Driving Law

Filkow Law is a leading driving law firm well-known for its exceptional results on all aspects of driving law and frequently consulted by legal professionals for advice. A driving prohibition can have devastating effects on one’s employment and family and can also have serious criminal, financial and insurance consequences.

The lawyers at Filkow Law have over 50 years of driving law experience and are highly regarded for their knowledge, expertise and excellent representation.

Driving is one of the most highly regulated areas of the law. Driving offences range from having a traffic ticket to an immediate roadside prohibition to dangerous and impaired driving to serious car accidents and pedestrian fatality cases. Driving prohibition can have devastating effects on one’s employment and family and can also have criminal and insurance consequences.

The lawyers at Filkow Law have successfully dealt with thousands of driving prohibition cases. If you are facing a driving prohibition, immediate roadside prohibition or a charge of driving while prohibited, call Filkow Law today.

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

Driving While Prohibited

Criminal Code
Motor Vehicle Act

Licence Prohibitions

Notice of Prohibition
Notice of Intent to Prohibit
Driver Improvement Program

ICBC Breaches & Accidents

Drugs and alcohol
False statements
Fail to cooperate
ICBC Debt

Immediate Roadside Prohibitions

Fail
Refusal
Warning

Why did I get a driving prohibition from RoadSafetyBC?

RoadSafetyBC may prohibit you for a number of reasons, including the following:

you have an “unsatisfactory” driving record;
a police officer forwarded a “high-risk driving incident report” to RoadSafetyBC;
RoadSafetyBC determines you are medically “unable” or “unfit” to drive; and
for any other reason RoadSafetyBC considers to be in the public interest.

The most common reason for a prohibition is having an “unsatisfactory” driving record, which usually results from having too many points or high-risk offences.

What is the difference between a fully-licensed driver (Class 5) and a new driver (Class 7)?

Class 7 drivers are subject to certain restrictions. For example, new drivers cannot use electronic devices, have any alcohol or drugs in their body while driving, or have too many passengers. Learners cannot drive at all unless they have a properly qualified supervisor.

RoadSafetyBC treats Class 7 drivers who incur driving violations much more severely than experienced drivers.

What if I have an international driver’s licence?

RoadSafetyBC treats international drivers as new drivers. Because of this fact, a driver with an international licence will scrutinized more closely than a driver with a full BC driver’s licence. Even one ticket may result in a driving prohibition.

I have my full licence (Class 5). How many points am I allowed before I will be prohibited?

Fully-licensed (class 5) drivers who incur 15 or more points in a two-year period will likely be prohibited.

Fully-licensed drivers who are found guilty of two or more high-risk driving offences in a 12-month period, will likely be prohibited from driving – even if they have fewer than 15 points.

I am a new driver (Class 7). How many points am I allowed before I will be prohibited?

New drivers (class 7) who incur more than three points or even one high risk driving offence will likely be prohibited from driving.

What is considered a high-risk driving offence?

RoadSafetyBC designates the following offences as “high-risk”:

using an electronic device while driving;
excessive speeding;
driving without due care and attention; and
driving without consideration.

Because these offences are designated high-risk, it is particularly important to get advice from an experienced lawyer about the consequences.

I have a letter referring me to the Driver Improvement Program. What does that mean?

The Driver Improvement Program is RoadSafetyBC’s process of reviewing driving records and issuing, warning notices, probation notices and driving prohibitions. You can find more information on the program here. Learn more about driving prohibitions here.

I received a Notice of Intent to Prohibit. What does this mean?

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. The amount of time is specified in the letter. Learn more about how you could receive a driving prohibition here.

I have received a Notice of Intent to Prohibit Letter. What can I do?

The Notice of Intent letter gives you 21 days to submit a review of the intended prohibition. If a letter is submitted during this period, the decision to prohibit will be suspended until a final decision is made. We strongly recommend speaking to a lawyer to discuss your options.

If RoadSafetyBC already intends to prohibit me from driving. Why should I submit a request to review my prohibition within 21 days?

RoadSafetyBC may consider your hardship and may shorten or reduce your prohibition. Without a letter, all RoadSafetyBC sees is your driving record. Further, if you provide your submissions within the 21-day timeline, your prohibition will be put on hold until a decision is made. This may give you some more time to prepare for the prohibition.

I received a Notice of Prohibition. What does this mean?

A Notice of Prohibition advises you of RoadSafetyBC’s decision to prohibit you from driving for a period of time. The amount of time is specified in the letter.

How is a Notice of Prohibition different from a Notice of Intent to Prohibit?

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you and provides you with 21 days to respond. On the other hand, a Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving, however the prohibition does not commence until you acknowledge the prohibition by signing it and returning it to RoadSafetyBC, or until a police officer serves you with it. In other words, the prohibition begins on the day you sign it and send it in or the day a police officer serves you.

I received a Notice of Prohibition but I am still driving. What will happen?

If you do not acknowledge your Notice of Prohibition, a police officer may serve you with the prohibition. If you are driving at the time the officer serves you, the officer may use their discretion to give you time to drive home before your prohibition commences.

What are the possible outcomes after I send my letter?

RoadSafetyBC will make one of three decisions: they will uphold the prohibition, reduce it in duration, or cancel the prohibition altogether. If you are prohibited by RoadSafetyBC, you are prohibited from driving for all purposes. RoadSafetyBC does not make exceptions that allow you to drive for work or medical reasons. Learn more about driving prohibitions here.

What considerations does RoadSafetyBC make when reviewing my submission?

RoadSafetyBC will look at a number of factors, including the following:

your driving experience;
the type and class of licence(s);
the seriousness of the infraction(s) as they relate to public safety or property damage;
the period of time since the infraction or between infractions;
any previous warnings, probation periods or driving prohibitions;
any previous lenience shown by adjudicators;
penalty points; and
driving improvement shown.

Hardship alone will usually not result in a driving prohibition being cancelled.

This is the first driving ticket I have ever received, and I am a good driver. Should I bother disputing it?

There are a number of reasons to dispute your first ticket. If you are a new driver, you can be prohibited from driving after a single ticket. If you are an experienced driver, you can be prohibited for as few as two tickets. If you pay your ticket, fail to dispute your ticket, miss your hearing, plead guilty, or are convicted of the offence, the violation will go on your record. All entries on a driving record are permanent.

Driving Law

Jun 18, 2019

Internet Luring Of A Child – R vs Mills

Internet child luring under section 172.1 of the Criminal Code is the act of an adult communicating with someone online that they believe is under the age of eighteen. These communications result in the adult attempting to meet with the supposed child offline, for a sexual purpose.

This child charge comes with severe penalties. A conviction for internet child luring includes a requirement for the convicted person to register as a sexual offender for the rest of their life. Additionally, child luring charges have a mandatory minimum sentence of six months in jail. The maximum sentence that can be imposed is 14 years’ incarceration.

Police have many tactics to find those who attempt to lure children. One such technique is to pose as a child on social media platforms and communicate with the adults who contact them. When the adult attempts to meet with the supposed child offline, the police arrest the adult ‘in the act.’

Recently, questions were raised in R v Mills 2019 SCC 22 about whether the online communications between an adult and the supposed child could be presented in court without prior judicial authorization.

Mills’ Internet Child Luring Case Experience

Mills was arrested for internet child luring in 2012 after communicating with what he thought was a 14-year-old girl named Leann. They messaged on Facebook for two months until he arranged to meet with her in person. Their conversations included sexually suggestive messages and explicit photos that indicated Mills had a sexual intention.

But that 14-year-old girl was actually a police officer. The officer screen-captured all of the messages between Mills and the officer’s fictional alias, Leann, for the investigation. Those messages would prove pivotal to the prosecution. If those messages were admissible in Court, then they likely proved that Mills had a sexual purpose in wanting to meet.

Section 8 of the Canadian Charter of Rights and Freedoms provides a right against unreasonable search and seizure. Mills argued there was a reasonable expectation of privacy to his private communications and that expectation of privacy was breached without a judicially-authorized warrant, which was not obtained in this police sting.

At trial, the Facebook messages were deemed “private communications” that were intercepted by the police without a warrant. The use of a screen-capture software to capture a record of the communications was an additional seizure of the communications that also required authorization. The trial Court found that the use of a username and password on Facebook indicated that Mills had an expectation of privacy in his communications, albeit limited by the officer’s alias. However, the Court exercised its discretion to admit the evidence despite the breach of Mills’ section 8 Charter rights and Mills was convicted.

The Court of Appeal upheld Mills’ conviction but found there had been no interception of the messages. The Court of Appeal found that the police were a party to the conversation and no judicial authorization was required if there was no interception. They also said Mills gave up any expectation of confidentiality when he voluntarily sent the messages to a stranger. Therefore, section 8 of the Charter was not infringed.

Internet Luring: No Reasonable Expectation of Privacy in Online Communications

The Supreme Court unanimously upheld Mills’ conviction for child luring but there were substantial differences on their approaches to the privacy issue. Although the Justices differed in how they approached the issue of privacy and online communications, they all agreed that the conversations should be admitted in this case.

The majority decision of Justices Brown, Abella, and Gascon found that although Mills may have expected privacy in his conversations with Leann, it is unreasonable for adults to expect privacy in their online communications with children that they do not know. Online communication adds unpredictability, not privacy.

The Court noted there is a difference between conversations of adults and children who are familiar with each other, such as family, friends, professionals, and religious advisors, and those who are strangers such as in the case of Mills and Leann. This decision allows police agencies to continue their undercover sting operations to attract child lurers with fake profiles of children. The police are aware from the outset that the fictional child is a stranger to the adult and no reasonable expectation of privacy protects their conversations. No judicial authorization is required as there is no potential for a privacy breach.

Justices Karakatsanis and Wagner held there was no privacy breach for different reasons. They found there can be no reasonable expectation of privacy from the intended recipient of a message, even if that intended recipient is not who the sender expected they were. The sender cannot know if the stranger they communicate with is who they portray themselves as, due to the anonymity of the Internet. Additionally, the screen capture of the conversations was seen as a mere copy of the pre-existing written record and not subject to a prior judicial authorization.

Justice Moldaver agreed with both the majority decision of Brown, and Karakatsanis’ concurring reasons that there was no reasonable expectation of privacy. However, Justice Martin found the screen-capture of previously sent messages was a breach of Mills’ section 8 privacy rights. However, she would still have admitted the evidence despite the breach, as the breach did not bring the administration of justice into disrepute.

If you have any questions or need assistance with a legal matter, contact Filkow Law today.

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May 09, 2019

Pre-Trial Custody is the Exception

Section 11(e) of the Canadian Charter of Rights and Freedoms confers the right not to be denied reasonable bail without just cause. As such, the detention of accused individuals is intended to be the exception, while pre-trial release is the rule. Additionally, the presumption of innocence enshrined in section 11(d) of the Charter provides that one’s liberty should not be taken away prior to conviction, unless justified under section 515(10) of the Criminal Code. Therefore, release with the least onerous conditions is generally favoured over pre-trial detention.

Section 525 of the Criminal Code

Section 525 of the Criminal Code requires a judicial review of an accused’s detention if the trial has not begun within 90 days. The purpose of this section is to avoid accused persons languishing in pre-trial custody for extended periods of time while awaiting their trial.

There are sound reasons for this. It is more difficult for accused individuals held in pre-trial custody to access legal advice and effectively instruct their counsel. Section 525 provides the opportunity to have a judge reconsider whether the continued detention of an accused person is justified when a trial is not held within 90 days. It is a safeguard that protects an accused’s liberty and is consistent with the presumption of innocence enshrined in section 11(e) of the Charter.

However, until recently, there were two competing lines of authority in British Columbia about how to interpret section 525 detention review hearings. One line of authority ruled that section 525 required a two-step process. The first step required the accused to establish unreasonable Crown delay in bringing the case to trial. If established, the accused then had the burden to show a material change in circumstances under the normal section 515(10) bail provision of the Criminal Code. The other line of authority favoured a one-step process that did not place an onus on the accused to prove unreasonable delay prior to their bail review under section 525. Guidance was needed to determine which of these two competing lines of authority were correct.

Pre-Trial Custody: Corey Myers’ Experience

On March 28, 2019 the Supreme Court of Canada handed down a unanimous decision of nine Justices in R v. Myers 2019 SCC 18 that effects accused persons in pre-trial custody. The Court unanimously ruled that an accused does not need to establish unreasonable delay in bringing him to trial in order to justify his release under section 525 of the Code. In other words, the Court ruled that section 525 is a one-step, and not a two-step, process.

Corey Myers was arrested and charged with multiple firearm offences in January of 2016. He first sought bail after completing a prior sentence in November 2016, but his application was dismissed as the suggested terms of his bail did not sufficiently address the risk that Myers might commit further offences.

In March 2017, the Crown began a review hearing under section 525 as the 90-day detention period had expired. The British Columbia Supreme Court determined that the test for a section 525 hearing was a two-step process. This provided no recourse for Myers to challenge his detention order as there had been no unreasonable delay in bringing him to trial.

In January 2018, Myers pled guilty to reduced charges and was sentenced to 30 months in prison. However, Myers appealed the British Columbia Supreme Court’s decision that a section 525 bail review hearing required him to show there was unreasonable delay in getting him to trial before he could successfully get bail under that section. Although the appeal was moot since Myers was no longer in pre-trial custody, the Supreme Court of Canada exercised its discretion to hear the appeal anyway.

Pre-Trial Custody: The New Approach

In Myers, the Court unanimously set forth a new procedure for detention review hearings. The Court ruled that section 525 is an automatic provision laying mandatory obligations on the jailer and judge. Now, the jailer must apply for the hearing immediately after the 90-day period has expired and a judge must set a date and give notice of the hearing to the accused. The accused is not required to prove unreasonable delay in getting to trial to get such a review.

The Court found that Parliament created section 525 to allow a judicial assessment of whether the continued detention of the accused is justified under section 515(10) of the Criminal Code. That section sets out three possible grounds to justify the detention of an accused: where it is necessary to ensure the accused attends court; where it is necessary to protect the safety of the public; and where it is necessary to maintain public confidence in the administration of justice. The Court found that the right to a section 525 review is automatically triggered after 90 days. The Court further ruled that there is no additional requirement to also prove unreasonable delay in getting to trial beyond 90 days in order to succeed and be released from custody.

The judge in a detention review hearing may consider new evidence, changes in the accused’s circumstances, unreasonable delay, and the rationale for the original detention order, in addition to the evidence and submissions in prior bail hearings. Finally, the judge has the discretion under sections 525(9) and 526 to expedite the trial of a detained accused, giving consideration to the risk of unconstitutional delay.

Pre-Trial Custody: Call Filkow Law

The Myers decision represents a significant change in the law and process surrounding pre-trial detention which will no doubt impact the number of accused persons who seek their release from custody after an initial detention order.

For more information regarding pre-trial custody, call Filkow Law for help.

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Nov 17, 2018

Can I Change My Plea After Pleading Guilty?

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 a guilty plea and sentencing that an accused will often second guess their decision.

Can You Change Your Plea After Pleading Guilty?

If you are one of those individuals wondering “is it too late to change my plea?” you will recall when you entered your guilty plea, your lawyer and/or the court would have asked you the following questions:

Do you understand the charges against you? You would have answered, “Yes.”
Do you understand that by pleading guilty, you are waiving your right to a trial? You would have answered, “Yes.”
Is anybody forcing you to plead guilty? You would have answered “No.”
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.

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 2^nd 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.

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.

Can You Change Your Plea After Pleading Guilty? Call Filkow Law

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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Driving Law

Driving While Prohibited

Licence Prohibitions

ICBC Breaches & Accidents

Immediate Roadside Prohibitions

Frequently Asked Questions

Why did I get a driving prohibition from RoadSafetyBC?

What is the difference between a fully-licensed driver (Class 5) and a new driver (Class 7)?

What if I have an international driver’s licence?

I have my full licence (Class 5). How many points am I allowed before I will be prohibited?

I am a new driver (Class 7). How many points am I allowed before I will be prohibited?

What is considered a high-risk driving offence?

I have a letter referring me to the Driver Improvement Program. What does that mean?

I received a Notice of Intent to Prohibit. What does this mean?

I have received a Notice of Intent to Prohibit Letter. What can I do?

If RoadSafetyBC already intends to prohibit me from driving. Why should I submit a request to review my prohibition within 21 days?

I received a Notice of Prohibition. What does this mean?

How is a Notice of Prohibition different from a Notice of Intent to Prohibit?

I received a Notice of Prohibition but I am still driving. What will happen?

What are the possible outcomes after I send my letter?

What considerations does RoadSafetyBC make when reviewing my submission?

This is the first driving ticket I have ever received, and I am a good driver. Should I bother disputing it?

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