Sweeping Criminal Code Amendments now in Force

The massive criminal law Bill C-75 came into force on September 19, 2019 and is now the law of the land. The bill has resulted in some sweeping changes and far reaching consequences for the Canadian justice system. Generally speaking, the intent of the new legislation is to help streamline the court process by creating various efficiencies. It remains to be seen whether all of these changes only benefit police and Crown counsel. We feel that there may be no benefit whatsoever to accused persons. Here are some of the changes:

Offence Reclassification 

Bill C-75 has changed 118 offences to hybrid offences where Crown may elect to proceed by indictment or by summary conviction. The default maximum penalty for summary offences has been increased from 6 months to 2 years jail. The limitation period by which a charge must be approved has increased from 6 months to 12 months for summary matters, meaning police now have up to a year to lay a summary charge. Though the intent of the legislation, apparently, is not to increase top end of the sentencing range , we feel that inevitably jail sentences will become lengthier for summary offence convictions.

Preliminary Inquiries

Prior to the amendments, where the Crown proceeded by indictment, an accused could have a preliminary inquiry in Provincial Court prior to the trial. Much like an examination for discovery, defence counsel at a preliminary inquiry has an opportunity to test a complainant’s evidence through cross examination. Under the new legislation, a preliminary inquiry is now limited to the most serious offences – those where the accused is liable to a 14 year maximum period of imprisonment. For many serious offences where the maximum jail sentence is 10 years, (such as sexual assault) an accused is no longer able to test the evidence in a preliminary inquiry.

Jury Selection

Traditionally the Crown and the Accused could use their discretion to exclude a potential juror without having to provide an explanation (pre-emptory challenge). This is no longer the case. Jury selection in Canada is now pretty much a random draw from the jury pool.

Intimate Partner Violence

The Criminal Code now incorporates a definition of domestic violence and clearly treats violence in the domestic context as an aggravating factor. The changes include higher maximum penalties for intimate partner violence and codifies the sentencing principles of denunciation and deterrence in these cases.

Remote Court Appearances

New changes to the Criminal Code now permit an accused person or a witness to make court appearances by telephone or videoconference so long as the court finds it appropriate to do so in the circumstances and if arrangements have been made in advance. Hopefully this provision will not be misused so as to take away a judge’s ability to pick on the nuances of a witness’s body language when assessing credibility.

There are many other changes that Bill c-75 has brought to the criminal law. Among them are changes to the Youth Criminal Justice Act, Judicial Case Management, and Administration of Justice Offences. As stated, these Criminal Code amendments were largely made with the goal of streaming and finding efficiencies in the criminal justice system. The intent of the changes is to promote fairness and to reduce court delay. It remains to be seen whether some of these changes will be challenged under the Charter of Rights and Freedoms. We will certainly be watching as these issues develop and may, indeed, be challenging aspects of these new provisions on our clients’ behalf.

No “Schneider loophole” in Canadian Sex Assault law

We recently saw this news item regarding what certainly seems like a sexual assault case that occurred in Alaska: Link to the Source Article.

Make no mistake, the alleged sexual act in this case would clearly be a chargeable offence in Canada.

Under section 265(1)(b) of the Criminal Code of Canada, a person commits an “assault” when he attempt or threatens, by any act or gesture, to apply force to another person, if he has, or causes that other person to believe that he has the present ability to affect that purpose. This section applies to all forms of assault, including sexual assault.

Under Canadian law, there is no requirement that actual contact be made for an assault, or sexual assault, to have occurred. Rather, it is enough to threaten an assault by an act or gesture. This means, for example, that a person in Canada could be convicted of assault for merely clenching his fist and threatening to punch another person. There is no need for the Crown to prove that any contact was made. An intentionally threatening act or gesture itself is all that that the Crown needs to prove in an assault case, including a sexual assault case.

Unlike the Alaska case, Canadian prosecutors would have no difficulty approving a sex assault charge against somebody alleged to have committed an act such as Mr. Schneider. Clearly, the complainant, Lauren, was not consenting. Because Canadian law does not require actual touching for an assault conviction, even the threat of ejaculating onto an unwilling participant could lead to a sexual assault conviction.

Under the Criminal Code of Canada, sexual assault is an assault which is committed in “circumstances of a sexual nature such that the sexual integrity of the victim is violated”. The legal test amounts to whether viewed objectively, the sexual context of the assault is apparent to a reasonable observer. It is hard to imagine that the actions of Mr. Schneider could amount to anything less than a sexual assault under Canadian law. The “Schneider loophole” is already closed north of the border.

The SNC-Lavalin Affair: What it highlights for the Canadian justice system

In recent weeks the news headlines have been occupied by the story of Canada’s former Attorney General and Justice Minister Jody Wilson-Raybould and the alleged interference by the Prime Minister’s office in the criminal prosecution of Montreal-based engineering and construction firm SNC-Lavalin. Ms. Wilson-Raybould has alleged that the PMO put inappropriate political pressure on her to review the decision whether to proceed with a traditional criminal prosecution against SNC-Lavalin or to proceed with a Deferred Prosecution Agreement, a form of alternative measures, rather than a traditional prosecution. Aside from whether or not these allegations are true and whether they amount to inappropriate political interference in the justice system, what I believe this affair really highlights is how well the Canadian justice system is set up to protect the rule of law and the independence of prosecutions in Canada.

The SNC-Lavalin affair illustrates that in Canada we have a system that is set up to prevent overt political interference with prosecutorial discretion. Further, when it looks like that line may have been crossed it is a front-page news story that can threaten to unravel the authority and confidence of the governing political party. This type of political interference and influence is so common in other countries that it is actually built into systems of governance.  Perhaps surprisingly, this is not something that is solely built into the systems of dictatorships, countries with emerging democracies, or overt corruption issues. Political interference is built into the justice system of the United States of America.

In the U.S., most states and local jurisdictions’ head prosecutors are elected to office. They are at the whim of the electorate. Public perception of decisions they make in directing prosecutions – and even their ability to secure convictions – will determine whether they keep their job. U.S. prosecutors are politicians. The way that judges get appointed and stay appointed is more complicated but it involves elections. Some judges are appointed, others are elected, but often, even the appointed judges must seek to keep their appointments through retention elections.  Thus, in the U.S., most judges – the ultimate decision makers – are at the mercy of the voting public. They, too, are effectively politicians.

What this means for the U.S. justice system is that overt involvement and interference of political considerations in prosecutions is an everyday reality. If a state-level prosecutor had a choice to defer a criminal prosecution against a domestic company that employs 9000 people – when the allegation did not involve loss of life and criminal negligence – any other choice would be political suicide. In the U.S. that decision would never have to reach the level of Congress, the Senate or the White House.  I believe that the decision to defer the prosecution would be made, with little controversy, by a district attorney. If the decision ran contrary to public opinion that prosecutor might pay the price at the next election. The political accountability of prosecutors in the U.S. greatly reduces the likelihood of any interference from congress, the Senate or the president. I believe that something like the SNC-Lavalin affair would never be front-page news under the U.S. system.

However the SNC-Lavalin affair ends, I believe this matter is a good reminder of how balanced the Canadian justice system is. The affair points out the division of powers between the Prime Minister’s Office and the office of the Attorney General. It highlights that Canada’s Attorney General is meant to be independent, and is not to be unduly pressured, even by the Prime Minister. No system of justice is perfect, certainly including ours, but SNC-Lavalin illustrates that our justice system was designed to maintain prosecutorial independence. I believe that prosecutorial independence is key to the best chance of consistently fair and just outcomes of criminal investigations.

December 18, 2018 – New Police Powers for Breath Testing to Start

In our last blog we wrote about some upcoming changes to the criminal law in Canada relating to impaired driving as well as a recent Supreme Court of Canada case relating to impaired driving. For a more in-depth look, please click here.

In overview, a part of Bill C-46 comes into force on December 18, 2018. This part of Bill C-46 expands the powers of police to require drivers to perform a road-side breathalyzer test. Previously, the police needed to have reasonable suspicion that a driver had alcohol in their blood and was operating a vehicle before demanding that the driver provide a road-side breath sample. If the driver refused, they could be charged with the criminal offence of refusing to provide a breath sample. Under the new changes to the law the police no longer need reasonable suspicion to demand a road-side sample of breath from a driver, but can demand it from any driver at any time. Put simply, what this means is any police officer can pull over any driver at any time and demand a road-side breath test for no reason and if the driver refuses, they can be charged with the criminal offence of refusing to provide a sample.

The Supreme Court of Canada recently released its decision in R v Gubbins (2018 SCC 44). In that case the Court restricted the ability of accused persons to routinely have access the maintenance records of breathalyzer machines.

Just yesterday the Court released its reasons for judgment on a case called R v Cyr-Langlois (2018 SCC 54). What that case centred around was the requirement for a police officer investigating an impaired driving offence to personally observe the accused face-to-face for 15 to 20 minutes before taking the 2 official breathalyzer tests at the police detachment. This requirement exists in law to make sure that the breathalyzer test results are not skewed by residual mouth alcohol. If an accused person burps/belches or vomits, and there is alcohol in their stomach, that alcohol can be present in their mouth for up to 20 minutes. That alcohol left in their mouth can make a breathalyzer show a much higher result than the actual amount of alcohol in the person’s blood which the test is meant to measure. So, it can skew the results and give a false positive for driving over the legal limit.

In Cyr-Langlois the investigating officer who gave evidence at the trial failed to observe the accused face-to-face before the 2 tests. The majority of the Court found that in the circumstances that was not enough to find the accused not guilty of the charge.

In an impaired driving trial the deck is already stacked against the accused in an unusual way. In s.258(1)(c) of the Criminal Code there is a presumption that a breathalyzer machine provides an accurate result as long as certain conditions are met. Once those conditions are met it is then up to the accused to show the court that the breathalyzer was wrong. This is a rare situation in criminal law where the burden of proof switches from the prosecutor to the accused person. It is called a reverse-onus.

In Cyr-Langlois the Court found that even though the investigating officer did not do the proper observations to make sure the accused did not have residual mouth alcohol, that alone was not enough to rebut the presumption that the breathalyzer machine gave an accurate result.

Essentially, what this judgment does is require an accused person to give evidence at their trial whenever an investigating officer fails to adhere to proper procedure in doing face-to-face observation before the tests. An accused person in this type of scenario already has the burden of facing a reverse-onus. Now, they will have the additional burden of giving up their right to remain silent and giving evidence at their trial, if they want to say that they had residual mouth alcohol when the breathalyzer test sample was taken. Once an accused person takes the stand to give evidence at their trial they open themselves up to cross-examination on any relevant issue. So, an accused may have vomited in their mouth before the test while not being properly observed by the investigating officer, but instead of being able to rely on the fact they weren’t observed properly to show a problem with the test, they will now have to give evidence to tell the judge about it. In doing so an accused will then have to answer a myriad of other questions that may incriminate them or assist the prosecutor in their case. Accused persons have a right not to have to do that. It is a very difficult and unfair position for the accused to be in.

In combination with the changes to the law coming into effect on December 18, 2018 these 2 cases have a great limiting effect on the ability of accused people to defend themselves from impaired driving allegations.

It will be interesting to see how the scape of impaired driving litigation changes in the near future.

New Impaired Driving Laws – Increased police powers; Decreased right to disclosure.

The federal government passed Bill C-46 and it has been coming into force over the last while. It is a companion piece of legislation to the Cannabis Act that made recreational Cannabis use legal in Canada. Bill C-46 deals with Cannabis drug impaired driving and related issues. But what is also in the Bill and has gone somewhat under the radar is that is also amends the criminal law in Canada relating to alcohol impaired driving.

A portion of Bill C-46 comes into effect in December 2018, just in time for the holidays. This portion of the Bill expands the powers of police to require drivers to perform a road-side breathalyzer test. Previously, the police needed to have reasonable suspicion that a driver had alcohol in their blood and was operating a vehicle before demanding that the driver provide a road-side breath sample. If the driver refused, they could be charged with the criminal offence of refusing to provide a breath sample. Under the new law the police no longer need reasonable suspicion to demand a road-side sample of breath from a driver, but can demand it from any driver at any time. In a nutshell, what this means is any police officer can pull over any driver at any time and demand a road-side breath test for no reason and if the driver refuses, they can be charged with the criminal offence of refusing to provide a sample.

This is a vast restriction on the rights and freedoms of Canadian drivers. Over the coming years and months there will undoubtedly be numerous court challenges to the validity of this law. Hopefully those challenges will be successful as the potential for abuse of power by officers under this law is great and it erodes respect for the freedoms of Canadian drivers.

Interestingly enough, on October 26, 2018 the Supreme Court of Canada released their decision in the case of R v Gubbins (2018 SCC 44). The Supreme Court there looked whether the Crown needed to routinely disclose to accused persons the maintenance records of breathalyzer machines used to prosecute criminal impaired driving cases.

Normally the Crown has a duty to disclose to an accused person anything that is in their possession that is relevant and non-privileged. This is a fundamental principle relating to the accused’s person’s ability to make full answer and defence to any charge against them. An accused person need not make a court application to receive this information.

If the record or information is not in the possession of the Crown then the accused person must make a court application to ask that those records be produced and they must convince a judge that they are likely relevant to an issue at trial. In the Gubbins case the Crown prosecutors argued that the maintenance records for the breathalyzer test machines were not in their possession (because they were held by the police and a third party) and further that they were not likely relevant to an issue at trial.

In Gubbins, 8 of the 9 Supreme Court judges agreed that these maintenance records were not in the possession of the Crown and therefore an accused person needs to bring an application to the court to have them disclosed. They further found that in the context of that case they were not likely relevant to an issue at trial.

What this means practically for accused persons in Canada is that now they can be pulled over by the police for no reason, required under threat of criminal sanction to provide a breath sample  – even though the officer has no reason to suspect that they have been drinking alcohol –  and if they fail the road-side test and are taken to the station they will have to go through a lengthy complicated court application to have a chance to have the maintenance records of the breathalyzer machine disclosed to them. On top of that, at that hearing they will be facing a Supreme Court of Canada decision that has found that these records are not generally relevant.

If you’re starting to feel like the deck is getting stacked against the accused in this situation, so do we.

Until this new law is challenged and tested by the courts it will be a minefield for accused persons.

At Mines & Co we have experience in bringing applications for third party disclosure. We have had cases where we have successfully argued for this type of disclosure and when it was produced it resulted in the charges being dropped against our clients.

Defending Sex Assault Cases in 2108: A Very Difficult Task

To say that defending sexual assault cases in the current social and political climate is tricky would be an understatement.

In Canada, the current movement of support for sexual assault and abuse victims and complainants really started with the Jian Ghomeshi trial and has continued through to now with the Me Too movement. The groundswell of support and media attention it has garnered is impressive. It is important that the public be aware of the hidden issues relating to sexual violence. It is equally important that victims feel that they are able to come forward. On the other side of this movement though there have been problematic outcomes from anonymous on-line complaints and trials by media, with nothing even close to a formal allegation being put forward. In previous blog writings I have written about these problems in detail, so for now I will leave it at that.

There is a line of writing and thought that promotes the idea that sexual assault complainants do not fabricate stories of this nature. In the wake of the current public sentiment towards sexual violence it seems like the general public is more and more coming to a place where they share that same view. Anyone posting an allegation online is seen as inherently trustworthy and immediately the person they are accusing has lost all credibility, and sometimes their career. There is no room for doubt. No room for assessing an explanation. No taste for finding the objective truth. Just judgment.

The problem is, people do fabricate allegations of this nature. Recently there was a story in the news where a local woman complained of a sexual attack, and after much investigation by the police, admitted that the report was false.

http://www.cbc.ca/news/canada/british-columbia/delta-sex-assault-false-report-1.4703511 

I cannot pretend to know what would motivate a person to fabricate an allegation of this nature, and I think the heart of the problem I’m concerned about is that the vast majority of people can’t.

It is an inevitable natural progression for the sentiment that started online and in the media to find its way into the courtroom. Members of a potential jury have heard all the same stories – and support for those who tell them – that we all have. Lawyers, police officers and all participants in the justice system have as well.

There is a real danger of a reversal of the burden of proof in the courtroom in sexual allegations and an associated increased risk in wrongful convictions.

As defence lawyers, we need to be politically correct, sensitive and work within the limitations placed on us by our code of ethics and the courts, but at the same time vigorously pursue justice for our clients and ensure that there doesn’t become a different standard in the criminal law for those accused of sexual crimes. All people, accused of all crimes, must equally have the full protection of the assumption of innocence. When our system bends toward anything else it is a problem for Canadian society at large.

27 years ago, in a 1991 case of the B.C. Court of Appeal, Mr. Justice Wood recognized this problem and warned against it in his decision in a case called R v. VK (1991 CanLII 5761 (BCCA)) at paragraph 55 https://www.canlii.org/en/bc/bcca/doc/1991/1991canlii5761/1991canlii5761.html :

I have already alluded to the danger, in a case where the evidence consists primarily of the allegations of a complainant and the denial of the accused, that the trier of fact will see the issue as one of deciding whom to believe. Earlier in the judgment I noted the gender-related stereotypical thinking that led to assumptions about the credibility of complainants in sexual cases which we have at long last discarded as totally inappropriate. It is important to ensure that they are not replaced by an equally pernicious set of assumptions about the believability of complainants which would have the effect of shifting the burden of proof to those accused of such crimes. 

It was an important principle in 1991 and it is an even more pressing issue and concern today. As a society we must remain objective and yet compassionate at the same time. It is tricky, to say the least. 

Marijuana – Actually not a “grey” area of Canadian criminal law.

Ever since the federal Liberal government announced that it would table legislation legalizing the sale and use of cannabis marijuana for recreational purposes we’ve taken many calls and met with many people who talk about the legal “grey area” that they believe exists. To be clear, there is no grey area. Marijuana is illegal in Canada.

Granted, it is an easy area of law to be confused about, especially considering the developments in the Vancouver area. So, we will attempt to clear it up for you.

Medical marijuana dispensaries have been operating in Vancouver in one form or another for about 20 years. Starting with the Compassion Club on Hastings Street in the 90s, they have proliferated to the point where there are now dozens of dispensaries operating all over the city. Some no longer even require a prescription to make a purchase.

In 2016 the City of Vancouver decided that due to the prevalence of unlicensed businesses operating as marijuana dispensaries the city would begin to regulate and issue business licenses to marijuana dispensaries. In May of 2016, the City of Vancouver began issuing business licenses to approved dispensaries and attempted to close down unlicensed dispensaries.

In January of 2016 the Police Complaints Commissioner requested that the Vancouver Police Department (VPD) make an official policy regarding the enforcement of marijuana dispensaries. Although this was brought before the Vancouver Police Board, we see no information to confirm that an official VPD policy exists. Anecdotally, it seems the VPD has a general policy of allowing licensed dispensaries to operate, but they do raid dispensaries from time to time. In June of 2017 the VPD – working at the request of the Toronto police and in conjunction with their investigation – raided several high-profile dispensaries in Vancouver. The result was numerous criminal charges against workers in those stores. The VPD was able to make those raids because marijuana remains illegal. 

The federal Liberal government tabled Bill C45 “The Cannabis Act” earlier this year. If it is passed it will allow for the legal sale and use of marijuana for recreational purposes. This Bill has not been passed and has no authority as of yet. The Bill needs to be passed by both the House and the Senate. Passing it in the House shouldn’t be a problem as the Liberals hold a majority of seats. Bill C45 is currently being reviewed by the Senate and there seems to be no shortage of senators who take issue with the bill itself or of the government’s timeline to implement it. The federal Liberal government has set a timeline of July 2018 to pass the Bill into law. There is no guarantee the Bill will pass, much less that there will be recreational marijuana being sold legally in Canada anywhere close to that timeframe.

Until such time – if it ever does come – that the Bill is passed and put into force, marijuana remains illegal in Canada – everywhere.

We currently represent clients who face criminal charges of producing marijuana; possessing marijuana for the purposes of trafficking; and simple possession of marijuana If you, or someone you know, are facing such charges, we’d be happy to discuss your options and what we can do to help.  

The Problems with Vigilantism: No Rules. No Accountability. No Oversight.

Recently, there have been numerous community-based groups of volunteers who have decided to take law enforcement into their own hands. There are several different iterations, but most of them include the word “creep” in their title. Generally, what these groups who they say, want to meet with underage girls for sexual activity. Then they set up a meeting with that person and confront them at the meeting with their video camera and allegations, then post the video (and often the person’s name and other personal information) to website in an effort to expose them as a “creep”.  In some instances investigation.

In the current social climate it seems as though the general public is supportive of these groups, and it is not difficult to understand why. The public has the impression that the police are not able or willing to do enough to stop the bad guys who are hurting children, so they need help. Everyone is against the exploitation and abuse of children through the use of the internet, including myself. I am a parent. So, in theory, these groups are a welcome and great addition to the effort to protect children from victimization by predators. The problem is, in practice, some of what these groups do and are capable of.

The police are empowered by the state, and by the people we elect through our democratic process, to enforce the laws and protect the people of this country. It cannot be understated how great of a responsibility that is and how immense the power is that goes along with it. The police have hierarchies, structures, checks and balances, management, laws, regulations, policies, complaint commissions and the public to hold them accountable. What they do is relatively transparent and accessible, and ultimately they are held to account by the gold standard of the Canadian Charter of Rights and Freedoms and the courts of Canada. Even with all of this in place, I don’t think it is any secret that the police sometimes get it wrong, terribly wrong, in their investigations. There are many well documented cases ofwrongful convictions and police misconduct in Canada. But, at the end of the day, when the police overstep their bounds, their authority, or just get things wrong in an investigation, there is a process in place to deal with those issues. When vigilante groups, however well meaning, attempt to exercise the power, authorities and duties of the police, they have no rules, no accountability and no oversight. They answer to no one. What then can be done when they step out of bounds or get it wrong? The simple answer is, nothing.

It is difficult to even attempt to call out a vigilante group for going too far. Who is it that sets the limits of what they can do? No one.  There is no limitation on entrapment. There is no accountability that they are accurate in their reporting of what actually happened, or even that they identify the correct person. There is no guideline for conduct. There is nothing that restrains them and little-to-nothing that can be done to defend yourself if you end up being caught up in one of their set ups, even if you are there innocently.

It is easy enough to think that if someone chats online with someone underage, there cannot be an innocent explanation, but recent news headlines regarding these videos seem to indicate otherwise. These organizations have confronted, and attempted to out as pedophiles, a person with a mental disability and a man who had agreed to meet up
with a teen girl to help her with her art work. In another instance, one of these organizations falsely identified a person on Facebook as being the subject of their setup. That person received death threats and fallout at his employment. The biggest media attention came when one of these organizations put the wrong name on their website and falsely accused the wrong person, who was an RMPC officer, of being the subject of one of their setups. One doesn’t have to look far to see examples of how things can and are going terribly wrong with these groups.

In another case, a complaint has been lodged with the Office of the Information and Privacy Commissioner regarding one of these groups and an investigation is underway. Although the Privacy Commissioner has not released the nature of the investigation there is speculation that it is in regards to one of these groups releasing personal information online and allegedly not conforming with laws that may govern an organization of their nature.

In a free and democratic society we all enjoy rights and we take on certain responsibilities. One of those responsibilities is to allow the state to be the agent that enforces the laws. We empower them to do so and put procedures in place to keep them accountable. If the public disagrees with how the state is handling that enforcement or believes that not enough is being done, then in my opinion, the appropriate thing to do is to direct your time, energy, passion and resources into demanding reform and change of the government, not
taking the law into your own hands.

A Practical Guide to the Aftermath of an Arrest

When the police believe that there are reasonable and probable grounds  that a person has committed a crime, they will usually make an arrest. After an arrest, the police have the discretion to take one of two courses of action:

 1. They may decide to release the accused person without a bail hearing. In this situation an accused person is released from police custody after they sign documents promising to come to court and often to come back to the police station to be fingerprinted (if they were not fingerprinted at the time of their arrest). 

 2. The police may decide to not release the accused person from their custody, but will detain them for the purposes of having a bail hearing.  That bail hearing  will then be held before a judge or a justice, depending on the situation.

Either way, the majority of people accused of criminal acts end up being on some form of release in the community (bail) after the allegation has been dealt with by the police. The accused person will be released on their promise to attend court at a later time, known as the first appearance.

Between the accused person’s release from custody and the first appearance the police are required to finish their investigation and forward their report and investigation materials to the Crown prosecutor’s office. A prosecutor will review the police materials and consider whether the case meets their charge approval standard. If the prosecutor believes the case meets that standard, they will approve prosecution of the case and it will be added to the court list for the first appearance date. The prosecutor may also decide not to approve a charge or to return the file to the police for further investigation.

Many people who are released from police custody mistakenly believe that the first appearance court date will be their trial. That is not the case. Generally, the first appearance is a quick appearance in front of a justice of the peace. The prosecutor will have the police report and evidence package ready to be disclosed to the accused person or their counsel. Then, the matter may be adjourned some days or weeks for the accused person to hire a lawyer, speak to Crown counsel, consider the police materials and make a decision as to what they want to do with the case.

An accused person can hire a lawyer to go to their first appearance for them or they can go on their own, pick up the police disclosure materials and then take them to a lawyer for advice. 

If, at the end of these adjournments, the Crown counsel prosecutor is still proceeding with the charge, then an accused person must make a decision as to whether they want to have a trial or plead guilty. 

Although not a lot happens in the courtroom during these initial appearances, often a lot goes on behind the scenes. Depending on the circumstances, a lawyer may be able to negotiate with the prosecutor to have the matter referred to a diversion program, provide further information that persuades a prosecutor not to proceed with the charge, negotiate a plea to a lesser charge, negotiate a change to bail conditions and/or request further disclosure. Unfortunately these outcomes may be very difficult, if not impossible to achieve without the help of a lawyer, again depending on the circumstances.

It is certainly less stressful to be able to have the assistance of your own lawyer to help you through this difficult process. If you are not able to afford your own lawyer, you can seek the assistance of a duty counsel lawyer. Duty counsel lawyers are available to provide free preliminary advice on criminal matters at the courthouse on days where these initial appearances take place. It is always better to have at least some advice, rather than trying to navigate this completely on your own.

At Mines and Company we deal with these courtrooms, prosecutors and situations every day. If you or someone you love is facing a criminal charge it would be our pleasure to sit down with you and let you know what we can do to help out. 

Ryan Johnson weighs in on Court Delays

Court delays drop significantly but province still dealing with judge shortages

Vancouver, BC, Canada / News Talk 980 CKNW | Vancouver’s News. Vancouver’s Talk

Emily Lazatin

Posted: October 20, 2016 10:47am

Minister Justice Suzanne Anton announced yesterday the number of cases dismissed because of backlog have gone from 120 in 2012 to 13 this year in B.C.

But the province is still dealing with a shortage of judges.

Local Criminal lawyer Ryan Johnson says there’s no doubt backlog is being pushed through much faster, but there’s still issues, especially at the provincial level.

“What’s happening in the court system right now is they have an assignment court for trial, and routinely, even though your matter has been set down for trial for 8, 10 or 12 months, and there is supposed to be a judge assigned to your trial, they are only giving from the assignment court only two judges if there is four trials, and only two of them will go down, because they don’t have enough judges to actually assign.”

He says the issue is found mainly on the Main Street court house in Vancouver.

“It contributes to cases that go into delay for second trial dates, it causes significant hardship to clients because they’ve been waiting and counting on a certain court date to have resolution of the matter at time and we get there and there isn’t a judge available.”

He says there’s still too many empty seats on a provincial level, but he adds getting a second court date is quicker than it used to be.

In 2012, a report penned by Vancouver lawyer Geoffrey Cowper called for a major overhaul in the criminal justice system.

Defending Possession of Cocaine charges

As we move toward whatever model of marijuana legalization that the Trudeau government has promised to implement in the spring of 2017, we see a proliferation of medical cannabis retailers in BC, especially throughout Vancouver and the rest of the Lower Mainland. It’s obvious to most people, whether out for a walk near a park, beach or “hipster” shopping street, that more and more British Columbians are indulging in smoking pot. Often the pungent aroma is inescapable; likewise, cannabis dispenaries, once confined to stealthy, low profile operations now boldly advertise thier wares, hoping to attreact an ever growing clientel. Since this summer in Vancouver some pot dispesaries no longer even requiring a doctor’s medical note to dispense marijuana: http://vancouversun.com/news/politics/no-doctors-note-for-pot-no-problem-say-vancouver-dispensaries Since June of 2015, Vancouver city council instituted a system of issuing City business licences to pot dispenaries. During this period where pot is still prohibited under the Criminal Code, but clearly is tolerated by most Canadians, it certainly seems to criminal lawyers that police and prosecutors are loathe to prosecute people for simple possession of marijuana. At Mines and Company, it has, in fact, been years since we have had to represent a client charged with simple possession of pot.

While clearly our community now takes a very liberal view with respect to marijuana possession, the same cannot be said for possession of other drugs such as cocaine. In recent months, we have actually seen a huge increase in the number of cocaine possession charges. One particular hot spot for enforcement that we’ve seen a big focus on is the Resort Municipality of Whistler. As seen by this 2002 article, cocaine use has been an issue in Whistler for quite some time:http://www.piquenewsmagazine.com/whistler/health-officers-still-trying-to-define-whistlers-cocaine-problem/Content?oid=2141925  Whether because of a perception relaxed enforcement of marijuana possession laws or other factors, our practice has seen a marked increase in the number of Whistler clients coming to us with cocaine possession charges. These cases often involve people leaving Whistler bars, pubs or restaurants to go to a parking lot or some other relatively open place an openly consume the drug. Police are so familiar with this happening that they simply put a couple of undercover officers on foot patrol in and around these open places to detain and arrest the users.

For the most part, those charges with simple possession of cocaine are young people, often seasonal resort workers, who have no criminal record. They are hugely surprised to see that the RCMP and the Whistler community do not see cocaine in the same light as alcohol or enen cannabis. Police recommend charges and Crown Counsel routinely prosecutes cocaine charges. Our challenge is to help those charged try to avoid criminal records that would severely impact their lives with respect to opportunities for travel and employment. We have, in fact, been quite successful in achievinf absolute discharges for most of our clients charged with simple possession of cocaine: https://mineslaw.com/recent-successes Should you find yourself charged, give us a call.

New Federal Court Ruling on Medicinal Marijuana Changes Little for Now, Much in the Coming Months

On February 24, 2016 a Federal Court judge in Vancouver struck down the federal government’s regulations stopping licensed personal growers of medical marijuana from growing their medicine, saying they violate the patient’s Charter rights. Before the federal government brought in the new scheme, which mandated that medical marijuana only be grown by large government-regulated marijuana growers and distributed in a manner similar to traditional medicines, small licensed grow operations were allowed to grow on behalf of patients or for their own personal medical needs. Opponents of the new system argued that it caused an exorbitant increase in the cost of medical marijuana, causing patients to go back to the black market or go back to more harmful traditional medications.

At the beginning of the litigation that came to an end with this Federal Court decision, the Court granted an injunction that allowed the pre-existing small personal medical marijuana growers from the previous system to keep growing medical marijuana. Under this new Federal Court decision, those pre-existing growers can continue business as usual, but there will be no new personal licenses or growers any time soon. The decision allowed a 6 month window for the federal government to make new regulations to ensure that personal medical marijuana growing is done safely. Until those new regulations are implemented, or that 6 months expires, there will be no new legal personal medical marijuana growers. So, for the time being, everything stays the same.

The real change comes in the following months. This decision will likely spell disaster for the large scale medical marijuana producers that invested large amounts of capital to get their facilities up and running under the new system. If medical marijuana is available legally to patients from private growers or from their own plants, at a fraction of the cost of buying from the government, the large commercial growers are likely to go belly-up. That is unless the Trudeau-led Liberal government can move fast enough on legalizing recreational pot for some of those facilities to apply to be able to transfer over to grow under that regime. In my opinion, the Federal Court decision actually helps to take some of the speed bumps out of the way of the legalization of recreational marijuana in Canada. Under the medical marijuana system, where patients were getting pot through the government from large commercial growers, the price of medical marijuana was well above the black market price for marijuana in most of the country. That presented a problem for recreational legalization. The legal recreational marijuana prices would have to be competitive with black market prices or the government would not get enough tax benefit from legalization for it to be worthwhile. If medical marijuana was more expensive than recreational marijuana, patients would buy recreational marijuana. Bottom line, legal marijuana has to be price competitive with the black market to work. When the government was selling medical marijuana well above black market value, it created a big problem for legalization of recreational marijuana. Now that medical marijuana will be price competitive going forward, through small and personal growers, the government has no issue with the pricing of legal recreational marijuana. The large commercial growers have a big problem with a finding a market for their product. They, and their shareholders and investors, better hope they can transition into growing legal recreational marijuana, and quickly.