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VPD Officer Smashes Car Window

The law firm at which I work is frequently contacted by media outlets for comments on stories related to criminal charges and impaired driving.

We often post on our blog and Facebook pages links to the media stories, and these links can inspire a lot of commentary. It should come as no surprise that Canadians have strong feelings about drinking and driving, about police misconduct, and about their Charter rights.

Recently, Paul was interviewed by CBC News in relation to a story about a police officer smashing a driver’s car window. We posted the link to the interview on our Facebook page. Unsurprisingly, it generated a significant response. Surprisingly, however, was the nature of the responses we received.

Commenters on the post appear to fall into two categories: those who sympathize with the driver and are offended that he was not provided his Section 10(a) rights; and those who sympathize with the police, and view the driver as obstructive and guilty. Many people who commented seemed to equate the fact that he was charged with possession of a controlled substance, and possession for the purpose of trafficking with some objective justification for the window smash.

I was interested and a little shocked to see that people fell into either of two extremes in this regard. Had I been in the driver’s situation, I cannot say that I would have done what he did, but I am also cognizant of the fact that behaving as he did can result in the window being smashed, however unlawfully. But the nature of the comments in favor of the police causes me concern about the understanding of Charter rights that both police (many commenters on our posts are police officers) and some citizens seem to have.

Every person who is arrested or detained has the right to be promptly informed of the reasons for their detention. It is not enough for an officer to simply say “You are under arrest.” He must advise the individual of why he is being arrested. The smell of marijuana alone is not enough to arrest someone. The individual in the video was right in the legal sense to inquire of the officer as to his reasons for arrest. He did nothing wrong, legally, in asking why he was being arrested and in refusing to step out of the vehicle until he knew why.

Worse, however, is the disregard for the presumption of innocence. This is often referred to as the golden thread of our justice system. Without it, justice fails. Look no further than upcoming amendments to the Motor Vehicle Act to see a perfect example of how justice will be failed by the removal of this presumption. Simply because a person is charged with a criminal offence does not mean that they are guilty of it. Nor does it mean that the officer was acting pursuant to any lawful authority in detaining and/or arresting them. To assume that the conduct of the police is justified simply because there were charges laid erodes the justice system.

Discussion of these issues is important. It’s important to know why we have the rights we have, and how they benefit us.

What We Can Learn About DUI From #TheDress

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Unless you’ve been living under a rock for the past week, you probably have heard about #TheDress. The question posed with the photograph was “what colors are the dress?” Different people saw different colours.

In my office, Paul saw black and blue. I saw blue and gold. Our articled student saw gold and black and blue. Our support staff saw white and black. Everyone had a different answer.

I began to think about our subjective views of the colours of the dress, and how similar that was to impaired driving files. It is not uncommon that I have a client who is charged with drunk driving and there are multiple witnesses. Some officers say the client is stumbling. Others note no balance problems. Some police officer say the speech was slurred or the face was flushed. Others do not see these problems. Some witnesses say that the client was drunk after a collision, while others simply say the client seemed disoriented or shaken up.

Of course, there has been extensive discussion in the psychological and scientific communities on the fallibility and unreliability of eyewitness evidence.

Just as we all see something different when we look at The Dress, we also see things differently when we look at a person who is supposedly impaired. And our subjective perception can be influenced by what information we have been given in advance.

For example, if you were told that the dress is actually black and blue, you might look at the dress to see if you can see black and blue. Similarly, police officers responding to a report of a possible impaired driver are often looking at the driver to see if what they see matches their pre-determined notion of what the driver is doing. All of a sudden a lisp or an accent is slurred speech.

It’s human nature that when we are told something is a particular way, especially from a reliable source, that we expect to see it that way. And we will subconsciously craft our perceptions to match our expectations.

It’s a form of bias known as experimenter’s bias.

As defence lawyers, we know about this type of bias. We are on the lookout for it, and we try to structure our cross-examinations and our theory of the case around the possibility of bias where it exists.

The Dress is a good reminder that what we think we see may not always be reliable or accurate. And that this is also true for drinking and driving cases.


Loopholes in DUI Cases

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An article was published on the CBC website this week, suggesting that impaired driving incidents are not properly declining due to “loopholes.” Frankly, as a lawyer who deals primarily with impaired driving cases, I found this article to be offensive and ill-informed. I want to use this blog post to address some of the most concerning aspects of this article, and the opinions quoted in it.

What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as “an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system.” The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.


What to Consider when Hiring a Criminal Lawyer

Most people do not need to hire a lawyer to deal with criminal matters very often in their lives. And so they do not know what they are supposed to consider when hiring a criminal lawyer. It’s often easier to hire a lawyer to help with a real estate transaction, a divorce, or a will, for example. These are the types of lawyers that many people need, and people are not embarrassed to ask for references or recommendations from friends. But criminal charges can be a different story entirely. Most of my clients have not told anyone outside their immediate family about the problems they are facing. So choosing the right lawyer can be difficult.
Price
Price is one factor that goes into people’s decision making about their lawyers. While there are clearly limitations based on what you can afford to spend, you should not be guided so much by the cost of the lawyer. There are some very excellent lawyers who come at a low price. There are some lawyers who charge more but may not be as skilled in a particular area. There is an old saying that goes “You can pay $500 for $5 of advice from an old lawyer, or $5 for $500 of advice from a young lawyer.

Legal fees are not standardized. Lawyers set their own prices, largely based on what they believe their services are worth. At our office, we try to keep prices reasonable because we do not believe anyone should have to go broke defending themselves from a criminal charge. Our fees are mostly determined by the amount of work we have to do in a particular case and what it will cost in terms of labour, time, and office resources to do that work. It’s not a scientific formula, but it’s close.

It’s a mistake to think that the most expensive lawyer is the best. This might sometimes be true, but it is equally as often false. Price should only inform your decision about what lawyer to hire insofar as it relates to what you can afford. Beyond that, you should not draw conclusions based on dollars alone.

Age/Experience
A short while ago, I dealt with a client who had a particularly complex case. Throughout the different steps involved in the case, this client insinuated to me repeatedly that they might be better off with an older lawyer. Honestly, I was offended. I was working hard on the case, and it was well within my wheelhouse to deal with the issues that arose. There have been countless other times that clients and potential clients have suggested that I am too young to handle their cases.

Age and experience are two different things. Personally, I believe that my track record of successes in Immediate Roadside Prohibition and DUI Impaired Driving cases speaks far more about my ability to handle complex cases than my age does. Experience comes from doing something, learning what is necessary, and doing it over and over again. There are many older lawyers who do not have the degree of experience I do in IRPs, just as I do not have the experience they do in other types of cases.

When you are choosing a lawyer, you should look for someone who is experienced in the area you need. Look for a proven record of success, and a reputation for winning or arguing new angles and avenues of defence. Do not be afraid to ask potential lawyers questions about the area of law you are dealing with to see how they answer. A lawyer with the right amount of experience for you will be able to answer you questions clearly and succinctly.

Fit
At the end of the day, you want to be comfortable with the lawyer you have. When you speak with them on the phone or in their office initially, you want someone you feel you can trust. You want someone who puts your mind at ease and makes you feel as though your case is something they can handle. This isn’t to say you should want to be your lawyer’s friend. Trust me, you do not want to have your friend be your lawyer or your lawyer be your friend. But your lawyer should make you feel comfortable with your decision to hire them.

Your lawyer is going to be the person who will be arguing your case in court, and making sure your version of events is properly heard. You need to be able to trust that they will do that for you. There is a lot to be said for someone who just makes you feel comfortable with the process. Trust your brain and trust your gut and you will find the right lawyer for your criminal case.

What It Takes to Defend an IRP

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A lot of people that initially call my office aren’t sure how to go about defending their Immediate Roadside Prohibition. They don’t know what it takes to defend an IRP. As with any legal work, most clients whose cases I successfully have defended are unaware of all that has gone into their defence.

Simply put, defending an Immediate Roadside Prohibition isn’t just about presenting my client’s version of events and hoping the adjudicator makes the right decision. There is so much more that goes into defending an IRP.

Knowing the Law
A huge aspect of defending clients who are facing long driving prohibitions comes down to knowing the law. This is why people hire lawyers in the first place — because they want someone who has extensive experience in a particular area and is best equipped to handle their case. When I defend clients facing Immediate Roadside Prohibitions, in every single case, I don’t just present their version of events. My submissions contain a comprehensive breakdown of all the applicable case law, and how it relates to their cases.

Part of knowing the law is knowing the cases that work for and against my clients. Just because a person lost their IRP appeal in BC Supreme Court, doesn’t mean that the decision should be disregarded. I have attributed a great deal of my success to the fact that I am able to glean the legal principles from the cases, and apply them even when the outcome has not been favourable.

One of the reasons I know the law is because I have been fighting these cases not just before the tribunal, but also in BC Supreme Court. Some of my successful decisions have resulted a complete change in practice and procedure at RoadSafetyBC.

Knowing the Machinery
One benefit that I have, that my clients often do not, is that I know the machinery. Not only have I operated and used an Alco-Sensor IV DWF on numerous occasions, but I have also read the manufacturer’s manual, the RCMP manual, and the calibration manuals. I have calibrated and checked the calibration of these devices using both types of alcohol standard. I have an Alco-Sensor IV and an Alco-Sensor FST in my office. I’ve even been certified in the calibration and operation of the Alco-Sensor FST by the manufacturer.

Because I have access to the equipment and the information about the equipment, I am able to discern easily from police records whether the breathalyzers were properly operated or functioning properly at the time of the test. There are so many nuances in the operation and maintenance of these devices that can be overlooked by people without a trained eye. Knowing the breathalyzer is a significant contributing factor to my successes in IRP DUI cases.

Never Giving Up
In truth, this is probably as much a personality flaw as it is a benefit to my clients. When something matters to me, I will fight to the bitter end. When it comes to defending Immediate Roadside Prohibitions, I never give up. Anytime there is a change in the law that benefits my clients, I will spend evenings and weekends in the office, pulling files, contacting clients, and making supplemental submissions to the RoadSafetyBC tribunal or the Attorney General. It is not uncommon for me to fax submissions to the Superintendent of Motor Vehicles over the weekend, until their fax machine runs out of memory and paper.

If you receive an Immediate Roadside Prohibition, you need a lawyer who knows the law, knows the machinery, and never gives up. I cannot promise that I will win your case, but I can promise that I am all those things.


Driver Risk Premium and Driver Penalty Point Premium

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Many people find the information about the Driver Risk Premium and the Driver Penalty Point Premium confusing and difficult. In the third part of my series on the consequences of a traffic ticket in British Columbia, I am going to try to add some clarity to this type of consequence to a traffic ticket. Part one is available here. Part two can be read here.

ICBC can and will withhold your renewal of your driver’s license, or reinstatement of a suspended license until these amounts are fully paid if they are owed to ICBC.

Driver Penalty Point Premium
The Driver Penalty Point Premium is based on the number of “points” you have on your driving record. Different traffic offences have different point levels, and the premium is based on the number of points you accumulate in a one-year period. If in a one-year period you receive three or fewer points, then you will not have to pay the premium. For example, if you receive a regular speeding ticket you will be given three points. You will not have to pay the premium. However, if you get a regular speeding ticket and a ticket for disobeying a traffic sign, you will accumulate five points. You will be required to pay the premium.

The amount of the premium is based on the number of points you have. For four points, it is $175. By six points, it jumps to $300. The premium goes as high as $24,000, if you get 50 points in a one-year period. You’d have to be pretty committed to poor driving to achieve that, so don’t stress that this will happen to you. You can see a chart that calculates the amount on ICBC’s website.

Points are associated generally with driving behaviour that creates a risk to the public. The number of points is generally linked to the type of behaviour. A chart setting out the point level for various offences can be found here.

The time period in which ICBC will consider points accumulated is five months before your birthday. I was born in May, so ICBC will look at points accumulated on my driving record from January to December.

Driver Risk Premium
The Driver Risk Premium is assessed based on conduct that violates the Criminal Code, has a ten-point value under the Motor Vehicle Act or results in a roadside suspension. Two roadside suspensions are necessary before the Premium is triggered. You will also receive a Driver Risk Premium if you are issued an excessive speeding ticket.

Driver Risk Premiums are calculated on your birthday every year, over a three year period. A review of your past three years of driving will be done to determine whether you are required to pay this premium. The table located here outlines the premium values. As you can see, the amounts add up quickly, and escalate rapidly.

If you are assessed a Driver Penalty Point Premium and a Driver Risk Premium, you will only have to pay one of the two. You pay whichever is higher. So, for example, excessive speeding is worth 3 points. If you receive an excessive speeding ticket and a ticket for disobeying a yellow light, which has two points, you’ll have five points. But the Driver Risk Premium is higher than the penalty point premium, so you’ll pay that. This can come back to haunt you — the Driver Risk Premium is over three years, so you can end up paying penalty point premiums one year, and the Driver Risk Premium the following two years.

One example of this is if you are convicted of Driving While Prohibited under the Motor Vehicle Act, you’ll receive 10 points. You will then pay the Driver Penalty Point Premium for those ten points, followed by the Driver Risk Premium the following two years.

Can I get the Driver Risk Premium or the Driver Penalty Point Premium Reduced?
You cannot get the Driver Risk Premium reduced.

However, you can apply for a reduction in the Driver Penalty Point Premium. In order to have it eliminated completely, you must surrender your license for one year from your birthday. This means no driving for one year. Alternatively, it can be reduced if you voluntarily quit driving for at least 30 days. You can voluntarily surrender your license to ICBC at any point to seek a reduction. After 30 days, you can call ICBC and find out what your new amount owing will be.

If you are given a driving prohibition, you can also apply for a reduction of the amount owing. You will need to be suspended from driving for at least 60 days, pay the reinstatement fees, and reinstate your license. In all likelihood the $250 reinstatement fee and $31 short term license administration fee will outweigh any benefit to you unless your Driver Penalty Point Premium is very high.

Finally, if you’ve been licensed in another province for at least 30 days, living outside Canada, incarcerated, or medically unable to drive for at least 30 days, you can apply for a reduction. You will need documentation to prove to ICBC that you have met one of these exemptions.


The Financial Consequences of a Traffic Ticket in British Columbia

This is the second part in my series on the consequences of a traffic ticket in British Columbia.

It should come as no surprise to anyone that traffic tickets in British Columbia come with financial consequences. However, understanding the financial consequences of a traffic ticket in British Columbia can be complex and confusing. The fine listed on the ticket is often not the end of what you will have to pay as a result of receiving a ticket.

Minimum Fines:
Everyone knows there is a fine for a ticket. The fines you pay are standardized by ICBC, which means that unless the officer exercises discretion to increase or decrease the fine, you will pay the amount pre-determined by ICBC. Oftentimes, however, the fine listed on the ticket is not the minimum fine for the offence.

Mandatory minimum fines for traffic offences are determined by the Offence Act Violation Ticket Administration and Fines Regulation. If you are wondering whether you are eligible for a fine reduction on a traffic ticket, you can consult this regulation and cross-reference the offence on the ticket with the offence listed to see what the minimum is. A court has no discretion to lower the fine beyond what is set out in this Regulation.

You can however, ask the Court for more time to pay a ticket if you are unable to afford the fine. If you do not dispute a ticket, the ticketed fine is due 30 days after the ticket has been issued to you.

I have often seen officers coax self-represented litigants in traffic court into pleading guilty on the promise that they can seek a fine reduction. You should be wary of this. Many officers may not know the minimum amount, or they may be lying to you to convince you to plead guilty. The police do not have to tell you the truth. They are allowed to lie to you to further their investigation.

This is frustrating to witness as a lawyer, because I know that these people are making a decision without being armed with all the information. This is why an experienced traffic lawyer can assist you in defending yourself against a traffic ticket.

Maximum Fines:
The Offence Act allows a maximum fine of $2000 for any Violation Ticket. There is no discretion to increase the fine to anything beyond this amount.

I often receive calls from clients who are concerned that if they dispute their traffic ticket the fine amount could go up. This cannot happen, unless you expressly agree that you are willing to pay a higher amount. Even then, some Judicial Justices of the Peace will not increase the fine beyond what is listed in the ticket.

This issue was considered by the Court of Appeal in R. v. Miner. There, Mr. Miner had pled guilty in traffic court and the Justice of the Peace fined Mr. Miner $400, despite the fact that the ticket listed only $100 as the fine amount. The Court determined that this was wrong, and the JJP had no jurisdiction to do so, stating:

In the absence of language which would clearly support the position of the Crown, I would be loathe to accede to its submission where the effect of that submission is that the offender is lulled into thinking, by the words of the violation ticket, that insofar as any fine goes, it will be “as prescribed”, being $100.  In my opinion, the only rationale for not advising the offender that, if disputed, the fine could be higher than the “prescribed fine”, is that it was not intended that the fine on unsuccessfully disputing the violation ticket could be other than the prescribed fine shown on the ticket itself.

So if you are wondering whether the fines can double or increase because you disputed your ticket, know that in British Columbia this cannot happen.

Restitution:
If you are involved in an accident and damage is caused to property, you may be ordered by the Court to pay restitution. This is effectively repayment of the damage caused. It is unusual to see Restitution Orders, which are typically attached to a Probation Order, in traffic court because insurance will often cover this type of damage.

Victim Fine Surcharge:
Every fine amount listed on your ticket includes something called a Victim Fine Surcharge. Section 8.1 of the Victims of Crime Act indicates that any fine payable is subject to this surcharge. In British Columbia, the Victim Fine Surcharge is 15% of the fine amount.

The amount listed on the ticket includes the surcharge, so you are aware of the total amount owing when you are issued the Violation Ticket.

Many people do not understand the surcharge, particularly in traffic cases where there is no readily identifiable “victim” of the poor driving. The money obtained from these surcharges is not paid to victims of crime or offences directly, but rather is paid into a special account. The Attorney General may then determine how the money is to be distributed and applied in the Province.

Driver Penalty Point Premiums/Driver Risk Premium:
I will discuss these premiums in detail in a later post, as they are somewhat confusing and deserve special attention. However, the short version is that some traffic tickets qualify for Driver Risk Premium charges, assessed yearly over three years. If you receive more than three points in a one-year period, you will be required to pay the Driver Penalty Point Premium.

You can review the number of points associated with any given offence on ICBC’s website. There is also a chart listing which offences qualify for the Driver Risk Premium.

License Reinstatement Fees:
If you are given a driving prohibition by the Court, or a driving prohibition is issued to you as a result of receiving a traffic ticket, you will be responsible for paying the license reinstatement fee charged by ICBC. This is a $250 fee, issued to anyone anytime their license is suspended and then reinstated. You will not usually be informed of this when you are issued the driving prohibition, so it can come as a surprise to many people when they go to renew their license.

In order to renew a suspended license, you are required to pay off all outstanding debts and money owed to ICBC for everything listed above.

The Consequences of a Traffic Ticket in British Columbia

The consequences of a traffic ticket in British Columbia can be significant and not easily determined. As a Vancouver criminal defence lawyer who focuses on impaired driving cases, I often encounter clients who have received traffic tickets. Before speaking with me, many of my clients think that by paying their ticket that will be the end of it. This cannot be further from the truth. There are many consequences to traffic tickets that can have a significant impact on your license.

Over the next few posts, I will discuss some of the lesser-known consequences of traffic tickets in British Columbia.

Driving Prohibitions:

Even a single ticket can trigger a driving prohibition, sometimes a lengthy one. There are three ways a driving prohibition can result from a traffic ticket.

The first, and least common, is the officer submits a report to the Superintendent of Motor Vehicles at RoadSafetyBC outlining your alleged driving behaviour. The Superintendent or an adjudicator reviews this report and can then send a driving prohibition in the mail. Typically these prohibitions are about six months in length. They can be disputed, but they take effect immediately upon receipt, which means that you are prohibited from driving while disputing the prohibition.

Disputing your traffic ticket does not prevent these prohibitions from being issued. The officer’s allegation is the sole basis of why the prohibition is issued, regardless of whether what the cop says is bogus.

This type of driving prohibition was recently discussed in Wang v. British Columbia (Motor Vehicles), 2012 BCSC 101. I have a good track record at having these types of prohibitions revoked for my clients. They are difficult to dispute and it is important to have someone who knows what works.

The second way you may receive a prohibition from driving as a result of a traffic ticket comes from disputing the ticket in court. If you are unsuccessful in your dispute or if you plead guilty the officer prosecuting the ticket can seek a driving prohibition as part of your sentence. In some cases, the Justice of the Peace can impose a driving prohibition on their own accord. These court-ordered prohibitions can only be disputed by appealing the sentence to the BC Supreme Court.

Finally, you can also be given a driving prohibition by the Superintendent of Motor Vehicles once a ticket is added to your driving record. Disputing your ticket will prevent you from being issued a prohibition until your dispute is resolved.

These prohibitions are issued under Section 93(1)(a)(ii) of the Motor Vehicle Act. This section gives the Superintendent of Motor Vehicles discretion to issue a driving prohibition based on an unsatisfactory record. This term is not defined in the legislation, meaning that the adjudicators at RoadSafetyBC have full discretion to decide what is unsatisfactory.

These prohibitions can be disputed. The Superintendent will consider whether the driver’s need to drive outweighs the public interest in prohibiting the driver based on an unsatisfactory record. Often this is a high onus on the driver, so the assistance of a lawyer like myself with a record of success in these cases can be extremely helpful. You can read more about these prohibitions, which are served under the “Driver Improvement Program” here.

I have had many people under a misconception that there is a “6 point” or “2 ticket” rule regarding these prohibitions. This is not true. There is no hard and fast rule, but you can expect that if you have a Class 7 or “N” license, even one ticket will result in a driving prohibition, particularly if you have been ticketed for anything to do with alcohol or drugs, cell phones, or excessive speeding. As a Class 7 driver, your two-year probationary period resets with every driving prohibition so it is important to dispute tickets you receive.

If you have a Class 5 license or better, generally the Superintendent’s delegates look for a pattern of behaviour. For example, someone who gets several speeding tickets in a one-year period might be subject to such a prohibition.

People are also under the common misconception that only those tickets that accumulate driver penalty points can trigger a prohibition. It is uncommon for this to occur, but I have acted for clients who received prohibitions for too many seatbelt tickets, prohibitions for too many No N tickets, or other similar tickets.

These consequences of traffic tickets are not listed on your ticket. You may not know until it is too late that there were more serious consequences to your ticket than you originally thought. Once you pay your ticket, it is too late to dispute it. That is why it is important to speak with an experienced and knowledgeable traffic lawyer before going further.

MADD Canada’s Radio Advertisements

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As a criminal defence lawyer, I spend a lot of time in my vehicle driving from one courthouse to the next. A necessary evil involved in this is that I also spend a lot of time listening to the radio. And, of course, radio ads. Around mid-October 2014, I noticed an ad played in almost every advertising break. And like most radio ads, it was mildly irritating. But the more I listened, the more infuriating it became.

This ad in particular was for MADD Canada. Given the frequency with which it played, and the prime driving time (to and from work, it would play at least twice in my twenty two minute commute) it could not have been cheap to purchase this advertising space. Although MADD Canada claims to post all of its public advertising campaigns on its website, I could not find this one.

That doesn’t surprise me. The ad is particularly misleading. It begins with the sound of a gavel banging, and a bailiff shouting out “All Rise.” Clearly the intention is to simulate a courtroom. This alone is misleading, as there are no gavels used in Canadian courts and I don’t think I’ve ever heard anyone call out “All Rise” when a judge walks in.

The ad goes on to say that MADD Canada advocates for victims, and they believe that offenders who drink and drive and kill someone deserve a long term in jail. That their goal is legislative reform to make sure that happens.

The implication here is that people who drink and drive and cause death in Canada do not receive jail sentences. This is what continues to infuriate me. MADD holds itself out as an organization that aims to “stop impaired driving and support victims.” Which is a noble goal. But the desire to ensure that those who kill someone in an impaired driving tragedy go to jail for a long time achieves neither of these goals.

Worse still, the suggestion that impaired drivers who cause deaths do not go to jail is simply wrong. While there are no mandatory minimum jail sentences in impaired death or bodily harm cases, sentencing principles generally result in significant jail terms for these types of cases. It is extremely rare to see cases where people who drink and drive and cause death or injury do not serve a jail term. In cases where jail sentences are avoided, there have always been significant steps towards rehabilitation and repatriation, as well as overtures from the victim’s family that jail is not appropriate.

For an organization that the public trusts for education and information on drinking and driving to imply that those who drink, drive, and kill generally avoid jail is reprehensible in my mind. It puts public support behind initiatives designed to create mandatory minimum jail sentences for long terms, and do not reflect the complex realities that those involved in these types of offences face.

Most people who drink and drive and claim a life are not hardened criminals. They are not served in any way by a jail term. Separating these people from society is not necessary to achieve any real purpose, such as rehabilitation. Often, those who kill in drunk driving incidents kill their friends or family members. The consequence of the guilt and remorse that accompanies that cannot be told. And in some cases, the families of the victims realize that a jail sentence will not bring their loved one back, and will not do anything to heal the wounds this tragedy has caused.

There are many reasons mandatory minimums are not appropriate in these cases. MADD Canada appears to have as its motive to deceive the public into believing they are necessary to have jail sentences. This is not true. It is wrong, and misleading, and MADD Canada should reconsider its continued broadcasting of this advertisement. There are better ways to get the message across and achieve their goals, without attempting to mislead the public.

Finally, it’s upsetting generally that the organization appears to be taking shots at the court system for failing victims. That is not the role of the courts. The courts are there to fairly administer justice. The problem when dealing with an organization with the reach and resources of MADD, is that they know full well no one has the money to counter their misinformation. And nobody is taking radio space to correct it either because standing up for the rights of alleged impaired drivers is politically incorrect.


Privacy and your Charter Rights in the digital age

This month has been an interesting month insofar as the development of the law pertaining to privacy and Charter rights in the digital age.
The Decisions:
The first development came with the release of R. v. Spencer from the Supreme Court of Canada. This case concerned the application of the Person Information Protection and Electronic Documents Act to demands made by police to Internet Service Providers for subscriber information. Without a warrant, police attempted to obtain personal information about the subscriber to a particular IP address that would link him to accessing, possessing, and making child pornography available to others. At issue was whether the police could rely on powers set out in the PIPEDA as broad authorization to demand, without a warrant, this information from the ISP.

The Court unanimously concluded that
internet subscribers have a reasonable expectation of privacy in their internet activity. The subject matter of the search was not only the name and address of the subscriber, but information about their internet activity. It is generally understood that internet browsing is done under the veil of anonymity. As such, internet activity engages what the Court described as significant privacy concerns. The PIPEDA does not grant search powers to the police, and the purpose of the legislation is to protect personal information, not to disclose it.

That said, the evidence was ultimately admitted as the police were acting in good faith and in their belief that they were following the law.

Following this, the BC Court of Appeal
released its reasons in R. v. Mann. This case dealt with the power of police to search a cell phone for its contents, incidental to a lawful arrest. At common law, police have a power to search incidental to arrest. They may search the offender and surrounding area for evidence related to the offence. During the search of Mr. Mann, police seized a BlackBerry cell phone. They then downloaded the entire contents of the phone without a warrant.

The Court of Appeal found that there is a significant privacy interest in the contents of a cellular phone.
Relying on the Supreme Court of Canada’s decision in R. v. Vu, the Court found that people have a heightened privacy interest in the contents of their computers and cell phones. Essentially, in the digital age, all of our personal lives are contained on our devices. At paragraph 120, the Court wrote:

It now seems obvious that the individual’s privacy interest in the contents of a device such as a BlackBerry outweighs the state’s interest in law enforcement, and a warrantless search of those contents is unreasonable according to the test set out in Collins.


However, as with Spencer, the evidence was still admitted. The Court concluded that the police were acting in good faith and that at the time of the investigation, the law on cell phone searches was not as developed and settled as it is now.



But if the evidence is not excluded, what does this mean?
Many people get lost in the fact that the evidence has. nonetheless, been excluded. The fundamental reasons behind the inclusion of the unlawfully obtained evidence in these cases has to do with the lack of clarity in the law at the time of the searches.

That logic will not apply in the future, now that the law has been clearly identified by the higher courts. This same result was achieved in R. v. Evans, a 1996 SCC decision. That case pertained to a “sniffer search” undertaken by using the common-law power to knock and approach a door. The Court concluded this was an unlawful search but admitted the evidence because the police were acting in good faith. It is now generally accepted that sniffer searches of this nature, conducted without a warrant, are unconstitutional and evidence is not so freely or readily admitted as a result of these searches.
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