tickets because the accident prevented you from driving
yourself around town.

Future cost of care. If your injuries are going to require you to seek
specific medical care or treatment into the future, then you can claim for
it.

General damages. Also known as “non-pecuniary damages,” this is the most
common basis for getting paid in a personal injury claim. This is money
intended to compensate you for your pain, suffering, and loss of enjoyment
of life. There is no mathematical basis for calculating this number. Every
case is different, and valuing the measure of general damages requires an
analysis of many factors, including your age, the severity and duration of
your injuries (both physical and mental), and whether the accident causes
any disability. Your previous lifestyle is also relevant: if your injuries
impair your ability to enjoy recreational or social activities, or your
personal relationships with friends, family, or significant others, then
that will inform your general damages claim.

Note that damages can be hard to assess. When fighting over damages at
trial, the plaintiff’s lawyer argues why his or her client should be
entitled to the highest possible amount of damages, while the defendant’s
lawyer argues why the plaintiff should only get a fraction of that amount.
The defence may also argue why some damages shouldn’t be awarded at all.
The court then decides what to award.

If you negotiate with ICBC, expect them to pay you something for your
losses. But don’t expect the adjusters to assess the damages with your best
interests in mind. It’s not their job.

For advice on what heads of damages you might be entitled to after an
accident, call Filkow Law for an initial consultation.

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Jul 05, 2017

Fighting an IRP

Since September 20, 2010, the Immediate Roadside Prohibition (IRP) regime largely replaced the judicial process in the field of drinking and driving offences. In another words, most drinking and driving cases do not involve appearing in Court. In British Columbia, the police issue an IRP and submit a report to the Superintendent of the Motor Vehicles. There are seven days to dispute the IRP. The review process takes place in written or oral format before an adjudicator in Victoria.

The penalties are severe and swift. Those who the police report blew a “fail” or “refuse to blow” will immediately lose their driver’s licences for 90 days. In addition, the vehicle they were driving is impounded for 30 days. There are also significant requirements for participation and completion of the Responsible Drivers Program and the Interlock Ignition Program. There are also significant financial consequences including the towing and storage fees for the impounded vehicle and the costs of required programs. An IRP also means a serious alcohol related offence on one’s record which can carry lasting negative consequences.

The area of drinking and driving is very specialized and the issues are technical and can be quite complicated. What would be relevant in a criminal case may be very different than what is important on an IRP review.    

Filkow Law is a leading authority and expert on IRPs  and all drinking and driving offences. This area of the law is highly specialized. If you receive an IRP or other drinking and driving offence, please contact 604-558-8778 for legal assistance.

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Have you wondered what will show up on a Criminal Record Check and how it could affect you?

Criminal record checks may be required by employers and volunteer agencies, as well as for adoptions, some travel, citizenship and immigration, or a record suspension (previously known as a pardon).  If you have been accused of, charged with, and/or convicted of an offence, it is important to be aware of the information contained in a criminal record check, and how you can ensure this document accurately reflects your background and current circumstances.

Information with regard to criminal convictions, charges, and allegations are contained on several databases, including:

Canadian Police Information Centre (CPIC) – a nationally maintained database compiled by the RCMP.  It generally includes a check of the National Repository for Criminal Records and may include checks of other national data banks.

JUSTIN is a British Columbia-wide case management database.  It is noteworthy that some of information contained on JUSTIN is also available on the publicly available “Court Services Online”.

PRIME is a British Columbia-wide police database.  Generally any contact with police will be documented on this database, whether reporting an offence, being named in an investigation of an offence, or having the police recommend charges for an offence.

Two key different types of documents may be requested:

Criminal Record Checks will produce any record of criminal charges, convictions and discharges, and fingerprint information.

Vulnerable Sector Checks will include information on a criminal record check as well as any record suspensions or pardons for sexual offences, and local police records for information relevant to the vulnerable sector check (generally sexual offences or offences viewed as targeting vulnerable individuals).

Pending charges will appear on criminal record checks (and on database searches that can be performed on entry to the United States). 

Unfortunately, in some cases for action is required by an accused individual to ensure their record remains clear of offences they have not been convicted of or have received a discharge or pardon for.  If you are concerned your Criminal Record check may not accurately reflect your criminal history or charge status, contact Filkow Law to discuss your options.

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