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.

Court delays drop significantly but province still dealing with judge shortages

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

Emily Lazatin

Posted: October 20, 2016 10:47am

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

– How to effectively address marijuana impaired driving;

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

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

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

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

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

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

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

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

For more information see this article:

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

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

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

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

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

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

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

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

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

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

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

Exception

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

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

Rewriting the Law on Restitution Orders

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

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

Inquiry by court

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

Adjournment

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

Form

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

Reasons

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

(Emphasis is mine.)

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

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

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

(Emphasis is mine.)

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

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

Consideration of statement

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

Evidence concerning victim admissible

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

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

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

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