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?

If you have a court date in BC, we recommend you contact us in advance of that date.

Do I look guilty if I hire a lawyer?

You are innocent unless proven guilty. Exercising your rights is fully appropriate and cannot be used against you.

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

One of the most frightening 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 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.

Criminal Law

Feb 01, 2022

Increased Penalties for Drinking and Driving

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

Increased Penalties for Drinking and Driving

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This list of aggravating factors is not exhaustive.

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

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

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Jan 10, 2022

Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)

This is the third instalment of this paper, explaining how the Crown Counsel is no longer required to consult an expert witness for samples taken more than two hours after driving.

Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)

The following is an excerpt explaining that Crown experts are no longer required to calculate blood alcohol for samples taken more than two hours after driving:

Under both the old and new provisions, samples of a driver’s breath or blood are supposed to be taken within two hours of the time of driving. Under the old provisions, samples taken within two hours of the time of driving were deemed to be the driver’s BAC at the time of driving. If the samples were not taken within two hours of driving, the Crown was required to call an expert, usually in the form of a toxicologist, to calculate (read back) what the BAC was at the time of driving.

Under the new provisions, an expert is no longer required if the samples were taken after the 2-hour window. Subsection 320.31(4) of the Code provides a formula that allows a court to do its own BAC calculation back to within two hours of the time of driving. The read-back need only go as far back as to within two hours of the time of driving (as opposed to at the time of driving) because of the new definition set out in 320.14(1)(b) discussed above. Section 320.31(4) states:

For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.

According to the government, the elimination rate of 5 mg/100mL for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. There is scientific consensus that alcohol leaves the bloodstream at a rate greater than 5 mg/100mL per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render a person incapable of driving). Accordingly, a BAC calculated at this rate will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window.^[1]

Practitioners should keep in mind that although samples taken after two hours of the time of driving can be calculated back to within two hours, there is still a requirement in section 320.28 that samples of breath or blood be taken “as soon as practicable” (similar to the old provisions). In deciding whether the tests were taken “as soon as practicable”, the whole chain of events must be considered bearing in mind the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement is to be applied with reason.^[2]

“As soon as practicable” is determined on a case-by-case basis and it is not an element of the offence the Crown must prove. Where the accused wishes to argue the samples were not taken as soon as practicable, the accused must challenge the Crown’s case by cross-examining the officer(s) on the various periods. (The accused cannot “lie in the weeds” as they say). Where the peace officer is unable to explain the delay, the defence can argue that the test was not administered as soon as practicable.

^[1] Department of Justice, Charter Statement: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (11 May 2017), online: <http://www.justice.gc.ca> [Department of Justice].

^[2] R v Vanderbruggen, 2006 CanLII 9039 (ONCA).

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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Jan 04, 2022

Legal Blood Alcohol Limit & Timing of Blood Alcohol Reading in BC

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 second instalment of this paper, explaining the new legal blood alcohol limit in BC, and timing of the blood alcohol reading.

Legal Blood Alcohol Limit is Now 79 mgs%

The following is an excerpt regarding a change in the legal blood alcohol limit:

Under the previous regime, it was an offence to have a blood alcohol concentration (BAC) in excess of 80mgs% (80 mgs of alcohol in 100ml of blood). It is now unlawful to have a BAC “equal to or exceeding” 80 mgs%. The new formulation was a response caused by rounding down BAC results to the nearest 10th mg%.^[1]

Time of the Blood Alcohol Reading

The following is an excerpt outlining how the scope of the offence has expanded from the time of driving to within two hours of the time of driving, and how two defences have been eliminated:

One of the most significant changes to the legislation is that a driver’s BAC no longer needs to be in excess of the legal limit at the time the driver had care and control of the conveyance. It is now an offence to be in excess of the legal limit within two hours of operating a motor vehicle. The predecessor legislation made it an offence to have a BAC in excess of the legal limit at the time of driving. This meant there had to be a temporal overlap between a BAC in excess of the legal limit and the time of driving. That overlap no longer applies.

Section 320.14(1)(b) states:

Everyone commits an offence who

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;

The curious impact of this change is that the elements of the offence of being in excess of the legal BAC limit no longer has to overlap in time with the element of care and control. Without subsection (5), this amendment would allow someone to be convicted of an over .08 offence because their BAC was in excess of the legal limit within 2 hours of driving, even though their BAC was below the legal limit at the time of driving. Thankfully the definition is subject to the limitations prescribed in subsection 320.14(5) which states:

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

This new definition defeats two defences: bolus drinking; and the intervening drinking defence.

Bolus drinking refers to situations where a driver claims they consumed alcohol just before or during driving, but they were not over the legal limit at the time of driving because the alcohol was not fully absorbed in their blood until the time of testing. Because the bolus drinker did not consume alcohol after ceasing to operate the conveyance, they can not avail themselves of the exception prescribed in subsection 320.14(5)(a).

The intervening drinking defence is usually advanced when there has been a motor vehicle accident. The defence refers to situations where the driver claims they consumed alcohol after an accident such that they were over the legal limit after the accident but not at the time of driving. This defence is eliminated under the new definition by the operation of subsection 5(b), which provides that it is not an offence to be in excess of the legal limit within 2 hours of driving if the driver had a reasonable expectation they would be required to provide a sample of breath or blood.

It is difficult to conceive of all the circumstances in which a driver would reasonably be expected to provide a sample of breath or blood. However, being involved in a motor accident can be one of them.

This is reflected in R v Mair, [2019] OJ No 2215. In that case, the police received a report that a vehicle drove into a tree then left the scene. The police followed a trail of radiator fluid from the scene to a driveway. When the police questioned the accused, he confessed to driving the vehicle. The accused was arrested and taken to the police detachment and provided a sample in excess of the legal limit.

The accused gave a defence of intervening drinking. He testified at trial that he consumed two pints of beer at a pub prior to the accident. After the accident, he returned home and drank 60-70% of a bottle of whiskey. The accused said he was shaken from the accident, so he drank that amount in about 25 minutes.

This case pre-dated the 2018 amendments as the offence was alleged to have occurred in 2017. However, the court commented in obiter about whether under the new provisions the accused would have had a reasonable expectation to provide a breath sample in the circumstances. The court conclude that a driver who got into an accident would have difficulty establishing they did not have a reasonable expectation to provide a sample. At para. 38 the court stated:

I would note the recent amendments to the Criminal Code which provide new specific rules governing post-driving alcohol consumption. Under the new s. 320.14(5), Mr. Mair would have been required, in order to succeed in his defence, to establish that he had no reasonable expectation that he would be required to provide a sample of his breath. Given the fact that he had just been involved in an accident, Mr. Mair would have considerable difficulty establishing that. He would also have had to provide toxicological evidence to establish a BAC consistent with post-driving consumption.

Similarly, in Madadi-Farsijani, 2021 ONCJ 196 the accused put forward a defence of intervening drinking. The accused drank one beer with a friend then drove home. On the way home, the accused rear-ended a vehicle. He testified the collision caused him to have a flashback to a prior traumatic driving experience in Iran. Upset by the flashback, the accused grabbed one of the bottles of whiskey he purchased earlier in the day and drank about 10 ounces prior to exiting the vehicle. He left the opened bottle on the front passenger seat while the other unopened bottle remained on the rear floor of the vehicle.

The court concluded that an intervening drinking defence could not succeed because in the circumstances of this accident it was reasonable to expect the accused would be required to provide a sample.^[2] At paras. 28 and 29 the court stated:

Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.

^[1] Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, p 23.

^[2] In Madadi-Farsijani, the accused also filed a constitutional challenge to the Over .08 provision on the basis the section violates ss. 7 and 11(d) of the Charter. The court deferred dealing with the constitutional challenge until it determined the accused’s guilt under the existing provisions. To date, the Charter application has yet to be heard. In R v Kaur, 2020 ONCJ 538 the accused filed a Charter application regarding ss. 320.14(1)(b) and 320.31(1). Due to a scheduling conflict, the Charter challenge was deferred to the end of trial. The challenge has yet to be heard.

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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

Frequently Asked Questions

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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