Criminal Law

With over 50 years of criminal law experience, and having successfully defended thousands of cases, the lawyers at Filkow Law are well-known for their superior legal skills and abilities and for the exceptional results they achieve.

Filkow Law has extensive experience across all areas of criminal law practice with particular expertise in the areas of sexual offences, criminal driving, assault offences, and drug & money charges.

Criminal law has become increasingly complicated. The impacts of a criminal record are devastating and lasting. It is important to retain highly qualified criminal lawyers who know the criminal justice system. The best legal representation demands a number of aptitudes: hard work, legal knowledge, preparation, sound judgment, good relationships and people skills, negotiation, advocacy, courtroom skills, commitment and tenacity.

As experienced criminal defence lawyers in Vancouver, BC, we possess these proficiencies and are dedicated to providing the best outcome. If you are under investigation or have been charged with a criminal offence, contact Filkow Law for legal assistance.

For more information on our highlighted practice areas, click any of the links below.

Sexual Offences

Sexual Assault
Sexual Interference
Publication of Intimate Images
Indecent Act/Exposure
Luring a Child

Criminal Driving

Impaired Driving (DUI)
Illegal Blood Alcohol Level
Refusal to Comply with a Demand
Dangerous Driving
Hit-and-Run

Assault Offences

Assault
Domestic Assault
Assault Causing Bodily Harm
Assault with a Weapon
Aggravated Assault
Uttering Threats
Criminal Harassment
Weapons Offences
Peace Bond

Drug Offences

Possession for the Purpose of Trafficking
Trafficking
Possession
Cannabis Offences
Importing

Theft & Property Offences

Theft
Fraud
Civil Forfeiture
Breaking and Entering
Robbery
Possession of Proceeds of Crime

I have a first court date coming up. What should I do?

We recommend that you contact us in advance of that date.

Do I look guilty if I hire a lawyer?

No. You are innocent until proven guilty and you have the right to counsel. Exercising your rights cannot be used against you.

If I am taken into custody by the police. What should I do?

One of the most scary and unpleasant events for someone is to be in police custody. There is a serious imbalance of power. A phone call to a lawyer is generally the only legal assistance at a very vulnerable time. If you have been arrested, contact Filkow Law at (604-558-8778) or our 24-hour toll-free number at (1-855-558-8778).

Are the police allowed to randomly stop me while I am on the street?

Generally, the police do not have the power to stop or question you without a reason. The police are only permitted to detain and demand your identification when they have a reasonable suspicion that you are engaged in criminal activity. If the police do not have a reasonable suspicion, the detention is illegal and any evidence they obtain may be excluded at trial. For more information on police stops, click here.

Do the same rules apply to police stops while driving?

The police have the power to stop your vehicle to investigate your licence, insurance, registration, and the safety of your vehicle. However, your Charter rights apply to you and to anyone else in your car when the police officer pulls you over while driving. For more information on police stops, click here.

What is an assault?

An assault is any intentional, non-consensual contact on another person. An assault can range from an argument at home to a fight at the bar to an assault causing death or murder. Even a raised fist or physical gesture can be an assault.

What is a sexual assault?

At its core, a sexual assault is any non-consensual sexual touching. It can range from touching a buttock to intercourse. If you are being investigated for sexual assault, it is important to call an experienced criminal lawyer immediately.

No matter the facts of the case, sexual assault allegations – let alone charges – have serious consequences for an accused person. If you are being investigated for or have been charged with a sexual assault or a related offence, we strongly recommended that you contact an experienced criminal defence lawyer to protect your interests throughout the process.

The police took my stuff. How long can they keep it for?

The police can seize items for 90 days. If no charges are laid, the police will need to seek your consent or judicial authorization to detain the items for longer than 90 days.

I am charged with driving while impaired and driving over 80. What does this mean?

Driving while impaired and driving over 80 are commonly charged when a person is alleged to have been drinking and driving. They are different offences. It is possible for someone to drive over 80 without being impaired. Similarly, it is possible for someone to drive while impaired without being over 80.

Driving over 80 requires evidence that your blood alcohol content was over 80mgs% per 100mL of blood. This is often proven by a breath or blood sample. In cases involving drugs, a urine sample may be used.

In contrast, driving while impaired requires evidence that the person’s ability to drive was impaired to any degree. The following are some observations that may establish impairment:

a marked departure from normal driving;
bloodshot or watery eyes;
a flushed face;
the odour of an alcoholic beverage;
slurred speech;
a lack of coordination;
a lack of comprehension; and
inappropriate behaviour.

The court will assess the totality of the symptoms in determining if someone is impaired.

What is dangerous driving?

Dangerous driving is driving that is a marked departure from a reasonable prudent person (like a judge). It is determined on a case-by-case basis with regard to all the circumstances. Here is a non-exhaustive list of some examples of dangerous driving:

Driving at a high rate of speed through a red light.
Driving on a busy highway at night with a blood alcohol content of 50mgs% per 100mL of blood while extremely tired.
Seizing the wheel of a motor vehicle that is being properly driven.

In some cases, driving at a high rate of speed alone is dangerous driving.

I am charged with theft and fraud. What does this mean?

Theft and fraud are two related but different offences. They are often charged together when something has been stolen.

Theft is taking the property of another without consent and with an intent to deprive the owner of the value or use of that thing. In contrast, fraud is an intentional and false representation of a matter of fact in order to secure a benefit or to materially damage another person.

One key difference is that theft involves the act of taking, whereas fraud is a false representation. For example, if you take someone else’s money without their consent, that is theft. If you tell someone to lend you money and you will pay them back when you do not intend to pay them back, the act of lying and deceiving can be fraudulent.

Call Now

604-558-8778

Toll-Free Number

1-855-558-8778

Text Us

604-721-5770

If you need legal assistance, give us a call or simply text us your police, court or driving documents to our respective text line.

Vancouver

450 SW Marine Dr, Suite 510
Vancouver, BC V5X 0C3

(604) 558-8778

Surrey

13711 72 Avenue
Surrey, BC V3W 2P2

(604) 588-2800

Kelowna

1638 Pandosy Street #20
Kelowna, BC V1Y 1P8

(250) 860-2744

Abbotsford

30125 Automall Dr #107A
Abbotsford, BC V2T 6Y9

(778) 769-3388

Richmond

1611-7468 Lansdowne Road
Richmond, BC V7C 0B7

(604) 278-8100

Criminal Law

Apr 22, 2022

Fatal Pedestrian Vehicle Accidents In BC

In 2020, 1,200 motor vehicle accidents in the Lower Mainland involved pedestrians. 24 of those accidents involved the pedestrian passing away as a result of their injuries. Common contributing factors include speeding, distraction, or impairment. However, not all accidents involve active wrongdoing on the part of the driver. Often, accidents are simply just that, an accident. A common example involves a driver that does not see the pedestrian as a result of heavy rain and darkness in the winter months. However, this does not mean that the driver is not responsible. In these circumstances, the Court has made it clear that while there is no criminal wrongdoing on the part of the driver, wrongdoing could be proven under the Motor Vehicle Act for driving without due care and attention.

Fatal Pedestrian Vehicle Accidents: Legal Implications

The provision for driving without due care and attention can be found under section 144(1)(a) of the Motor Vehicle Act. Although this offence is not criminal in nature it is dealt with in criminal court. This offence is proven when a driver – while attentive to the mechanics of driving – is inadvertently negligent by failing to direct his or her mind to matters (other than driving) which ought to have been directed. For example, Filkow Law commonly represents drivers who are making a legal left turn but strike a pedestrian that is legally crossing the street. The Court has stated that an accident of this kind is not criminal however, the driver should have turned his or her mind to the fact that a pedestrian may have been in the crosswalk prior to making the left turn and if the driver is found not to have turned their mind, they were inadvertently negligent and responsible for driving without due care and attention.

The law of pedestrian fatalities is complex. There is a fine line between being inattentive and being inadvertent.

The potential consequences for being found guilty of driving without due care and attention include a fine, a driving prohibition and, in some cases, a jail sentence.

If you were involved in a motor vehicle-pedestrian accident, call the lawyers at Filkow Law for knowledgeable and experienced advice.

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Mar 17, 2022

Filkow Law Lawyer Anthony Robinson Successfully Argues Insanity Defence

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

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

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

What is a Mental Disorder?

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

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

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

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

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

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

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

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

Conclusion

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

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

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Feb 08, 2022

Evidentiary Issues for Drinking and Driving Cases

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

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

Admissibility of Result of Analysis s. 320.31(7)

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

Admissibility of Statement s. 320.31(9)

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

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

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

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

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

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

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

Disclosure

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

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

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

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

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

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

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

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Criminal Law

With over 50 years of criminal law experience, and having successfully defended thousands of cases, the lawyers at Filkow Law are well-known for their superior legal skills and abilities and for the exceptional results they achieve.

Sexual Offences

Criminal Driving

Assault Offences

Drug Offences

Theft & Property Offences

I have a first court date coming up. What should I do?

Do I look guilty if I hire a lawyer?

If I am taken into custody by the police. What should I do?

Are the police allowed to randomly stop me while I am on the street?

Do the same rules apply to police stops while driving?

What is an assault?

What is a sexual assault?

The police took my stuff. How long can they keep it for?

I am charged with driving while impaired and driving over 80. What does this mean?

What is dangerous driving?

I am charged with theft and fraud. What does this mean?

Criminal Law

Driving Law

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