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.

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

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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

Dec 23, 2021

Changes to Drinking and Driving Legislation

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 first instalment of this paper, explaining the changes to drinking and driving legislation in BC.

Changes to Drinking and Driving Legislation

The following is an excerpt regarding two major changes to the language in the Criminal Code–“motor vehicle, vessel, an aircraft or railway equipment” is now “conveyance” and “forthwith” is now “immediately”:

The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.

Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts where possible. As one example, in section 320.27 which, allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.

Alcohol Screening Provisions s. 320.27(2)

The following is an excerpt regarding the new police power to make roadside breath demands without reasonable suspicion of alcohol in the driver’s body. Mr. Robinson also explains issues with regards to the possession of the screening device and the timing of the test:

Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator. The second step provides for a breathalyser test into an Approved Instrument at a police station.

The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).

However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening” s. 320.27(2) states:

320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603 the Ontario Court of Justice found s. 320.27(2) violates sections 8 and 9 of the Charter but those violations are saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10 the Saskatchewan Provincial Court found s. 320.27(2) does not violate s. 9, but it does violate s. 8, and that violation is saved by s. 1.

There are three requirements for a valid demand under s. 320.27(2).

The demand must be made in the course of the lawful exercise of police powers;
The demand must be made by a peace officer who has an ASD in their possession.
The demand must be made, and the test must be administered – immediately.

With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons like checking for driver’s licenses, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional.^[1] Under s. 320.27(2) the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief the driver has consumed alcohol.

With respect to the requirement that the officer has the ASD in their possession,

in R v Bath, 2021 CanLII 35120 the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:

As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.

The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a license suspension under the Alberta Traffic Safety Act.

The demand was invalid. The Board found the immediacy requirement under section 370.27(2) requires that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:

In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.

The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.

The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.

In summary, an officer does not need to physically possess the ASD at the time of the demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.^[2]

^[1] See R v Dedman, [1985] 2 SCR 2, R v Hufsky, [1988] 1 SCR 621 and R v Ladouceur, [1990] 1 SCR 1257.

^[2] Bender (Re), 2019 ABTSB 1752.

If you 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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Nov 09, 2021

The Vicious Cycle of Driving Prohibitions in BC

It is not uncommon for drivers in British Columbia to get caught in a vicious cycle of driving prohibitions. This is particularly common with novice drivers, and it can cause some people to be unable to graduate to a full licence for 5-10 years. This cycle of driving prohibitions BC can have compounding negative consequences for a driver’s employment, familial obligations, and financial well-being.

What Is Driving Prohibition?

The driving prohibition cycle begins with an initial prohibition issued by RoadSafetyBC, the government body that monitors the driving records of licence holders in British Columbia. Drivers are brought to RoadSafetyBC’s attention when traffic tickets or alcohol or drug infractions are added to driving records, subject to certain thresholds.

Class 7 or 8 drivers (N or L) receive the most scrutiny. According to the Driver Improvement Program Policy and Guidelines, Class 7 drivers can be prohibited for any single ticket carrying two or more demerit points, or any single alcohol or drug-related infraction.

Drivers with full licences (Classes 1 – 6) are given more latitude but are still monitored. For example, two high-risk offences (excessive speeding or cell phone tickets) within a certain time period will result in a lengthy prohibition.

Prohibitions are absolute and measured in months, not weeks. Prohibitions from RoadSafetyBC will not allow certain hours where you can drive for work or school.

What Happens After Your Driving Prohibition Finishes?

Following the conclusion of a driving prohibition, a driver will be on probation. RoadSafetyBC will scrutinize the driver’s record for the next two years, or until the driver gets their full licence. If further traffic, or alcohol or drug-related infractions are added to the driving record, another prohibition will issue. Further, a subsequent prohibition is almost certain to be longer in duration than the first prohibition. In this way, the vicious cycle of prohibitions continues. The driving prohibitions get longer and the probationary period starts all over. Driving during a driving prohibition will lead to a driving while prohibited charge which are dealt with in criminal court.

While a lawyer experienced in driving matters can be of assistance at any time, the best way to avoid any disruption in your ability to drive, and to avoid falling into the cycle of prohibitions, is to obtain legal advice at the earliest stage. If you have received a driving prohibition, been caught driving while prohibited or placed on novice driver probation call Filkow Law for help.

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Oct 22, 2021

The New Impaired Driving Laws: What Is Not Being Said

The following paper was written by Filkow Law’s Kevin Filkow in response to the BC Government’s amendments to the Motor Vehicle Act (MVA) in 2010. These amendments are now the law in BC and the issues outlined by Mr. Filkow persist to this day. This paper was written for The Advocate, a leading law journal published by the Vancouver Bar Association. If you have been charged with impaired driving in bc or are in need of legal assistance, or call Filkow Law today.

The New Impaired Driving Laws: What Is Not Being Said

The Ministry of Public Safety and Solicitor General issued a News Release on April 27, 2010[1]. The Release trumpeted that “The province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”

Subsequent to this Release and as an extension of same, the Office of the Superintendent of Motor Vehicles issued bulletins spelling out the penalties which will be part of the new regime. A comparison of the current and new penalties can be found at the foot of this article[2].

Fundamental to the new regime will be an unequivocal acceptance of a police officer’s report of what took place at a roadside stop upon a breathalyzer test being administered or upon one being refused. If the reported reading is a fail or if the officer reports a refusal, the new penalties take effect immediately with very limited administrative appeal rights with no true prospect of success. The ostensible intention, as amplified below, is not to engage drinking drivers in the judicial process except in a limited number of situations.

The Backgrounder[3] to the Province’s Release stresses: “Major amendments to impaired driving sections of the Motor Vehicle Act (MVA) will ensure impaired drivers caught in BC face instant loss of their driving privileges (90 days) and impoundment of their vehicles (30 days).” There are other corollary mandatory requirements, i.e. completing the Responsible Driver Program and installing an ignition interlock device which must be utilized for a minimum of one year. Both these programs are costly. They are without exceptions for hardship or otherwise. In addition, the financial penalties are substantial. For example, a driver with no relevant history failing a breath sample at roadside or refusing to provide a sample will face minimum fines and fees of approximately $4060.

The Release does add that failing or refusing drivers may also face criminal charges.

What the Release does not say is that there is every indication that criminal charges will only be laid in particularly aggravated circumstances (such as an accident or where there is a prior related conviction) which going forward will be increasingly rare. The effect of this is that the overwhelming majority of drivers, tested under the new regime, will have no meaningful recourse to challenge what the police say took place at the roadside. The peace officer will record the reading of the Approved Screening Device (ASD) or alternatively will document the alleged refusal and then “the curtain drops.”

While right-minded citizens of British Columbia are acutely concerned about drinking and driving, there is every reason to be discomforted by this ‘machine type of justice.’ The ASD was intended to be a screening mechanism under the Criminal Code to assist a peace officer in evaluating the driver’s condition as to sobriety. The ASD does not have a record keeping or memory capacity. The instrument can be operated improperly. The new legislation, however, effectively allows the reading to be definitive. There is no opportunity to challenge the instrument, no opportunity to cross examine the officer as to the integrity of what occurred and no opportunity to challenge the manner in which the ASD was operated. An instrument intended only as a screening device is now elevated to a determinative role[4].

The new regime reposes extraordinary power and authority in a peace officer. Failure to allow for a criminal defence process disregards the unfortunate reality that there are zealous or wrongly disposed peace officers or officers who may mismanage the instrument or simply make a mistake. No cross-examination or scrutiny of the officer takes place under this regime.

What is not being said is that highly culpable behaviour such as driving while drunk will now largely be outside the criminal process. The Office of the Superintendent of Motor Vehicles on its website[5] stresses that the “province is introducing changes to give BC the toughest provincial impaired driving legislation in the country. If you drink and drive after the new law comes into effect on September 20, 2010, you can count on penalties adding up to between $600 and $4060 – even if it’s the first time you’re caught – and more time off the road.”

The corollary of this new approach, though, is that in not facing criminal charges, the driver will not be exposed to the instructiveness of the criminal justice system. There is significant value in the experience of retaining counsel, facing a public record for criminal behaviour, facing denunciation, and, on some occasions, receiving thoughtful remarks from a presiding judge. There is an irony, a disconnect that behaviour which is such a serious threat to public safety, will now largely avoid the criminal process.

Also unspoken and related to the previous paragraph is that the province clearly intends to save serious treasury by allocating significantly less resources to what has been the criminal process, i.e. police investigations, Crown prosecutions and trials. Ostensibly, the motivation is to free up these resources to allocate to ‘more serious’ criminal behaviour. If that is so, the priorities are misguided. There is probably no form of criminal behaviour more pervasive than drunk driving. There is probably no criminal behaviour more capable of effective deterrence through public denunciation and the related process. It is also a reality that police officers should be investigating criminal behaviour; this behaviour should not be given diminished significance.

The volume and the cost of the impaired driving problem should not be a rationale for compromising individual rights and protections. There are no practical or genuine checks and balances under this new regime. Criminal law has always required a very high standard of proof and a compelling burden on the Crown to meet its case. What the Federal Government sees as criminal will now be something else – effectively an administrative regulatory matter. It would seem reasonable to expect that the new legislation will face a challenge in seeking to displace the federal criminal law power under s. 91 of the Constitutional Act.

What is not mentioned is that there will be a disparity between incidents where there is an ASD handy and those incidents where there is not. Any driver pulled over in the latter circumstances will likely be subject to the old regime and will in these limited cases have access to the criminal justice system.

Indicative of how far reaching is this philosophical change by the BC government is the Warning protocol. This Warning protocol will apply to drivers whose apparent readings are below the legal limit of .08% blood alcohol content and may not be demonstrating any signs of impairment.

As outlined above, a driver who fails (above .08%) or ‘refuses’ to provide an ASD sample will be given a 90-day suspension at roadside, will be subject to a one year Interlock Ignition program and financial penalties which amount to $4060. His or her vehicle will be impounded for 30 days. The Warn range is a reading of .05 to .08% (some ASDs are calibrated to .099%). This results in an immediate 3-day suspension, a 30-day impoundment and minimum fines and fees of about $600. This is for the first warn in 5 years. A second warn in the same period draws a 7-day suspension, a longer period of impoundment and minimum fines and fees of $760. A third time warning within 5 years carries with it a 30-day suspension, a 30-day impoundment, a one year Ignition Interlock program and a minimum financial penalty of $3650. Three beers within a two hour period would put virtually anyone in the Warn range. There is again no practical opportunity to challenge these consequential penalties and, in these cases, for not behaving in an illegal manner.

The province’s express rationale is that enforcement of drinking and driving offences will be far more expedient under the new regime. It characterizes the new regime as the toughest driving laws in the country. While the penalties under the new laws are certainly swift and severe, the intended approach avoids the criminal justice system and allows a matter of serious legal consequence to be technologically and summarily resolved at the instance of a peace officer whose fairness and ability are taken as a “given.” In this author’s view this departure from the honoured protections is a matter of concern. A better alternative would be to ensure greater resources as necessary to expedite the process which preserves the rights and protections of individuals.

[1] Ministry of Public Safety and Solicitor General, News Release, 2010PSSG0026-000472, “B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS” (27 April 2010).

[2] See Appendix: Office of the Superintendent of Motor Vehicles, online: CURRENT and NEW Penalties Comparison Chart <http://www.pssg.gov.bc.ca/osmv/publications/docs/impaireddriving-currentandnewpenalties.pdf>.

[3] Ministry of Public Safety and Solicitor General, Backgrounder, 2010PSSG0026-000472, ” B.C.’S IMPAIRED DRIVING LAW TO CHANGE” (27 April 2010).

[4] The Supreme Court of Canada held in R. v. Orbanski, [2005] S.C.J. No. 37, that there is no entitlement at the roadside to be advised of or to receive counsel as the evidence obtained would only go to the police officer’s reasonable grounds to make a breathalyzer demand. The new legislation extends that principle to a situation of a very different character.

[5] Office of the Superintendent of Motor Vehicles, online: Impaired Driving <http://www.pssg.gov.bc.ca/osmv/impaired-driving/index.htm>.

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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

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