An opportunity to bring in more diversity to the Supreme Court of British Columbia is coming as B.C.’s current chief justice, Christopher E. Hinkson, is retiring from the position come October, after serving in the role since 2013. It is a chance to implement change to a position that has been historically held by white men.
“I walk down the hallways of the B.C. supreme court, I look at the portraits, and none of them look like me, and that doesn’t make me feel like I belong in this profession, I don’t think [it] reinforces the idea for other people that they need to make sense for people from more diverse backgrounds.”
Vancouver-based Metis lawyer Kyla Lee on CityNews
Lee says the problems candidates for the top job see are compounded by a lack of diversity at all levels in the legal profession.
The first indigenous supreme court justice was only appointed as recently as 2022, with the first justice who is a person of colour appointed in 2019.
The Vancouver Police Department is under scrutiny after Elijah Barnett, an innocent man, was wrongfully arrested and shot with rubber bullets while walking his friend’s dog in Yaletown last week. The police were responding to reports of a suspect in a violent home invasion in Calgary, and believed that Barnett was the suspect. However, they realized their mistake within minutes of taking him into custody. Barnett suffered injuries, cuts, and bruises as a result of the arrest.
“I remember walking out of the apartment building and the next thing I remember I’m on the ground and they attacked me from behind,” said Barnett.
Justice is difficult to get in cases of police misconduct
Kyla Lee explained, “The office of the police complaints commissioner will do an investigation and they’ll determine if there’s been a violation on behalf of the police, but they can’t really award compensation for injuries that were suffered.”
“In order to get compensation you have to sue the police and that can be a lengthy, expensive and time-consuming process,” Lee added.
The Office of the Police Complaint Commissioner will conduct an independent review of the circumstances of Barnett’s arrest. Barnett is seeking accountability for the officers involved, including their suspension without pay and ultimately being charged. Meanwhile, the suspects involved in the Calgary home invasion have been arrested and charged.
The province’s three-year experiment on decriminalization of illicit drugs for personal use is under way. For it to succeed, governments, and possibly the courts, will have to tackle the issue of safe supply.
“Nobody wanted to do it. Nobody still really wants to do it, but yet it’s happening.”
That’s how Kennedy Stewart, former mayor of Vancouver, describes how his city and British Columbia became just the second place in North America to decriminalize hard drugs.
As of February, the province’s residents can legally carry up to 2.5 grams of heroin, crack, cocaine, MDMA, or fentanyl. It is arguably the most significant legal change yet in Canada’s effort to stem the rise in deaths from the opioid crisis.
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The long road to decriminalization
The wheels of decriminalization have been in motion for quite some time. “I don’t think that there’s been much significant change yet,” says Kyla Lee, who practises criminal law in Vancouver.
Lee, who is vice-chair of the CBA’s criminal law section, notes that the Public Prosecution Service of Canada (PPSC) promulgated a new policy in 2020, calling on Crown prosecutors to avoid laying simple drug possession charges, with some exceptions. At the time, lawyers worried that the guidelines would lead to little actual change.
But things did change in Vancouver, particularly in the Downtown Eastside, says Lee.
“I haven’t seen, since PPSC’s policy charge, a single charge approved on its own for possession,” she told CBANational. Even outside the city, charges have declined substantially — save for the occasional arrest in Whistler for cocaine possession, she says. Arrests have been relatively few and far between.
There had been fears that police would charge drug users with more serious offenses — like possession for the purposes of trafficking.
But those have been rare, too, says Lee. “As far as police enforcing that policy through arrests…it wasn’t happening as much, especially not in Vancouver,” she says. The defence bar has been pushing back against those charges when they did arise. The message was that trying to upgrade simple possession charges wouldn’t fly.
Organizers behind a new billboard say its intention is to encourage conversation about BC students’ education; however, it is being criticized for amplifying harmful misinformation.
Get Awake is the organization behind the sign hung earlier this month along Highway 97 in Kelowna.
The sign reads, “What are your kids REALLY learning in school?” and includes a photo of a cartoon which appears to be a teacher wearing a face mask in front of a 2SLGBTQ+ flag.
In a statement, Get Awake explains there are several meanings to the sign including claims that people who disagree with “radical and harmful agenda being pushed on kids” are being bullied.
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Advocacy Canada has created a petition for the removal of the billboard.
Vancouver Criminal Lawyer Kyla Lee describes the billboard as “abhorrent” but said it’s not unlawful signage.
“The billboard is protected expression under the Charter of Rights and Freedoms, which functions to protect free expression even where it is distasteful,” she explained. “The billboard appears to be carefully worded to also not engage in discrimination but instead to suggest people think critically about what is being taught in school.”
“So there is nothing that clearly amounts to a human rights violation on the billboard itself either.”
For this billboard to be considered hate speech, Lee said it would have to promote hatred of a person or “advocate for a breach of the peace or violence.”
The provincial and the federal governments are looking into ways billboards like Get Awake are harmful and can be considered “hate speech,” Lee added.
Priuses spinning out into a snowbank. Buses stuck on hills. And now, snarling traffic leaving hundreds of people stranded in the biggest snowfall of the year.
It’s not uncommon to have snow in Metro Vancouver, but for some reason, it always seems to come unexpected.
But what happens if you had summer tires on and got in an accident? Can driving your car without winter tires void your insurance coverage if you get in a accident?
There are two things ICBC looks at to assess an insurance claim, says criminal lawyer Kyla Lee — one, are you insured? Do you have certain offences that can invalidate your insurance such as an expired or prohibited licence?
If you drive without snow tires along a mountain highway in the winter, you may be in breach of the law, but not any more than if you were speeding, says the lawyer.
“Not following the rules of the road doesn’t mean you’re not insured,” she said. “You’re still insured, you’re just negligent.”
That could affect how much your insurance will go up or whether or not you have to pay a deductible with the claim.
The Supreme Court of Canada’s 5-4 decision in Sharma has left many in the legal community disappointed with its interpretation of Section 15 Charter rights and in addressing the impact of mandatory minimum sentences on Indigenous people, women in particular. Still, there is reason for optimism that the federal government’s Bill C-5, currently before the Senate, will mark an extra step towards removing some of them from the Criminal Code.
“The outcome is really frustrating,” says Kyla Lee, a criminal defence lawyer with Acumen Law Corporation and the vice-chair of the CBA’s criminal justice section. “There is obviously a significant conflict between Sharma and previous Section 15 decisions, which talks about where the burden lies in proving that something is discriminatory.”
In Sharma, the majority allowed an appeal by the Crown that restored the accused’s sentence of imprisonment, thereby affirming the constitutionality of provisions that restrict the availability of conditional sentences for certain Criminal Code offences — in the case at hand, for importing cocaine.
Lee takes issue with the majority’s view that it needs statistical and academic evidence showing that eliminating conditional sentencing orders contributes to the over-incarceration of Indigenous people. It should have been able to draw the inference, she says.
A 21-year-old Prince Edward Island man has been banned from driving for a year and sentenced to 10 days in prison after he was caught high behind the wheel.
Additionally, the man has been ordered to pay $2,600 in fines and surcharges, reports SaltWire.
Initially pulled over for speeding, the responding officer noted the smell of cannabis emanating from the vehicle and possible signs of impairment from the driver, who handed over an expired licence and vehicle registration.
The driver then failed a SoToxa roadside screening test, a device that uses a saliva sample to test for the presence of drugs. A blood sample also revealed the man had a blood-drug concentration of 20 nanograms (ng) of THC in one millilitre of blood, four times the legal limit of 5 ng.
“It can lead to people being arrested who are actually innocent,” Kyla Lee, a lawyer based in Vancouver, told The Canadian Press. “The technology just doesn’t exist yet to allow police to make a determination of impairment via drugs using physical equipment,” Lee added.
The wrongful arrest of a woman falsely accused of driving while high shines a light on the pitfalls of policing cannabis-impaired driving, say legal experts.
Pam Staples-Wilkinson was arrested in March 2021 after getting in a car accident and later failing a standard field sobriety test conducted by a Fredericton police officer.
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However, “serious problems” remain with how officers conduct the two physical tests, said Kyla Lee, a Vancouver defence lawyer who focuses on driving offences.
“Particularly in cases involving collisions, individuals exhibit symptoms when performing the physical tests that police make you do, that are consistent with being in a collision, but also consistent with the consumption of a drug,” she said.
Balance problems, fumbling and slurred speech can all be the symptoms of shock and head injury suffered in a collision.
But they can also be interpreted by a police officer as impairment, giving them grounds to pursue charges, Lee said.
More than six months after province-wide COVID-19 restrictions were lifted, new data from ICBC shows less than one third of fines issued for violating pandemic health orders have been paid. Kristen Robinson reports.
“Beyond restricting someone’s ability to purchase car insurance or renew their driver’s licence, the government really has no method of collecting unpaid fine revenue”
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“The law has no longer been in effect for quite sometime and so people don’t really see the point of it anymore.” – Kyla Lee
Introducing the all-new segment ‘Kyla’s Court’ on This is VANCOLOUR!
This is VANCOLOUR host Mo Amir sits down with Acumen Law Corp’s Kyla Lee to discuss what legal recourse exists for Anjali Appadurai, whose BC NDP party leadership campaign was disqualified by the BC NDP Party Executive.
