criminal law

A drug conviction can have lifelong implications.

Drug related offences, particularly trafficking and possession for the purpose of trafficking, are some of the most heavily resourced police files. Police receive extensive training and are provided unlimited resources to utilize a variety of investigative techniques for drug cases. Some of these techniques include:

• Surveillance
• Confidential informants
• Wiretaps
• Undercover officers
• Trafficking devices

The accused is often faced with a large amount of evidence against him/her. The drug case looks bad and the penalties and implications can be very serious.

Drug Offence Lawyers: Why You Need A Lawyer For A Drug-Related Offence

As drug cases in British Columbia have many layers, a wide variety of legal issues arise. It is important to go through all the evidence with a fine tooth comb and flush out the different issues.

Drug cases require strong preparation, excellent strategy, and more importantly, the right lawyer and legal team.

We have recently achieved some remarkable results for our clients with drug charges. Our extensive experience on drug cases has allowed us to develop specialized knowledge and a specific approach to handling these types of complex cases. If you need a drug offence lawyer in BC, call Filkow Law today.

The law of sexual assault in Canada can be surprising. If you polled members of the public about whether certain scenarios amount to sexual assault, many would wrongly guess that something that isn’t sexual assault is, or vice-versa. Here are five laws of sexual assault and consent law in Canada you should know.

Five Consent Laws In Canada

1. Consent must be continuous throughout the sexual activity

At first glance, this doesn’t seem like a surprising fact about the law of sexual assault. If someone consents to sex with another person, then revokes it partway through, the other person must stop having sex with them. Otherwise, the other person has committed a sexual assault. None of this is counterintuitive.

However, what if someone were to give advanced consent to having sexual acts performed on them while they’re unconscious? They could even have a particular sexual fantasy about having sex acts performed on them while sleeping, or about being woken up by a sex act.

It turns out that Canadian law still says that’s sexual assault. It’s simply illegal to perform a sexual act on someone who is in a state where they can’t consent to sex, like being unconscious. There are no exceptions, not even if someone gives their sexual partner consent in advance.

2. Apparent consent is not necessarily actual consent

Canadian law says that in certain circumstances, a person can seem to consent to sex, but their consent wasn’t true consent. In such cases, the seemingly consensual sex was actually a sexual assault.

One example of this is if someone is in a position of authority and uses it to induce another person into consenting to have sex with them. The person in a position of authority doesn’t need to coerce the person below them. It’s enough if they use their position of authority to induce the person below them to consent to sex with them. 

Another example of this is if someone has unprotected sex with another person without disclosing to them that they’re HIV positive. Assuming the other person wouldn’t have consented to sex if they had known about their sex partner’s HIV positive status, the HIV positive person is guilty of a sexual assault. The law says that the HIV positive person obtained the other person’s consent by fraud, and therefore the other person never truly consented to sex with them.

The example above might raise concerns about what amounts to fraudulently obtaining consent to sex. The law doesn’t say that a person obtains consent to sex fraudulently because, for example, they lied about their age, income, or sexual history, and had sex partner known the truth they never would have consented to sex with them. The fraud must have put the victim’s health at serious risk or related to the central character of the sex.

3. Consent occurs entirely in a person’s mind

Canadian law says that consent is entirely a matter of what someone was thinking at the time. If they thought “I don’t want to do this”, then they were not consenting to sex, even if they said out loud “this is great, let’s keep going”.

This might seem scary. It suggests that someone could theoretically be accused of sexual assault because their sex partner didn’t want to have sex with them, even though they said the opposite at the time. However, in such a case the person accused of sexual assault would have a defence of honest belief in consent. 

Honest belief in consent means that if an accused honestly believed their sex partner was consenting and took reasonable steps at the time to find out if their sex partner was consenting, then they’re not guilty of sexual assault.

4. A drunken consent is still consent

There are some people who agree with the message “if you’re too drunk to drive, you’re too drunk to consent to sex”. This is not the law in Canada, but there is a level of intoxication where a person loses the capacity to consent. 

The degree of intoxication required to no longer be legally allowed to drive is not high. In British Columbia, this is only 0.05 mg alcohol in 100 ml of blood. Most people will have blood alcohol levels above that number if they consume three standard drinks within an hour or two.

Having a few standard drinks will certainly be enough to impair someone while driving, but it will not be enough that the law says they can no longer consent to having sex with another person.

A person will be guilty of sexual assault if they have sex with someone so intoxicated that they no longer have the capacity to consent. To reach that level, there should be signs that the intoxication is very high. Examples of the kind of evidence that would support a person’s incapacity to have sex includes vomiting, difficulty standing up, slurred speech, slouching, sleepiness, stumbling, and confusion.

5. No one can bring up a sexual assault complainant’s sexual history at trial

As a starting point, neither the Crown prosecutor nor the defence lawyer is permitted to bring up any sexual history of a sex assault complainant, unless they get permission from the judge first. This might not seem surprising because a sexual assault complainant wouldn’t want their privacy invaded by the trial process, but this rule has a few surprising elements to it.

First, the rule applies both to the defence and the prosecutor. Even though the prosecutor is the one attempting to obtain justice for the complainant, they’re not allowed to bring up a complainant’s sexual history as part of their case. They need permission from the judge first, just like the defence does.

Second, the rule applies to all sexual history, even if the complainant and accused have been married for 40 years and have had many children together. By default, the jury is not allowed to hear about the married couple’s sexual history at all. 

Third, there is no parallel rule protecting the privacy of the accused. The Crown can cross-examine them as much as they want on their sexual history, without limit, subject to the usual rules of evidence (e.g., relevance, self-incrimination, etc.).

Fourth, the rule applies to all sexual communication. This means that in a case where an accused and complainant were texting each other sexual things before the incident (e.g., the complainant messaged the accused “I can’t wait to f*** you tonight”), those communications are not admissible in court unless the judge allows it.

Fifth, in the vast majority of cases the judge doesn’t allow the prior sexual history of the complainant to be admitted at trial. The legal test for allowing this kind of evidence to be admitted is high and difficult to overcome for the defence. Even in a case where an accused is alleged to have sexually assaulted a complainant during BDSM, the accused and the complainant’s prior history of engaging in BDSM together is presumptively inadmissible. This could distort the jury’s view of the case because they might hear that an alleged sexual assault occurred in the context of BDSM without knowing the accused and complainant had previously engaged in consensual BDSM. Without that knowledge a jury would be much more inclined to think the accused is guilty because it would be strange to imagine a complainant agreeing to BDSM the very first time they had sex with someone else.

Finally, the rule exists not only to protect the privacy of the complainant, but to guard against the “twin myths” of sexual assault. These myths are that a woman is more likely to have consented to sex because of their sexual history, or that because of their sexual history they’re less worthy of being believed. Canadian law does not trust juries with the twin myths of sexual assault. Instead of judges warning juries not to think badly about the case, they prevent juries from hearing any of the evidence at all.

Consent Laws In Canada: Contact Filkow Law

If you have any more questions surrounding sexual assault or consent law in Canada, call Filkow Law today.

When the police suspect someone of criminal activity, it’s common for them to obtain search warrants to search the suspect’s home, car, or other storage sites. When they do this, they’ll often seize many items. Sometimes, the suspect doesn’t get charged with a crime, or at least they’re not charged yet, but the police are still holding on to the seized items for a long time, depriving their owner of them. In some cases, this can even go on for years.

What do the police do after they’ve taken things they obtained with a search warrant?

The first thing that’s supposed to happen after the police seize things from a suspect is that they’re supposed to get an order from a justice, “as soon as practicable,” that allows them to legally keep those things for a limited time period. If they don’t do this, they’re illegally possessing the suspect’s property. The police then need to satisfy a justice that they should be allowed to keep the seized things for the purpose of an investigation, criminal trial, or other (legal) proceeding.

The police don’t have to prove anything to satisfy a justice to give them an order to keep the seized things. A simple explanation is usually enough, like, “we took this person’s computer and business documents because we think we’ll find evidence there to support our fraud investigation against them.” The justice just needs to be “satisfied” the police need the items for their investigation.

Once the justice is satisfied, they grant the police an order to keep the seized things for 90 days. The suspect doesn’t get the chance to respond to the police’s justifications at this stage, nor do they even get notified that a justice granted the police the initial 90-day order.

So how can I get my stuff back if the police have a right to keep it for 90 days? Do I get it back after that?

The answer to these questions are “it depends.” If the police seized things that they don’t require for their investigation or any other proceeding, then they should return those things, provided the suspect is legally entitled to possess them. However, it’s not possible to get an order from a judge during the first 90 days for the police to return things they’ve seized unless it’s creating some hardship for the suspect. If there’s no hardship, the suspect can only apply after the first 90 days are expired. Before that happens, the police will notify the suspect that they’ll be applying to keep the seized things longer than 90 days. Often, the police ask for a nine-month time extension after the first 90 days after up.

If the police seized things from someone other than the suspect, i.e. a third party, then that third party can apply at any time to have their things returned to them. Usually, a judge, rather than a justice, decide whether to order that things belonging to a third party should be returned to them.

The police took a bunch of stuff unrelated to any criminal investigation. Can I get that stuff back, at least?

The police will often seize money, cars, or other property from people they’re investigating. Although the seized things might have nothing to do with their criminal investigation, the police will take them to seek to have them forfeited through civil forfeiture proceedings. That’s a procedure in civil court where the government alleges that things seized from a suspect were used to commit a crime (e.g. a vehicle used to transport drugs) or obtained by committing crimes (e.g. money earned from the sale of illegal drugs). If a civil court judge is satisfied that the seized things are “tainted” in this way, then they can order the property has to be forfeited (i.e. given up) to the government.

When the police obtain an order from a justice to keep seized things for the initial 90 days, the justice also considers whether those things are required for civil forfeiture purposes. If they are, they’ll grant the order for that reason too. The justice doesn’t only focus on whether the seized things are for a criminal investigation.

After the initial 90 days, the police must apply for a time extension to keep the seized things beyond 90 days. Many times, their application is uncontested by the suspect. However, if it becomes contested, then a judge, rather than a justice, will usually decide whether to grant the time extension. At that stage, the judge must “have regard to” the nature of the police investigation before granting a time extension to the police. This is a slightly more stringent test than the test for the initial 90-day order.

At the 90-day stage, it’s possible for a judge to find that the police have been too slow to refer seized things to civil forfeiture if that was the reason police seized those things in the first place. If that happens, the suspect might get their things back. If not, the judge will grant the extension to the police. The suspect might then need to argue their case in civil court once civil forfeiture proceedings are underway unless the suspect gets charged with a crime before the time extension expires.

The police’s investigation is complete, and I’ve been charged with a crime. Does that change anything?

If the suspect is charged with a crime, it changes everything. The police no longer require any orders from a judge or justice to keep the things they seized from the suspect (once charged, the suspect is now called “the accused”). The police are legally entitled to keep the seized things until the end of the criminal proceedings, where the accused will be found either guilty or not guilty.

Once the suspect is charged with a crime, the police also don’t need any more judicial orders to keep the things they’ve taken for civil forfeiture purposes. They can also keep those things until the end of the criminal proceedings. The police can still choose to refer those things to the civil forfeiture office, but often they’ll wait for the outcome of the criminal proceedings instead.

If the accused is found guilty, the Crown can apply in criminal court to forfeit the accused’s seized things. This is a similar procedure to civil forfeiture proceedings but takes place in criminal court after the verdict.

Once again, if the police seized things from a third party (i.e. someone other than the accused), the third party is allowed to apply to have their things returned to them at any time, even if the suspect/accused has been charged with a crime as part of that police investigation.

All of this is pretty unfair, isn’t it?

The policy of using civil forfeiture as a means to tackle crime is controversial. The power of the police to take things from people, and to keep them with very little proof they have a good reason to keep them, also raises concerns about the extent of police power. The way the law is structured relies heavily on the police acting in good faith.

However, a suspect isn’t deprived of all remedies when the police take their things. The rights of innocent third parties is protected by the law. The framework around civil forfeiture allows some flexibility to civil court judges to return property to suspects.

Some judges have granted accused people remedies under the Charter of Rights and Freedoms, where the police were cavalier about following the proper procedures to keep things they had seized from the accused. The first step to fighting back, of course, is getting a lawyer to look at the issue.

Contact Filkow Law today

If the police have filed a search warrant or have had your seized belongings referred to civil forfeiture, call Filkow Law today. Our lawyers have vast criminal law experience and are equipped with the right tools to assist your case. Contact us for a consultation today.

Many people accused of a crime have no idea what the possible outcomes could be to the accusation. Below is a list of possible outcomes after someone has been accused of a crime in Canada.

(1) No charge

The Crown prosecutor decides their charging standard is not met and does not approve/lay charges.

To approve a charge in British Columbia, the Crown must be satisfied that: (a) the charge/prosecution is in the public interest; and (b) there is a “substantial likelihood” of conviction.

In BC, the standard of proof is higher than other provinces. In Ontario, only a “reasonable prospect” of conviction is required and, in Alberta, the standard is “more likely than not”.

Another difference in charge assessment is that the Crown approves criminal charges in BC – not the police. In other provinces, such as Ontario, Alberta and Manitoba, the police approve charges without Crown approval.

(2) Acquittal/Not guilty

The judge or jury makes a finding of “not guilty” after trial. This occurs when the judge or jury is not satisfied that the accused committed the offence beyond a reasonable doubt.

(3) Charge withdrawal

The Crown decides to withdraw, or undo, an approved charge. This outcome is rarely utilized by the Crown in BC. The Crown in BC more frequently enter a stay of proceedings (see below).

(4) Stay of proceedings

The Crown “stays”, or stops, the prosecution. This is commonly how the Crown drops charges in BC. Legally, it is possible for the Crown to reinitiate a prosecution after a stay, however it is rare.

(5) Alternative measures

The Crown diverts an accused’s prosecution from the courts to Community Corrections (or probation). If the accused is accepted into the program, they must complete some requirements that are like probation. If the accused successfully completes the requirements, the Crown will enter a stay of proceedings on the charge. The Crown can also divert a case before charging it.

(6) Peace Bond

The accused acknowledges the complainant has a reasonable fear of them and agrees to enter into conditions for up to one year. A peace bond is not a criminal charge. It is similar to what many people refer to as a restraining order.

Peace bonds do not involve the accused admitting guilt, instead, they acknowledge the complainant’s reasonable fear of the accused. The conditions of a peace bond include restrictions on contact with the complainant. There may be various exceptions depending on the circumstances.

(7) Absolute discharge

The judge finds the accused guilty of an offence but does not convict them. This is like a sentence of mercy. Because the accused is not convicted they do not receive a criminal record and they do not receive any punishment (conditions, fines, jail, etc.).

(8) Conditional discharge

The judge finds the accused guilty of an offence and imposes up to three years of probation. This is like an absolute discharge but with conditions. If the accused is convicted of breaching their probation, the court may revoke the conditional discharge and convict the accused. After completing the conditions, the discharge becomes absolute.

(9) Suspended sentence

The judge convicts the offender and imposes up to three years of probation on them. This results in a criminal record but no fine and no jail.

(10) Fine

The judge convicts the offender and imposes a fine. This is not like a fine imposed for a traffic violation and failure to pay can result in jail time.

(11) Conditional sentence

The judge imposes a jail sentence on the offender but allows them to serve their sentence in the community under certain conditions. This is sometimes called house arrest. The maximum time for the conditional sentence is two years less a day. A further three years of probation can be imposed at the end of the conditional sentence.

(12) Intermittent sentence

The judge imposes a jail sentence on the offender but allows them to serve their sentence a few days at a time. The offender usually serves an intermittent sentence on weekends. They go into custody on Friday evening until Sunday. This may allow an offender to maintain employment. The offender is also placed on probation on the days they are not in jail.

(13) Jail – provincial time

The judge imposes a jail sentence on the offender of up to two years less a day. This is referred to this as “provincial time” because these sentences are served in provincial correctional centres. Provincial time can be followed by up to three years of probation.

(14) Jail – federal time

The judge imposes a jail sentence on the offender of two years or more. This is referred to this as “federal time” because these sentences are served in federal correctional facilities. There is no probation for federal time.

Charged with a criminal offence? Call Filkow Law

If you are being investigated, or have been charged with a criminal offence call the lawyers at Filkow Law for representation and expert advice.

In BC, we have an online system that tracks criminal and traffic cases in provincial court. It also tracks superior court civil cases and appeal cases. You can find this at the Court Services Online website. For criminal cases, click on “search traffic/criminal” then enter the name of the person you want to search.

What information is included on Court Services Online for criminal matters?

You can obtain quite a bit of information from doing a search query on someone on Court Services Online. Criminal and traffic cases will be listed. You can see the court file numbers. Those starting with “AH” refer to traffic matters. You can see the police file number (called “Agency File #”), the court location, date/time, reason for court date, and the last result.

If you click on “view”, you can see even more information, including the charging date, the alleged offence date, the offence charged, all the court appearances, and the outcome under “sentences/disp.”.

What do all the three letter abbreviations mean next to the court appearances?

There’s many possible two or three letter acronyms next to the court dates found under the “reason” column (as in, “reason for court date”).

Court Date Abbreviations

For the first court date, this will be listed as “FA” for First Appearance. Regular court dates are listed as FxD for “Fix Date”. That means those dates were set to set another court date. That might seem silly, but this exists whenever an accused hasn’t decided yet whether they’ll choose to plead guilty to their charges or set them for trial.

CWC: Consult With Consult & JIR: Judicial Interim Release

The letters “CWC” stand for Consult With Counsel. This means the accused doesn’t yet have a lawyer. Their next court date exists to tell the court whether they’ll be hiring one, and if so, who it’ll be. The letters “JIR” stand for Judicial Interim Release. This means the court date is set for a bail hearing to determine whether the accused will be released from custody (i.e. jail) pending the outcome of their charge.

CWI: Compliance With Instructions

Another acronym is CWI, which stands for Compliance With Instructions. This can show up when an accused has been referred to alternative measures, a type of mini-probation that, if completed, means the Crown prosecutor will drop the charges. The court date exists to confirm with the court that the accused completed those requirements.

WI: Warrant Issued

An important acronym is WI, which stands for Warrant Issued. This occurs whenever an accused fails to appear for court when they knew they should have. If a warrant exists for your arrest, it’s better to turn yourself in rather than wait until the police arrest you. Getting re-released on bail will be more likely that way.

So, everything going on with someone’s criminal charges is visible to the public?

Yes. Without any application for a publication ban at a bail hearing, court information will remain visible to the public. It’s likely that many employers are aware of the existence of Court Services Online, and they may look someone up to do a quick “background check” on them.

The potential use of Court Services Online by prospective employers is hardly fair, because the accused could be rejected for a job application without having ever been found guilty of anything. Ongoing charges get listed on Court Services Online, regardless of the strength of the prosecution’s case.

Worse yet, prospective employers usually need to get the consent of applicants before doing background checks on them. With Court Services Online, they can look up ongoing criminal matters without any consent from the applicant, or even without the applicant knowing they were searched in this way.

Is there any way to erase my information listed on Court Services Online?

The best an accused can do is ask the judge for a publication ban during their bail hearing. The judge can only order such a ban when the issue of bail is live. They can’t make such an order at other types of hearings. Even then, if a judge orders a publication ban, the entry on Court Services Online won’t be removed altogether. Instead, it’ll still exist and say “ban imposed”. It won’t be possible to view the charges, but other information may still be visible.

Criminal Record Search in BC

Once the charges are dealt with, the entry on Court Services Online will remain for a certain time, after which they’re usually removed. The time varies depending on the outcome. If the accused is convicted (i.e. if they received a criminal record as part of the outcome) then the entry might remain indefinitely, or until the accused obtains a record suspension (i.e. a pardon).

Other expiry dates include one year for a peace bond or stay of proceedings (i.e. if charges are dropped) and perhaps longer for a conditional discharge (i.e. for probation with no conviction/no criminal record). It’s unclear how long the entries remain because it depends on the administrative decision-making of the government staff that runs Court Services Online.

If an old charge remains visible on Court Services Online, and enough time has passed that it should have been removed, it’s possible to simply ask the Court Services Online staff to remove it. They may not readily be responsive. If they refuse to remove it and offer no way to appeal their decision, the only remedy available is to apply to a judge in superior court to review their decision.

Is anyone’s privacy protected after they’re charged with a crime?

Oddly, criminal matters being heard in superior court don’t appear on Court Services Online. This is ironic because superior court only deals with criminal matters where the Crown has proceeded by indictment, i.e. where the Crown consider the charges to be on the more serious end of the spectrum. That means the privacy of people accused of more serious crimes is better protected online than for people accused of less serious crimes.

The only class of people who will not appear on Court Services Online at all are youth. This is to give effect to the Youth Criminal Justice Act, which says young people should receive enhanced privacy protections.

Need legal assistance? Contact Filkow Law

If you are being investigated, or have been charged with a criminal offence call the lawyers at Filkow Law for representation and expert advice.

Filkow Law welcomes lawyer Georges Prat to our legal team. Georges obtained his LLB from Cardiff University in 2015. At university, he excelled in criminal law and mooting. He won the 2nd year mooting competition at the UK’s Supreme Court in front of a Supreme Court justice. The following year, he was elected to the Student’s Law Society’s Executive Board as Master of the Moots.

As a natural barrister, Georges sought to work in the area of law most suited to court advocacy: criminal law. Upon returning to Canada, he articled at The Law Office of Alexander Ejsmont, a sole practising criminal law firm that had previously been based out of Toronto. He practised on his own for several years before eventually joining Filkow Law. Georges has appeared at all court levels in B.C., including in the Supreme Court of BC during one of the lengthiest murder trials in the history of the province, securing an acquittal for his client as junior counsel. Georges is also a member of the Canadian Bar Association, the Criminal Defence Advocacy Society, and the Trial Lawyer’s Association of BC. He prides himself on thoroughly advising clients and a high attention to detail.

Clients benefit from Filkow Law’s deep and broad knowledge and expertise of criminal law, driving law and the criminal justice and court system. Filkow Law is known for its skilled advocacy, its highly accessible culture, its signature strategic approach to every case, and the exceptional results achieved.

The lawyers at Filkow Law have excellent reputations with the police, prosecutors and the courts across British Columbia. In addition to their courtroom skills, the lawyers at Filkow Law advocate for and achieve decisive victories away from the public eye, often before the case ever sees a day in court.

If you find yourself being investigated or charged with a criminal law offence in British Columbia, call Georges Prat today.

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.

Contact Anthony Robinson & Filkow Law

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. Anthony Robinson and the Filkow Law team have 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.

Witnesses giving evidence or testifying in court is a fundamental part of the criminal justice system. A single witness can make or break a case.

Types of court witnesses in a criminal matter

There are generally three kinds of witnesses: (1) eyewitnesses, (2) expert witnesses and (3) character witnesses. Eyewitnesses testify as to what they saw or heard. For example, if Mr. Jones saw someone break into a home, Mr. Jones would be an eyewitness who could give evidence about who and what he saw. Similarly, if Ms. Jones heard the sound of breaking glass, Ms. Jones would be an eyewitness who could provide evidence about what she heard. Both the prosecution and the defence can call an eyewitness to give evidence. After a witness has given their evidence, the other side will have an opportunity to cross-examine that witness in court.

Expert witnesses provide an opinion on an issue that is beyond the experience and knowledge of the judge or jury—for example, the diagnosis of a mental disorder or the cause of a motor vehicle accident. A judge must qualify expert witnesses before they are allowed to testify. Expert witnesses cannot give evidence as to whether they think an accused person is innocent or guilty, but their opinion can strongly impact the judge or jury.

Character witnesses may be called to speak to the good or bad character of a person. Character witnesses do not give evidence regarding the incident itself but rather their knowledge of a person’s reputation regarding certain character traits, such as honesty or morality. Generally, the Crown is prohibited from adducing evidence about an accused person’s character unless the accused brings it up first. For example, if Mr. Jones is accused of fraud, he might say that he would never commit a fraud because he is such an honest person. This would open the door for the Crown to bring in their own witnesses as to Mr. Jones’ bad character.

What qualifies a court witness?

There are few qualifications for witnesses. A witness must be able to understand the nature of an oath or solemn affirmation and communicate evidence. In cases where a witness does not understand an oath or solemn affirmation, by reason of mental disorder or otherwise, they can still testify by a promise, to tell the truth. If a witness is 14 years or younger, they must be able to understand and respond to questions and promise to tell the truth.

What qualifies an expert witness?

Expert witnesses are subject to more qualifications than ordinary witnesses. The proposed expert witness must: 

• be relevant; 
• be necessary to help the judge or jury;
• not be excluded by any other rule of evidence; and 
• must be “properly qualified.”

The necessity of an expert will depend on whether the opinion is outside the realm of ordinary human experience. Common areas where experts are required include:

• accident reconstruction;
• alcohol or drug analysis;
• injury causation;
• arson;
• cell phone towers;
• digital analysis (cellphones, computers, etc.)
• social science
• mental health; and
• DNA.

The judge makes the final decision about whether an expert is qualified or not based on their education, training and experience.

What qualifies a character witness?

There are no special qualifications for character witnesses. If you are giving evidence of the accused’s character, you can only give testimony as to the general reputation of the accused for a certain character trait. Common traits are honesty and morality. 

For example, if Mr. Jones is giving evidence about the character of the accused, he might testify to the following:

• Mr. Jones’ own credibility and reputation;
• Mr. Jones’ relationship and connection to the accused; 
• how Mr. Jones knows the general reputation of the accused in the community; and 
• the reputation of the accused is regarding a particular character trait.

Mr. Jones cannot give evidence about his personal opinion or specific good acts the accused has performed in the past unless those acts are demonstrative of the relevant character trait.

What if I incriminate myself in someone else’s trial?

As a witness, you can be compelled to answer a question even if it may incriminate you or establish your liability in a civil proceeding. However, that compelled testimony cannot be used in another proceeding against you except for prosecuting perjury or giving contradictory evidence. For example, if Mr. Jones testified that he remembered witnessing an assault because it happened near his favourite bar, and he had just finished drinking five beers before driving past the crime scene, the Crown cannot use that admission as evidence against Mr. Jones in a drinking and driving case against Mr. Jones. However, if there was an impaired driving case against Mr. Jones, and he testified that he only had one glass of wine, he can be cross-examined on his testimony from the other proceeding to show that he is not credible or deliberately gave a false statement under oath or both.

What if the accused is my spouse?

Every witness in court can be compelled to testify – even if the accused is their spouse. However, no person is required to disclose any communication made to them by their spouse during their marriage. For example, Ms. Jones could be compelled to answer questions about whether she saw her husband, Mr. Jones, damage their neighbour’s car. Ms. Jones could not be compelled to answer questions about whether Mr. Jones discussed his plans to damage their neighbour’s car with her.

Types of Witnesses In Court: Conclusion

Understanding the role of each court witness is a vital part of trial preparation and strategy. The lawyers at Filkow Law have over 50 years of experience dealing with all types of witnesses. If you are in need of legal assistance, please feel free to give us a call.

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

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

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

Related: Sentencing for Fentanyl Charges in BC

Vancouver Drug Decriminalization: What Kinds of Drugs And How Much?

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

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

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

Vancouver Drug Decriminalization: How Drastic is the Change? 

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

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

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

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

Vancouver Drug Offences: Call Filkow Law

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