Michael Mines weighs in on Use of Force in police dog takedown case.

CTV News:

‘Was this level of force necessary?’: Man hospitalized after police-dog takedown in Nanaimo

VICTORIA — An unarmed man was sent to hospital after he was taken down by a police dog in Nanaimo, B.C., on Monday morning.

An off-duty officer was out with his police dog at around 9:20 a.m., when he saw a man walking into traffic and yelling at people, Nanaimo RCMP said.

The officer called for backup, then tried speaking with the man, who police believe was under the influence of drugs.

“[The officer] tried to enter into a dialogue to de-escalate the situation and it wasn’t working,” Const. Gary O’Brien told CTV News.

“He made terrible [death] threats towards the police officer and his dog.”

A video posted to Facebook shows the takedown near the intersection of the Trans-Canada Highway and Esplanade.

The video, taken after backup arrived, shows two officers and the dog standing in front of the man and another officer standing behind him, as several vehicles pass close by.

The man appears to be empty-handed when the dog lunges at him and tackles him to the ground. O’Brien confirmed the man was not armed.

The dog has the man’s arm in its jaws for roughly 17 seconds before its handler pulls it away and three other officers arrest him.

“Sometimes de-escalation does not work. And there has to be an intervention to take somebody under control because they pose a risk to not only the public, the police officers and the dog, but to themselves,” O’Brien said.

“This officer believed that if some intervention was not used, there would’ve been a significant altercation with this person. He was fully justified in deploying the police dog at that point.”

A Vancouver-based criminal defence lawyer isn’t so sure.

‘Was this level of force necessary?’

Attorney Michael Mines questions whether the use of force displayed in the video was excessive.

“If an officer is saying that they were threatened, that in and of itself doesn’t give them the justification to use the level of force that they did,” Mines told CTV News.

Mines acknowledged the video only shows a portion of what happened, leaving some questions unanswered.

“My question would be, ‘Why is it that these four officers had to use a fifth police officer… that’s the police dog, when presumably they’re all trained in effecting arrests in a less violent way?” Mines said.

The continuum of force is comprised of many tactics, including verbal commands, hand controls and tools such as Tasers. Tasers were not used during the interaction, police said.

“Using a police dog just to arrest somebody who’s not fleeing ought to be considered after all of these less intrusive types of methods are used,” Mines said.

“Was this level of force necessary and proportional to the situation?”

A Victoria-based defence lawyer agreed that’s the key question.

“It doesn’t seem unreasonable that some level of force would be used in order to stop the man from either getting into traffic and being hit or winding up in a confrontation with somebody else who’s on the street,” lawyer Michael Mulligan said.

“Bear in mind that there are often circumstances not captured by a one-minute video.”

Man treated for puncture wounds

The 47-year-old man who was arrested was treated for puncture wounds in hospital. O’Brien said a mental health assessment “was not necessary as his behaviour normalized throughout the day.”

The man has been released from police custody. RCMP are recommending one count of uttering threats.

The Independent Investigations Office of B.C., the province’s police watchdog, said it is not investigating as of Monday.

Meanwhile, the IIO is investigating the death of Jared Lowndes in Campbell River, B.C. RCMP shot and killed Lowndes in July, after boxing in his vehicle and sending a dog after him, which he fatally stabbed.

Link to CTV News Source Article

 

Ontario Court of Appeal Opens Door to House Arrest

On July 24, 2020 the Ontario Court of Appeal (“ONCA”) released a potentially monumental decision. In R v Sharma, 2020 ONCA 478, a majority of the panel of the Ontario Court of Appeal struck down portions of the Criminal Code which prevented judges from being able to grant a conditional sentence for many offences.

Conditional sentences are what are commonly known as house arrest sentences. Although they are legally a jail sentence, they allow the offender to serve the sentence in the community, routinely in a house arrest scenario. In the Criminal Code a conditional sentence is available if a judge finds that an appropriate sentence is a jail term that is less than two years, that serving the sentence in the community would not endanger the safety of the public and that there is no mandatory minimum jail term for the offence. The criminal code also sets out several offences and types of offences for which a conditional sentence may not be granted, even if all other conditions are satisfied. Among other offences these include any offence proceeded with by indictment with a maximum available sentence of 14 years or life as well as any offence with a maximum sentence of 10 years that involved the import, export, trafficking or production of drugs. In R v Sharma the ONCA struck down the provisions that prevented conditional sentences for those 2 categories of offences, resulting in conditional sentences to be available for them immediately.

The ONCA found that these sections unfairly discriminate against Aboriginal offenders based on their race as well as that they were arbitrary and overbroad in relation to their purpose and where therefore in violation of the Charter of Rights and Freedoms. That means those restrictions on conditional sentences can no longer form part of the law, for now. Certainly, this case will be appealed to the Supreme Court of Canada and a panel of justices there could overturn the decision of the ONCA and put those sections back into operation. Also, in theory, the federal government could potentially re-enact those provisions specifically stating that they are doing so despite the fact they recognize that the provisions violate the Charter of Rights and Freedoms, although that scenario is quite unlikely.

If the Supreme Court of Canada upholds the ONCA’s decision and adopts the ONCA’s reasoning that will likely also open doors for other accused persons to bring further challenges to some of the remaining restrictions on conditional sentences that are still in effect. Currently, the Criminal Code excludes a conditional sentence for the offences of prison breach, criminal harassment, sexual assault, motor vehicle theft, theft over $5000, being unlawfully in a dwelling house and several other offences if they are proceeded with by indictment. Because the ONCA decision finds that restricting the category of drug related offences from being eligible for a conditional sentence is arbitrary and overbroad in relation to their purpose, then it may logically follow that restricting these other specific offences may be arbitrary and overbroad in relation to their purpose and therefore a breach of the Charter of Rights and Freedoms potentially making conditional sentences available for those offences in the future.

 

https://www.canlii.org/en/on/onca/doc/2020/2020onca478/2020onca478.html?autocompleteStr=r%20v%20sharma%20onca&autocompletePos=2#document

 

Covid-19: Isolation and Domestic Violence

As we enter into the seventh week of isolation across the country many families are finding that social and physical isolation has had a greater impact on their relationships than they could ever have imagined. Tempers are flaring more than usual. Many people are finding themselves uncharacteristically (and often inexplicably) angry and frustrated, and the only people around to direct those emotions at are their family members. 

Since COVID-19 isolation and social distancing measures started in Canada many jurisdictions have seen a spike in domestic violence allegations (see Link 1 below). Many experts are predicting that when school resumes we are likely to also see a spike in allegations of violence against children by parents and caregivers. Even during the current isolation and social distancing measures, adult victims of family violence have the means to report the allegations to the police, but children who are being victimized may not have the opportunity to report what has happened until they are back in a school and speaking to other adults in positions of authority without the presence of their caregivers.

The long term and short-term effects of the current isolation and social distancing measures are not yet fully understood as these are unprecedented measures in modern times but generally there are some issues arising that experts can liken to other situations. 

One of the issues that people are dealing with is feelings of loss of control. We as a society are experiencing an unheard of curtailing of our personal freedoms. In addition, we are also in a time of great uncertainty, and for some people, fear regarding our personal health. There is little to nothing that people can do to change these circumstances and many people are feeling as though they suddenly have no control over what is happening with many aspects of their lives. Some people in situations like these will attempt to exert control over other people or exert hyper control over any area of their lives that they feel they do have some control over. People may try to take control back by controlling the lives of their intimate partners or children. Understandably this can cause previously unexperienced relationship conflict. In an attempt to take back some control, some people may attempt to take extreme measures to control any possible exposure to the novel coronavirus. If their intimate partner or children will not accede to their version of what is safe, this too can lead to serious conflicts that one party can see as vital to their survival and/or the survival of their family. It can also be a conflict that person sees as being over the only thing they can control about their current situation.   

Another issue that many Canadians are dealing with is loss of income and jobs. This is nothing new generally, but it may be a first for many Canadians, and it can be a compounding factor to the other stressors related to isolation and social distancing.   

The effects of isolation itself are well known and studied in other contexts. It is safe to say that the consensus is that social isolation is detrimental to humans. Isolation has been linked to anxiety, depression and cognitive difficulties amongst other issues. Some studies have also linked social isolation to changes in brain chemistry that can cause increases in aggression and fear (see link 2 below). 

In addition to this new plethora of challenges Canadians are facing, across all spectrums of age they are also consuming more alcohol since social distancing measures have come into place. Again, the effects of increased and excessive alcohol consumption are well known. At the time of intoxication it can lead to increased aggression, decreased inhibitions and impaired mental functioning. In the aftermath it can lead to increased feelings of anxiety and depression, especially for people already struggling with those types of issues. When increased alcohol is in the mix with the other issues mentioned above it can be a recipe for physical violence to break out, even for people in relationships where it has not been an issue previously.   

Even in otherwise prosocial and healthy family relationships this sudden, unexpected and serious change of circumstances is causing a great deal of conflict, sometimes even leading to instances of violence. For many families and relationships that were having struggles to begin with, these new stressors are pushing them over the limits of their capabilities to cope. When people feel themselves getting to the breaking point what makes matters even worse is that there is almost no where to get away any more. A person on the verge of losing their cool can’t walk out to door and go to a movie theater, restaurant or bar to cool down. They can’t go to a trusted friend’s house to vent, stay the night and calm down. They can go for a walk… and for many that will not last long enough to diffuse the situation. And for others who are convinced any amount of outdoor exposure is unsafe, even that may not seem like an option. 

If you or your family is experiencing difficulty with anger and conflict due to the effects of isolation there are many mental health professionals who are offering virtual services through video conference or other means. They can be accessed remotely and safely. Counselling can be one-on-one or as a family or couple. A quick on-line search will lead you to contact information for them. 

“Be kind, be calm, be safe” and feel empowered to seek help from professionals. These are unprecedented times with unprecedented challenges for our families and our mental health.

https://www.cbc.ca/news/politics/domestic-violence-rates-rising-due-to-covid19-1.5545851

https://www.sciencedaily.com/releases/2018/05/180517113856.htm

Sweeping Criminal Code Amendments now in Force

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

Offence Reclassification 

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

Preliminary Inquiries

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

Jury Selection

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

Intimate Partner Violence

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

Remote Court Appearances

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

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

No “Schneider loophole” in Canadian Sex Assault law

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Defending Sex Assault Cases in 2108: A Very Difficult Task

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A Practical Guide to the Aftermath of an Arrest

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

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

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

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

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

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

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

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

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

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

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