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.   

Our Media Comments on the Jian Ghomeshi Trial…

The Rise and Fall of the “Ghomeshi Effect”

BY DENISE RYAN AND MATTHEW ROBINSON, VANCOUVER SUN FEBRUARY 13, 2016

For just a moment it looked like change was in the air.

In 2014, when former broadcaster Jian Ghomeshi first fell so spectacularly from grace — a sudden and very public dismissal from CBC, and a stunning number of women who levelled accusations of sexual assault and gross behaviour — the backlash against the women was swift. Then Twitter began to rumble.

The hashtags #BeenRapedNeverReported and #IbelieveLucy (actress Lucy DeCoutere outed herself as a Ghomeshi complainant) emerged as countless people shared powerful stories of their own unreported sexual assaults. The outpouring of support was dubbed “the Ghomeshi effect.”

The hashtags seemed like something more than social media, something brave and liberating and necessary. Women were coming forward, unafraid.

Cut to 2016: Ghomeshi is in court, has pleaded not guilty to four counts of sexual assault and one count of overcoming resistance by choking, and his very capable defence attorney Marie Henein turns the tables.

Cut to questions about hair extensions, bikini shots and mash notes. Cut to “I love your hands.” Cut to a defence strategy that focused on the behaviour of the complainants with such laser intensity, that it looks like it will flip the script on the meaning of “the Ghomeshi effect.”

The groundswell of belief and trust, the sense of safety that #BeenRapedNeverReported represented, is gone.

Hilla Kerner, a spokeswoman for Vancouver Rape Relief and Women’s Shelter, said that the Ghomeshi defence strategy will have a devastating effect on victims.

“We hear from women we work with whose cases will be in court sometime in the near future that they are dreading this process.”

Kerner said just yesterday one woman who will be testifying in court later this year, expressed “fear and dread.”

“It will deter the few women who do go forward and put their faith in the criminal justice system from using the system to hold men accountable,” she said.

Adversarial system

The number of reported sexual assaults is low. According to Statistics Canada, for every 1,000 sexual assaults only 33 are reported, 12 result in charges, six go to trial and three lead to conviction.

“In Canada we have an adversarial system premised on the idea that the best way to test whether evidence is true or not is through the cross-examination of witnesses. Witnesses will give oral testimony under oath and the only way to really test its credibility is to cross-examine, and to try to probe for inconsistencies, confusion, lies, whatever it might be,” said Janine Benedet, professor of law at UBC and co-director of the Centre for Feminist Legal Studies.

But what happens in court is only one small part of a wider problem around how sexual assault cases are handled long before the possibility of trial.

“For me, the most serious problem is even getting women through the doors of a courtroom to have their case heard,” said Benedet. Many decisions happen behind the scenes.

“There is a real attrition. Women don’t report. When they do report, another batch is screened out by the police as unfounded, the Crown screens out another batch as not likely to result in a conviction. Then we get to court and more of them are screened out through this process of minute cross-examination of the complainant’s history and the unwillingness to convict where we don’t have corroborative evidence (such as witnesses or DNA).”

Stereotypes persist

Even when there is DNA, the long history of discrimination, social myths and stereotypes about women continues to influence perceptions of credibility and judicial outcomes.

“There is a suspicion of women who report sexual assault in a way that there isn’t for women who report other kinds of crimes,” said Benedet.

Although discriminatory assumptions about women — such as their sexual history, failure to scream or cry out, or implied consent through failure to fight back — have all been eliminated from rules of evidence through law reform, there is a persistent and ugly hangover.

In 2014 Canadian Federal Court judge Robin Camp made international headlines when he asked a sexual assault complainant why she “didn’t just keep her knees together” to prevent penetration, and suggested that “sex and pain sometimes go together — that’s not necessarily a bad thing,”

Michael Mines, a Vancouver-based criminal defence lawyer who has represented clients in sexual assault cases said he hopes the Ghomeshi case will not dissuade victims from using the criminal justice system.

“If it has a chilling effect, that’s really unfortunate,” he said. “I hope it doesn’t.”

From the perspective of a defence lawyer, Mines had a different take on the decisions by Marie Henein, Ghomeshi’s lawyer, to closely examine her witnesses and to keep her client off the stand.

“She owes a duty to defend her client. It seems to me, from what I understand, that’s what she did. Vigorous cross-examination is part of what happens.”

The criminal trial process is structured on a presumption of innocence, and conviction is based on a requirement of proof beyond a reasonable doubt.

Every ‘whack’ felt

Although it is defence counsel’s duty to defend their client, Benedet said she was surprised that Henein was able to “whack” the witnesses by dragging out undisclosed information. (“Whacking” is legal slang for a method of attacking a sexual assault complainant’s story in order to undermine their credibility while they are testifying.)

It’s not unusual for women who have been sexually assaulted by an acquaintance or a date to have some continuing contact, even social, friendly or affectionate contact, with the person who committed the offence, said Benedet.

But, because the Crown didn’t anticipate or bring that information out first, the witnesses were vulnerable to Henein’s cross-examination, she said.

Although the verdict in the Ghomeshi case won’t be in until March 24, publicity has ensured that every “whack” delivered has been felt.

“I worry that the attention on Ghomeshi will be very damaging because in many ways it isn’t a very typical sexual assault case: his profile, his pre-emptive Facebook defence, the amount of media and social media discussion prior to the case,” said Benedet.

The vast majority of sexual assaults that take place involve women who are poor, Aboriginal or very young, and, with or without a hashtag, most of their stories will never be heard in a court of law.

dryan@postmedia.com

mrobinson@postmedia.com

© Copyright (c) The Vancouver Sun

Source Article

Understanding Bail Hearings

Often, the first contact we have with a new client is a call from that client, or his or her relative or friend, stating that the person is in police custody, having been arrested and charged with an  offence. Two issues are certain to arise. First, advising the client that they have the right to remain silent and that anything they say will likely end up being used against them at trial. The second is a discussion about what will happen in the immediate aftermath of the arrest. Will the police be releasing them without charge? Will they release the accused on a promise to appear in court on a future date? Or will the police hold the accused over until they can be brought before a judge for a “show cause” hearing?

The law of bail in Canada, formally known as ” judicial interim release,” is governed by section 515 of the Criminal Code. This section provides that the Court shall release the accused without conditions unless the prosecutor shows that the detention of the accused in custody is justified or that the accused only be released on appropriate conditions to ensure his or her good behaviour in the community and to ensure his future attendance in court. Typical bail conditions include that the accused report to a bail supervisor; that they remain within the province or city in which the court is located; that they refrain from communicating directly or indirectly with the complainant or witnesses; that they not attend at certain addresses; that they not posses any weapons or firearms etcetera. So, for most offences and  in most situations, it is the  Crown counsel that has the burden of proving that the accused’s detention is justified. There is usually a presumption (that is linked to the overall presumption of innocence throughout the trial process) that the accused is entitled to be released. It is only where the Crown can satisfy the court under s. 510 (10) that there are Primary, Secondary, or Tertiary grounds to detain the accused that the court will make a detention order, causing the accused to be held in custody until the completion of trial.

Primary ground concerns involve the likelihood of the accused coming back to court out of custody, The Crown’s concerns are typically linked to an accused’s history of failing to attend court or breaching court orders. Other considerations include the accused’s housing situation and family/ community support to aid in getting him/her to court. Secondary ground concerns involve the likelihood that, if released, the accused will commit further offences. The Crown is permitted to allege prior convictions at a show cause hearing. Clearly, a recent and related record for offences of the type the accused is presently charged with will be referred to by Crown in submissions for detention. Tertiary grounds involve the concept of the public having confidence in the administration of justice. Tertiary ground bail cases typically involve the most serious crimes such as murder, aggravated sex assault and the like. In these cases, the court must consider the serious circumstances and strength of the Crown’s case, whether a firearm was used and the potential for a lengthy prison term upon conviction.

In the more serious cases, accused persons are often released upon depositing cash with the court or, alternatively, upon a surety coming forward to, essentially, act as a guarantor of the accused’s good behavior in the community. The surety might be the person that posts the cash or a charge against his or her real estate holdings in some cases. Should the accused fail to attend court, the prosecutor will institute “estreatment” proceedings where they will apply to the court for the deposited cash or property to be forfeited to the Crown. In order to qualify as a surety, the person coming forward will have to satisfy the court they are a person of good character that can be trusted to monitor the accused’s good behaviour in the community.

As criminal defence lawyers, our role is to defend our client’s right to be presumed innocent. We firmly believe that innocent people should not be held in custody. Should you, a relative, or friend be arrested, our best advice is to consult with experienced counsel so as to develop and advance an appropriate release plan. 

Holiday Stress and Intoxicants can lead to Charges

The Christmas/New Years Season should be a time of celebration. Unfortunately, pressures and expectations from family and friends can lead to stress which, if not handled effectively, can lead to poor decision making. The addition of alcohol and other intoxicating substances can sometimes lead to risk taking and sometimes violent acts. Certainly, during the holiday season we see our fair share of domestic assault, impaired driving and shoplifting cases. 

It is important to understand that police in British Columbia take a “zero tolerance” approach to domestic assault cases. Those arrested on spousal charges, including relationships where the parties are unmarried and not living together, can expect to spend the night in custody. Even people with no criminal record will be held until the alleged victim can be notified, and reasonable conditions of release can be determined. The accused person is only  released on the order of a Provincial court Judge or a Judicial Justice of the Peace. Once released, the accused will have to return to Court, usually in a week or two, and will have to abide by various “no contact” and “no go” conditions until the case is resolved. We strive to help people arrested on domestic assault charges gain their release on the most liberal release conditions possible. Often, we are able to persuade Crown to agree to “loosen” a strict  no contact order over time. For example, we have successfully argued that it is appropriate for our client to have contact by phone or text, in order to arrange access to children or to deal with pre-existing financial issues.

Police in British Columbia, likewise, have a very tough approach to impaired driving. Police road checks are certainly out in full force during the holidays. The Immediate Roadside Prohibition (IRP) regime allows police to administer roadside screening breath tests to suspected impaired drivers and to immediately prohibit them from driving for 90 days upon a “fail” result. Additional penalties include a 30 day immediate vehicle impoundment, fines, and mandatory enrollment in the Responsible Drivers Program before reinstatement of the driver’s license is permitted. While IRP law is under the provincial Motor Vehicle Act, police still have the discretion to charge impaired drivers under the Criminal Code. Generally, impaired drivers can expect true criminal charges if they have an alcohol related driving history, there was an accident, a child was present in the car or the driving behavior was particularly bad or the driver was committing some other criminal act. One particularly serios consequence of an impaired driving conviction is that the conviction will render the driver in breach of his or her insurance policy. This can have extremely serious consequences.

We tend to see quite a number of shoplifting charges during the Christmas season. More and more retailers are taking a zero tolerance approach to theft. Most first time shoplifters are released by police on a Promise to Appear in Court and an Undertaking to report to the police detachment on a later date for the purpose of providing fingerprints. Many of our clients have benefited from our knowledge of the law and our experience in persuading Crown Counsel to not prosecute first time shoplifters. In this day of easy internet  access, once a person is charged, employers, family, friends, and the US Border Authority can see that a person has been charged. Even a minor shoplifting charge can prevent entry to the United States and can prevent people from advancing in their workplace.

If you or someone you know is facing assault, impaired driving or theft charges, do not hesitate to contact us.

Legal Recreational Pot? Addressing the details….

Justin Trudeau’s Liberal government won a majority in the recent federal election. Part of their platform that many Canadians paid particular attention to was their promise to legalize, regulate and tax recreational marijuana.

I walked by a bong, pipe and marijuana accessory store yesterday. They had a placard out on the sidewalk with large chalk letters on it stating “IT’S LEGAL NOW!!” Although that may be the belief of some optimistic, and/or perhaps uninformed Canadians, it is not the legal reality. There is a long complicated road ahead of the government elect, before Canadians will be legally smoking, vaping, dabbing or eating marijuana legally.

Legalizing marijuana is more complicated than just a change to the Criminal Code sections that currently make recreational use of marijuana a criminal offence in this country. There is a litany of other issues that must be simultaneously addressed in any potential change to the legislation scheme.  Just some of these issues include:

– How to effectively address marijuana impaired driving;

– How to keep the legal taxed marijuana competitive with the established illegal marijuana market;

– How to organize a legal recreational marijuana marketplace that will not conflict with the federal medical marijuana scheme that is in the process of being implemented; and  

– How to regulate the production, distribution and sale of legal marijuana.

With the recent legalization of recreational marijuana in some US states, including Washington and Colorado, there are other jurisdictions that the Liberal government can look to and hopefully learn what has worked and avoid some of the missteps that have made throughout the process.

Fortunately for Canada we won’t have the same banking issues that the US states have had to deal with. In the US, banks are regulated federally. While marijuana is still illegal at the federal level, states have passed laws to make marijuana legal.  The federally regulated  banks view the marijuana revenues as essentially coming from illegal activity. This has created a major problem for those involved in the U.S. marijuana industry.

In Canada we won’t have the same issue with banking, although, we will have problems. When they lost the majority of seats in the election, the Conservative federal government was in the process of implementing a new medical marijuana scheme. Previously, individually licensed local growers were able to provide marijuana to patients at an affordable rate that was competitive with the black market price. Under the new scheme, patients would only technically be able to buy their marijuana through a system that would provide product from large, centrally owned and heavily regulated growers, at set prices that are much higher than the black market prices in most areas of the country.

In order for a taxed and legal recreational marijuana market to be successful, its’ prices, including taxes, must be competitive with the established black market or it will fail. If the taxed, legal marijuana is available at this price point, it would make the medical marijuana redundant, because patients would abandon the medical system and buy the recreational marijuana because of the reduced price. This is an issue that must be addressed, by scrapping the medical marijuana scheme, allowing it to go back to the old system of independent growers or drastically reducing the price for patients under the new scheme.   

If the government is to make recreational marijuana available they also have an obligation to put in place, and effectively enforce, impaired driving laws related to marijuana. There are many issues that other jurisdictions have faced on this issue. Impairment can be difficult to measure and even more difficult to detect. Currently, the only reliable way to measure a driver’s THC (marijuana’s intoxicating substance) levels is by a blood test. Requiring blood tests from drivers who are simply suspected of marijuana impaired drivers is a landmine of a criminal legal issue.

For more information see this article:

http://www.cbc.ca/news/canada/british-columbia/washington-pot-law-measures-nanograms-to-catch-impaired-drivers-1.3281600

Where and how to produce and sell legal recreational marijuana, is also an issue that requires substantial consideration and planning. It is possible that the government may just confer contracts to the growers who are currently growing for medical marijuana and allow provincially regulated liquor stores to begin to sell the marijuana they grow. This seemingly simple solution would be strongly opposed by many groups, all looking to profit from getting their own piece of the recreational marijuana market. Regardless of how they work it out, the government will need a system that will make as sure as possible that legal marijuana is not available to minors, is available conveniently for adults and is still at a price point competitive to the black market. If the US can be taken as an example, it is likely that even once the system is arranged and legislated it will take in the neighbourhood of 1 to 2 years to get it up and running, and once it is up and running another couple years of growing pains is highly likely. Of course, these timeframes are all dependent on how hungry the legislators get while doing field research.

Regardless of what the guy at your local head shop may tell you, for now, marijuana for recreational use remains illegal in Canada, although enforced at drastically levels depending on the jurisdiction. We watch with great interest to see if legal recreational pot will become a Canadian reality.

Peace Bonds: Should Information be Accessible on the CSO Website?

As many people are aware, British Columbia court records are available for free public viewing on the Court Services Online (CSO) website: https://justice.gov.bc.ca/cso/esearch/criminal/partySearch.do

Surprising to some, the CSO website contains data entries for all matters before the courts: not just criminal convictions, but also outstanding charges for which accused persons, who are presumed innocent, have not yet had their trials. Perhaps most surprising is that until June of this year, CSO made available for free public viewing even matters where accused persons had been found not guilty and acquitted. The issue here is to balance people’s privacy interest with the “open courts” concept which, essentially, allows for the community at large to be able to see what goes on in the province’s court rooms.

Reconsidering its longstanding policy to publish most court information on CSO, the Office of the Chief Judge of the Provincial Court, decided only recently that it was no longer in the interest of justice to publish information relating to acquittals and dismissals. The policy was changed to reflect the notion that many people consider criminal charges that result in non-convictions to be stigmatizing to the people that had been charged. Over the years, our office has had to deal with several former accused people who, justifiably, were upset that even though they were found not guilty at trial,  their record of non-conviction continued haunt them on the internet. We are certainly grateful that the Office of the Chief Judge seems to have taken our, and our clients’, view into account in changing its policy.

Our office just received an invitation to make submissions on the policy to continue or discontinue listing Peace Bond cases on CSO.  We responded by submitting that Peace Bond information ought not be available on CSO once the term of the Peace Bond has expired.

The Office of the Chief Judge clearly has recognized that the right to privacy outweighs the “open courts” concept with regard to discharges, stays, withdrawals and most recently acquittals and dismissals. That office acknowledges that individuals can be negatively affected by the stigma that can attach to even those criminal cases that result in non-convictions.

Peace Bonds, of course, are not a criminal convictions. No finding of criminal conduct has occurred, although cause for entering into the Peace Bond was established. This cause amounts to the applicant reasonably having fear for his or her safety based on the respondents’ non-criminal actions.

We believe that there is indeed some public interest in publishing the existence of a Peace Bond during its term. The essence of a Peace Bond is that, based on a complainant’s reasonable apprehension of fear, the Court places the respondent on conditions (usually) in the form of a restraining order for the benefit of the applicant’s safety. In our view, however, one must remember that the respondent is not an “accused” and there is no guiding of guilt. In this sense, Peace Bonds are on the same footing as charges that have resulted in a discharge, stay, withdrawal, acquittal or dismissal. 

Peace Bonds, even after they have expired on their terms, currently remain viewable on CSO. Because they are not “convictions” for which one can apply for a record suspension after the passage of a waiting period, Peace Bonds remain permanently viewable.

As one of the policy options suggested by the Chief Judge sets out, there could be a, perhaps, 5-year time limit for CSO access to Peace Bonds. While this arguably serves as an “automatic record suspension” for Peace Bonds, in our view, 5 years is too long for a non-criminal conviction.

Our view is that a fair balancing between an “open courts” policy and the right to privacy with respect to Peace Bonds is for the information to be viewable on CSO only while the Peace Bond is “alive”. Once its term has expired, CSO access ought to be terminated. 

The New Canadian Bill of Victim’s Rights

Today, the Canadian Victims Bill of Rights came into force. The Bill itself can be viewed at:

http://laws-lois.justice.gc.ca/eng/acts/C-23.7/page-1.html

The Act enacting the Bill, which also outlines the associated changes to the Criminal Code, can be viewed at:

http://www.parl.gc.ca/HousePublications/Publication.aspx?Language=E&Mode=1&DocId=7935412&File=4&Col=1

In this blog post I’ll be taking a look at some of the provisions of this new Bill and the associated changes to the Criminal Code. I’ll give some context here, as I think it is important to acknowledge the point of view from which I write. I am a criminal defence lawyer, who practices in Vancouver, B.C. As such, I have witnessed the introduction of many additions and changes to the Criminal Code over the last several years that I wholeheartedly believe to be detrimental to the justice system as a whole, and motivated by a desire to get votes. That being said, I will do my best in this article to put that aside, as well as any partisan political rhetoric, and do my best to be objective. I have previously worked for the B.C. Prosecution Service prosecuting crimes. I have also previously been a restorative justice practitioner for over 10 years, in which capacity I worked with many people harmed by crimes (victims) and advocated for a system that provided an alternative way for them to be involved in the outcomes of those crimes. I believe in the importance of the presumption of innocence and the protection of ALL Canadians by the Charter of Rights and Freedoms. I have been the victim of violent crime. I understand how being harmed by crime can cause a person to lose objectivity and be controlled by overwhelming and irrational emotions.

To start off with, I take issue with the title of the Bill. As someone with a background in criminology and restorative justice, I believe the labelling of someone as a victim is disempowering and can tend to set some people into a certain negative frame of mind when deciding how to react to a crime and how it has harmed them. Calling it the “Victims Bill of Rights”, in my opinion only helps to perpetuate this. That being said, “The Bill of Rights for Persons Harmed by Crimes” admittedly doesn’t have the same ring to it, and I suppose could possibly be confusing to the general population, so I’ll give this one a pass for the time being.

Overall, I think the heart of this Bill, is in the right place. For example, the Preamble and the initial sections on victims’ rights to information and protection within the system, generally, contain statements that everyone can get on board with. The problem is, most of them are already in practice, and the ones that aren’t seem to be written by someone with a rudimentary understanding of how the criminal justice system needs to operate on a day to day basis. For example, in section 13 it gives every victim “the right to request testimonial aids when appearing as a witness in proceedings relating to the offence.” The Criminal Code already had numerous detailed provisions relating to testimonial aids and limits their use to certain situations. Under new changes to the Code associated with this Bill, it seems as though every witness will now be able to apply for testimonial aids, including being able to give evidence from outside the courtroom. If every person who is a victim or witness to a minor crime makes an application to give their evidence from behind a screen with an assistance dog on their lap, the system will be totally bogged down. The previous system in the Criminal Code was set up to prevent that.

There are some anomalies created by the Bill as well. For instance section 4 reads:

Exception

4. An individual is not a victim in relation to an offence, or entitled to exercise a victim’s rights under this Act, if the individual is charged with the offence, found guilty of the offence or found not criminally responsible on account of mental disorder or unfit to stand trial in respect of the offence.

The purpose of this section is clear. They don’t want people who perpetrate crimes to use the Bill to say that they are also a victim (because the definition of victim in the Bill is very broad) and are able to exercise victims’ rights under the Bill. The issue becomes, what happens to the wrongfully accused? And despite what people may think, this happens more often than anyone would like to admit. Given this section, if a person’s spouse was murdered, and they were charged with the murder, and later the charges were stayed and someone else was convicted of the murder, this section would exclude the surviving spouse from claiming the rights of a victim under this Bill.   

Rewriting the Law on Restitution Orders

So far, the portion of this Bill that has sounded the most alarm amongst the criminal bar has been the provisions relating to restitution orders. Previously, restitution orders were made during a sentencing hearing to repay money directly owed to a victim of crime as set out in section 738. There is now a new provision (section 737.1) that acts as a sort or preamble to that section, it reads:Court to consider restitution order

737.1 (1) If an offender is convicted or is discharged under section 730 of an offence, the court that sentences or discharges the offender, in addition to any other measure imposed on the offender, shall consider making a restitution order under section 738 or 739.

Inquiry by court

(2) As soon as feasible after a finding of guilt and in any event before imposing the sentence, the court shall inquire of the prosecutor if reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages, the amount of which must be readily ascertainable.

Adjournment

(3) On application of the prosecutor or on its own motion, the court may adjourn the proceedings to permit the victims to indicate whether they are seeking restitution or to establish their losses and damages, if the court is satisfied that the adjournment would not interfere with the proper administration of justice.

Form

(4) Victims and other persons may indicate whether they are seeking restitution by completing Form 34.1 in Part XXVIII or a form approved for that purpose by the lieutenant governor in council of the province in which the court is exercising its jurisdiction or by using any other method approved by the court, and, if they are seeking restitution, shall establish their losses and damages, the amount of which must be readily ascertainable, in the same manner.

Reasons

(5) If a victim seeks restitution and the court does not make a restitution order, it shall include in the record a statement of the court’s reasons for not doing so.

(Emphasis is mine.)

The issue here is the inclusion in these sections of the word “damages”. Although the existing restitution section (s.738) makes reference to restitution for some specified things that may have fallen under the term damages, they were clearly defined. It seems that the introduction of this new section, with the general term of “damages” included, may open up the door for victims to circumvent the civil law process and attempt to claim damages in a criminal matter that were previously unavailable.

This problem is compounded by the new definition of “victim” which this Bill has put into the Criminal Code. The new definition of victim reads:

“victim” means a person against whom an offence has been committed, or is alleged to have been committed, who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss as the result of the commission or alleged commission of the offence and includes, for the purposes of sections 672.5, 722 and 745.63, a person who has suffered physical or emotional harm, property damage or economic loss as the result of the commission of an offence against any other person.

(Emphasis is mine.)

With the inclusion of the alleged victim of crime in the definition of victim, this seems to open up the door for people to claim damages for crimes, even if it is not proven beyond a reasonable doubt at trial that they were victimized. For instance, a person may be charged with assaulting 2 people, but only convicted of, or plead guilty to, assaulting one of those people. The other person still fits the definition of victim, as they are a person against whom an offence is alleged to have been committed. At sentence for that offence that person could potentially bring a claim for damages under a restitution order. Although, it is reasonable to believe that a judge would not allow for such a claim, it seems entirely possible to have one ordered.

There is also a new and expanded form for victim impact statements which are put before the court at sentencing. This form allows for victims to put forward more information than was previously permitted. In a sentencing hearing the prosecutor has the burden of proving all aggravating facts beyond a reasonable doubt. If a victim puts forward consequences of the crime in a victim impact statement, that were not proven at trial or admitted on sentence, then the prosecutor is put in a position where they would need to prove those facts beyond a reasonable doubt if they are to be taken into account by the judge. The Bill further puts in place a new section that seems to relate to this circumstance:

Consideration of statement

(8) In considering the statement, the court shall take into account the portions of the statement that it considers relevant to the determination referred to in subsection (1) and disregard any other portion.

Evidence concerning victim admissible

(9) Whether or not a statement has been prepared and filed in accordance with this section, the court may consider any other evidence concerning any victim of the offence for the purpose of determining the sentence to be imposed on the offender or whether the offender should be discharged under section 730.

These sections seem to undermine the procedural fairness safeguards in place to prevent an offender from being sentenced on facts that are not proven. It even removes any evidentiary safeguards by allowing for “any other evidence” to be entered on sentence. This, in my opinion, leaves the door open too wide for unproven aggravating factors and allegations to come before the court.

As with any new legislation, only time will tell how it will play out in practice.

Overall with this Bill, what I see is an attempt to make the justice system more accessible for victims and to include them more in the process. The problem with doing that this way is that the system is set up to dispassionately and objectively deal with criminal acts, often in spite of the wishes of the victim. Despite how that may sound, if the criminal justice system were run at the direction of victims, it would be a brutal unsustainable and unfair system. Certainly there is more room for the needs of victims within the system, but doing so in a way that maintains the independence and state-driven nature of the system is essential. 

Cell Phone Searches

Our society has changed fundamentally ever since we collectively embraced the smartphone. The amount of information that we are able to store on these devices is limitless. As Justice Fish stated in the 2010 Supreme Court of Canada case of Morelli, “It is difficult to imagine a search more intrusive, extensive, or invasive of one’s privacy than the search of a personal computer”.  These days the average iPhone or Galaxy owner stores practcally his entire life on his phone. Social media posts, photographs, e-mails and mapping data exist on our phones and tell a detailed story of our tastes, habbits and whereabouts. One of the challenges of modern laws are to balance the State’s interest in gathering evidence of criminal activity against the suspect’s (and suspect’s family and associates”) right to privacy.

In the 2014 case of Fearon, the Supreme Court of Canada gave the latest word on cel phone searches. Fearon starts from the perspective that digital data is fundamentally different from pre-digital mechanisms. Digital devices store massive amounts of information that sometimes the owner is not even aware exists. As such, the concept of possession – control over an item and knowing that it existscan become easily blurred in the case of digital data. Accordingly, the SCC has acknowleded that laws governing searches of cell phones must consider the special characteristics of digital technology in light of a person’s right to have personal information private unless warranted by law.  

In Fearon, the police arrested the accused for robbery. Without a warrant, they searched his cel phone and found some very incriminating evidence – some text messages and photos relating to the crime. The trial judge found the search to be lawful, and ultimately the case was appealed to the SCC which wrote a 4:3 split decision. Writing for the majority, Justice Cromwell set out the framework for the police when searching a cell phone incidental to a lawful arrest. The decision endorsed the law surrounding a traditional “search incidental to arrest”- that the police must  reasonable grounds for the arrest and that there must be a “reasonable prospect” for fiding relevant evidence from the search. The Court then analyzed whether such a searh was justified under the Charter with respect to the privacy rights a suspect has in his cel phone data. 

Of note, the Court refused to differentiate between the various brands and models and capacities of cell phones. The Court went on to set out a framework for police to use when they sarch cel phones incidental to an arrest. First, the Court held that there is no presumptive prohibition against cel phone searches, nor are exigent circumstances required. The Court went on to require police to limit cel phone searches to “only recently sent  or received emails, texts and photos”. Generally the search of the entire contents are not permitted without a warrant. Cell phone searches will generally only be justified in cases of violence, threats of violence, serious property offeces and drug trafficking offences. Cell phone searches will generally not be justified in cases of minor offences.

Significantly, Fearon imposes a duty on arresting police officers to make detailed notes of the steps they take in executing any search of a cell phone.  The record must be comprehensive, outlining the purpose, duration and steps of the search. In essence, the Crown bears the burden of proving that the warrantless search is a lawful one. With such a legal  framework in place, courts now have guidlines to test whether, on balance, the police can justify their breach of an accused’s privacy rights when they search a cell phone persuant to a lawful arrest. 

With acknowledgement to Scott Hutchison’s paper, “Searches of Cell Phones and Electronic Devices”, presented at the National Criminal Law Program, Edmonton, Alberta,  July 2015.

Some Psychological Explanations for Why People Shoplift

Quite frequently people end up in our offices charged with shoplifting, or what is known in Canada as the offence of “Theft Under $5000” under the Criminal Code. Almost without fail, these people have never been in trouble with the criminal justice system before. They have jobs, if not careers. They have families. They often are very involved in their communities. They have a lot to lose, yet they still decided to shoplift, despite not having a financial need to do so. 

 I hope that these people find some comfort in the fact that we can explain to them that they are not alone in finding themselves in this situation. Some statistics report that as many as 1 in 10 North Americans will shoplift during their adult life. Most of these people do not do so out of financial need, but rather they do it as a response to psychological stressors in their lives, most often depression, but sometimes also anxiety.

 In his PhD dissertation Matthew Geyer did a study of 116 adult shoplifters who were caught for the first time. His study seems to indicate that, in addition to depression and anxiety, there is a correlation between shoplifting behaviour in people and experiences of loss in the time preceding the offence.  

Yves Lamontagne and his team did a similar study of 106 first time offender shoplifters. They were attempting to evaluate the relationship or correlation between demographic factors, anxiety, significant losses, depression, irrational beliefs and shoplifting behaviour.  Their findings included that men and women seem to be equally likely to be arrested for shoplifting, as well as that there are a certain number of people who shoplift as a response to depression or in an attempt to fulfill some other psychological need.  

 Dr. Will Cupchik has made a career out of studying this phenomenon. His research has been dedicated to understanding it and has spanned some 40 years. His book, Why Honest People Shoplift or Commit Other Acts of Theft – Assessment and Treatment of Atypical Theft Offenders, has been published in several different versions over the years and is widely available from on-line book sellers. He has also founded the Cupchik Center for Assessment and Treatment of Atypical Theft Offenders and he offers online treatment for people who find themselves in situations like this. His website is whyhonestpeoplesteal.com.

Being charged with a criminal offence has the potential to be a life changing event. At Mines & Company we not only intricately understand the criminal process related to shoplifting, we understand that there are people and problems behind the alleged offence and we use our experience and knowledge to help our clients navigate the situation with as little fall out as possible. We are also experienced  in accurately informing our clients about the potential implications of a conviction on travel, volunteering and all types of criminal and background checks, as well as working to eliminate these or to minimize them to the greatest extent possible, given the unique situation. If you or someone you love is facing a criminal charge for shoplifting we would be happy to help. 

Supreme Court of Canada to hear Constitutional Challenge to BC’s Impaired Driving Law

A tentative hearing date of May 19, 2015 has been set for the Supreme Court of Canada to hear the case of Goodwin et al. vs. British Columbia (Superintendent of Motor Vehicles).

This high profile case will decide whether the BC Supreme Court and the BC Court of Appeal got it right when they ruled that it was indeed constitutional for the BC Government to pass Motor Vehicle Act legislation that permits police to regulate impaired driving not through the traditional criminal law process but, rather, through an administrative process that effectively grants police the power to immediately issue 90 day driving prohibitions to drivers who fail a roadside breath screening test (“IRP”). Any challenge to the sanctions are not broght before a judge, but must be made to an adjudicator delegated by the Office of the Superintendent of Motor Vehicles

In the lower court cases, the consitutional challenges made by drivers focussed on four areas:

(a) The British Columbia legislation is unconstitutional because the IRP regime is actually criminal law. Under the “division of powers” as set out in the Constitution, only the federal government can pass laws that are designed to curb criminal behaviour. In essence, the argument is that the IRP regime is civil rights law (which is within the jurisdiction of the Provinces); it is not criminal law (which is within the jurisdiction of only the federal government).

(b) The IRP regime violates Section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. In the criminal law context, a search and seizure can only legally occur if the police have reasonable and probable grounds. Under the IRP regime, police need have only a reasonable suspicion that the driver has “some alcohol in their body”.

(c) The IRP regime violates Section 11 of the Charter of Rights and Freedoms, which guarantees that individules will be presumed innocent until proven guilty beyond a reasoble doubt by an independent and impartial tribunal. 

(d) The IRP regime violates Section 10 of the Charter of rights and Freedoms which guarantees that everyone whom is arrested or detained be provided with their right to obtain legal advice from counsel.   

As litigating lawyer Howard Mickelson QC points out, the Goodwin case is about more than impaired driving. It is about the extent to which provincial legislation can impinge upon the criminal law powers of Parliament. It is about the extent to which provincial legislation can trench upon a driver’s Charter rights in order to create improved efficiencies for the administration of justice, including cost savings for police, Crown counsel and the courts. The supreme Court of Canada will be asked whether the provinces can replace the federal criminal law with civil, administrative regimes that target wrongful behaviour.

We believe that this case is hugely important for all Candians. Provinces across the land are increasingly creating legislation that deals with criminal behaviour. The BC Civil Forfeiture Act certainly comes to mind as another regime which impinges on the federal criminal law power. Under Civil Forfeture provisions, the Government of BC can seize “offence related property”, even where the owner of that property has not been charged with a Criminal Code or Controlled Drug and Substances Act offence, or even where they have been charged, tried and found not guilty. The reasons provinces are ennacting these regimes are varios, but include improved deterrence, improved efficiency and a chance to recover administrative costs from those alleged to have violated the law.

In our view, any efficiencies and cost savings gained by these provincial regimes are outweighed by the loss of protections afforded by the criminal law and the rights and freedoms guaranteed under the Charter. Under the IRP regime for example, a driver who blows a “fail” is immediately prohibited from driving for 90 days. This often results in the person losing his or her job and can impact severely upon the person’s family. While the driver has the right to challenge the prohibition, the legislation sets out that the hearing will be conducted by a delegate of the superintendent of Motor Vehicles, not a judge. The police officer needs only to submit a one page Report to Superintendent, in which ceratin boxes need to be checked and certain blanks filled out. Essentially this report “deems” that the breathalyzer machine was in working order and that it produced the stated result.There is no ability to cross examine the invetigating officer at all. We believe that the vast majority of drivers who have been prohibited by this regime face an extremely tough uphill battle in an effort to have the adjudicator revoke their driving prohibition. 

These provincial regimes, as exemplified by the IRP law, represent a fundamental shift in Canadian criminal law. The Goodwin case is a hugely important case that addresses this shift in the provincial governments’ policy toward criminal law. Ultimately, the Supreme Court of Canada decision will determine the scope of a province’s power to ennact legislation that has traditionally been only within the federal government’s jurisdiction to enact criminal law. We hope that the Supreme Court of Canada will rule in Mr. Goodwin’s favour and strike down the IRP regime.