Decriminalize drunk driving?!

Last week, I wrote about the new, ‘tough’ impaired driving law. When I described the new law (the Immediate Roadside Prohibition Program), I gave a general description the impaired driving laws in BC. As a result, I went ‘easy’ on it; I didn’t describe this program for what it is… Put bluntly, it is BAD law.

As said last week, the new process/law allows police officers, rather than judges, to dole out the penalties for impaired driving: Drunk Driving Laws and Changes. This is true because the penalties now flow from the ‘fail’ reading on the screening device that is administrated (roadside) by the police officer (rather than the judge who sentences the offender after criminal charges have been laid and after the offender goes to court). I’ll explain…

Under the new law, alleged impaired driving offenders don’t typically go to court, as the new law/process allows police officers to deal with offenders on an expedited basis (on the side of the road).

Remember that, under the ‘old’ process (of dealing with impaired drivers under the Criminal Code), police had to bring the suspected impaired driver to the police station to blow into an approved breathalyser machine. From the results of the breathalyser (readings over 0.08), criminal charges would be laid against the impaired driver.

Keep in mind that the ‘old process’ required police officers to spend A LOT of time on each impaired driving investigation. Alternatively, the new program saves police A LOT of time, as the drunk driver doesn’t have to be taken the station for the breathalyser test (as the screening device is sufficient to penalize the impaired driver).

So, with the new process, less impaired drivers were (not surprisingly) taken to the police station to blow into the approved breathalyser machine and, as a result, less criminal charges were laid. Said a different way, less impaired drivers are dealt with under the Criminal Code or in criminal court.

To some people, this was great: impaired drivers were no longer “clogging” (hate that term) the courts. But, those people (who are rejoicing) might be missing the bigger picture…

Now, last week, I described how the new process doesn’t allow for an effective appeal process, which was the ruling in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639.

Because of that ruling, the B.C. Government made some changes to the law. Those changes still don’t seem to address the issue of an effective appeal process. But, that isn’t the only thing wrong with the new process…

Previously, I referred to the new law as being ‘tough’. Everyone does… This is the common public perception (and it’s the ‘SPIN’ that has been given to it).

But, are they actually ‘tough’? Short answer: no.

When you think of ‘tough’, you likely think about criminal records, thousands of dollars in fines, minimum 12 month driving prohibition and possible jail time. You may be surprised to know that these were the penalties that impaired drivers received after getting a criminal conviction under the ‘old’ process (s. 255 and 259 of the Criminal Code). Under the old process, impaired drivers were also required to submit to (driving) programs and received a 90 day driving prohibition (under provincial law): ADP Fact Sheet.

Under the Criminal Code, there were even minimum jail sentences to subsequent offenders (s. 255): Criminal Code.

So, what are the new ‘tough’ penalties? As said last week, the driver receives an automatic 90 day driving suspension, which is, really, the same as before, under the ‘old process’: IRP Penalties. The impaired drivers are also subject to fines and mandatory programs (under provincial law), which is, for the most part, the same as before (after an impaired driver was convicted in criminal court): IRP Penalty Fact Sheet.

You may be shocked, but consider that under the ‘new’ process, impaired drivers (no matter how drunk they are) can be back on the road after their 90 day prohibition expires! If they aren’t charged criminally (and don’t go to criminal court), there is no criminal record, no potential jail time, and no 12 month mandatory minimum driving prohibition.

As you can see, under the Criminal Code (the previously ‘used’ process), impaired driving was treated as a serious Criminal offence (which it is). Under the new program, impaired driving has been DECRIMINALIZED. I hate to say it, but impaired drivers are being ‘ticketed’ (albeit, with a very harsh ticket). Doesn’t sound too ‘tough’ to me…

Now, you may not agree with me. That is fine. The point of my column isn’t to convince you to ‘side with me’. Rather, it is intended to encourage readers to think about issues and conduct their own research (instead of blindly relying on someone else’s opinion, including my own).

My suggestion: think about and look into the issue. You may be surprised (and outraged) about what you learn.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 26, 2012: Decriminalizing drunk driving.

Drunk driving law and its changes

On June 15, 2012, B.C.’s ‘tough’ impaired driving laws came back (after being revised). But, will they stay? Time will tell.

B.C. has undergone some big changes in the past two years regarding its impaired driving laws. This topic is HUGE and COMPLEX; but, despite that, I will do my best summarize the changes and the resulting issues.

Here’s the story….

Under the previous law/regime, the process of dealing with a drunk driver was generally as follows: a police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a roadside screening device, which renders a pass, warn, or fail reading. If the driver blows a ‘fail’, then the driver is taken to the police station and is further submitted to an approved breathalyzer machine that measures the person’s blood-alcohol level.

If the person’s blood alcohol level is over 0.08 (when measured by the approved breathalyzer machine), then documents are forwarded from police to crown prosecutors who decide whether or not to proceed with criminal charges: Police don’t lay charges. If convicted, a judge then penalizes/sentences the drunk driver.

In addition to the likely criminal charges, those drivers who blow readings above 0.08 into the approved breathalyzer machine were also subject to a 90 day administrative driving prohibition (under provincial law): ADP Fact Sheet.

Under the ‘tough’ new law, which came in on September 20, 2010, the process was different. It was, put very simply, as follows: the police officer stops a vehicle and, upon having a reasonable suspicion that there is alcohol in the driver’s body, requests that the driver submit to/blow into a screening device. If the driver blows a ‘fail’ on the screening device, the driver receives an automatic 90 day driving suspension and is then subject to monetary penalties and mandatory programs, such as a responsible driving program and an ignition interlock device (to be installed into the person’s vehicle). The penalties/programs could cost the suspended driver over $4,000.00.

To clarify, under that new law, the stiff penalties flowed from the ‘fail’ reading on a screening device that was issued by the officer (and did not flow from a judge).

It was my understanding, too, that less criminal charges were being laid on drunk drivers (in court); instead, they were being dealt roadside by police under this new system. Of course, this was a faster way of dealing with drunk drivers.

Also, the process to challenge/review the ‘fail’ reading was quite minimal (and insufficient). This was significant.

On November 30, 2011, in Sivia v. British Columbia (Superintendent of Motor Vehicles), 2011 BCSC 1639. Mr. Justice Sigurdson ruled that the new law unreasonably infringes section 8 of the Charter, specifically for those people who blew a ‘fail’. Put simply, the Court said that, based on the significant penalties, the B.C. Government should have created a reasonable and meaningful review process where a driver can challenge the results of the screening device (after blowing a ‘fail’). As it stood, the law needed to be changed.

The B.C. Government chose not to appeal the decision and, instead, chose to amend the law. In the meantime, the ‘tough’ impaired driving law was suspended.

After the decision, the B.C. Justice Minister, Shirley Bond, said that only minor changes were needed to fix the law. She was seemingly correct because, based on Mr. Justice Sigurdson’s decision, you’d expect the B.C. Government to do one of three things: lower the penalties, change the review/appeal process, or do both.

According to peppered media reports, on June 15, 2012, the ‘tough’ impaired driving laws came back (after some revision). The revisions are: 1) police now have to tell drivers that they are entitled to a second blow test; 2) police must now ‘swear’ their reports that they submit; and 3) police must now submit documents confirming the accuracy of the screening devices: Drunk driving laws return after tweaking.

Police are already applying the amended law: Traffic police catch drunk driver 18 minutes after new drinking and driving law came into effect.

Justice Minister Shirley Bond says the changes go beyond what the Court was asking for.

But, do you really think they do?

I hate to sound cynical, but I don’t think the issues were adequately addressed. For one, people are seemingly still denied a full (or adequate) hearing. On that issue, I would have expected the B.C. Government to do more in creating a meaningful review process, such as allowing for police officers to be cross-examined on their evidence, rather than simply submitting ‘sworn’ documents.

Now, don’t get me wrong: lowering (or better yet, eliminating) drunk drivers on the road is an incredibly important and laudable goal. Drinking and driving is beyond stupid. But, Charter rights (and the related fair process) need to be respected as these Charter rights separate Canada from less ‘desirable’ countries.

These changes might be adequate and pass Charter scrutiny. Or they might not. Time will tell.

Whatever happens, I hope that the B.C. Government (regardless of political affiliation) starts taking its time with drafting legislation.

Bad laws waste time and money and both are a scarcity.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 19, 2012: Drunk driving laws changes.

Are fist fights legal?

Ah, fist fights: a method of resolving disputes by those who can’t use their brains. As ridiculous as they are, fist fights are common and they always attract a crowd. This article is intended to shed some light on the law that surrounds fist fighting.

Put simply, the rule is this: two people can fight, generally without it being subject to legal consequences, if the two people consent / agree to fight. This may sound odd, but people have (and should have) the freedom to choose whether or not to immaturely settle their disputes with fighting. The issue of ‘consent’ is tricky. Here are some of the wrinkles…

To start, there is no consent if an aggressor puts another person in a position in which they have to fight (such as being ‘backed into a corner’). So, if a ‘backed-up’ person swings at an aggressor, the fight is not consensual.

Consent also goes ‘out the window’ if either one of the people (who consented to fight) suffer non-trivial bodily harm, which basically means any injury worse than some bruises/minor abrasions.

Consent is also thrown out if it is obtained under fraud. For example, if someone enters a fight, not knowing that the other person has HIV, consent may be erased, as one person is exposed to a significant risk of bodily harm (that they didn’t know about). See R. v. Cuerrier, [1998] 2 S.C.R. 371.

Consent in a fight can also be withdrawn. So, if in the middle of a fight, one person says, “I’ve had enough”, then the other person has to respect that.

Also, consent (previously given) goes down the tube if someone is beating a ‘beaten’ person. Put another way, you can’t kick a person when they are down. Consent also goes out the window if someone uses a weapon.

When playing physical sports, like hockey or rugby, it is implied that participants give their consent to be hit and punched (within reasonable limits). That doesn’t mean, though, that someone can wind up and hit another player with a hockey stick or attack another player from behind.

To illustrate, consider Todd Bertuzzi’s assault on Steve Moore in the NHL. In that case, it was clear that |Moore had not consented to the fight, as he was punched from behind. If Moore had turned and faced Bertuzzi, then the result may have been much different (legally).

As you can see, consent in this context is tricky.

So, what happens when there is no consent for any of the reasons listed above? Well, as you can probably guess, there can be legal consequences.

To start, an aggressor can be sued by the victim. Depending on the injuries, the aggressor could end up paying big money.

Like an any personal injury case, an injured person could be entitled to his/her losses, which could include medical/dental expenses, pain and suffering, counselling expenses, loss of income (both past and future), as well as the cost of future medical care.

The aggressor could also receive criminal penalties, as well as a criminal record (for assault) that would impact a person’s ability to travel or get a job. You may be surprised to know that some McDonald’s restaurants now require a criminal record check.

Legal consequences aside, ‘weekend warriors’ need to recognize that they could kill someone. Despite what is depicted in television and movies, our bodies are fragile.

To illustrate, consider the case of R. v. Jobidon, [1991] 2 S.C.R. 714. In this case, Mr. Jobidon fought Mr. Haggart, who was celebrating his bachelor party, outside of a bar. Mr. Haggart was bigger and had trained as a boxer; but, despite that, Mr. Jobidon landed a (lucky?) punch on Mr. Haggart’s face. Mr. Jobidon then followed up with a few more punches. Mr. Haggart later died and Mr. Jobidon was convicted of manslaughter.

Bottom line: there are a lot of risks in fighting – so use your head (for something other than a punching bag).

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on June 12, 2012: Are fist fights legal?

Traffic tickets: big changes coming

There may be big changes coming to B.C.

Bill 52: Motor Vehicle Amendment Act received second reading in the B.C. Legislature last week and, surprisingly, there hasn’t been much media coverage on it.

Don’t let the lack of media attention stop you: I encourage you to read it. You can find it at the following link: Bill 52.

 

One of the biggest proposed changes in Bill 52 is an overhaul of the current process that is used to dispute traffic tickets.

Put simply, the proposed law takes traffic ticket disputes out of the Courts and creates administrative tribunals to deal with the disputes.

Currently, if you receive a traffic ticket from a police officer, you may choose to dispute the ticket and have the matter heard in Court. In Court, your case will be heard before a judicial figure (either a Judicial Justice of the Peace or a Provincial Court Judge) and the police officer has to present his/her case (that you committed a traffic offence). You are also given the opportunity to cross-examine the officer (on their memories and notes).

Under the proposed new law, a police officer gives you a ‘driving notice’. After that, you may choose to dispute it; but, you don’t go to Court. Instead, you will proceed to a ‘Resolution Conference’ and present your case in front of the ‘Driving Notice Review Board’ (an administrative tribunal). At this Resolution Conference, you will not have the opportunity to face and cross-examine your accuser (the police officer); the police officer does not attend. A Resolution Conference may take place over the telephone, in writing, or in person.

The B.C. government says the new changes will free up court time (reducing backlog) and police resources (i.e. police will no longer have to attend Court for traffic matters).

Reducing Court backlog is a great and laudable goal. But, are these proposed changes the best way to accomplish it?

Remember that we are fortunate enough to live in a country where we are innocent until proven guilty; this applies as much to traffic offences as it does to Criminal Code offences.

Police officers are humans and, of course, are capable of making errors. Sometimes, those errors translate into issuing tickets that are not appropriate.

Now consider: without police attending your Resolution Conference (to discuss/defend their memories and procedures), will you have a greater or lesser chance of being found guilty?

Also consider that the Courts are backlogged because they have been under-funded. As I discussed in a previous column, Justice system in crisis, the B.C. government has, over many years, reduced Court budgets and has not addressed the shortage of judges.

So, let me get this straight: rather than restoring budgets and putting money into the justice system, the plan is to create an alternative process that does not allow for the same procedural protections to those accused of motor vehicle offences? Alight then.

There are more proposed changes in Bill 52; some about how ICBC can charge additional premiums. I encourage you to read about it.

And don’t let me persuade you into believing that the law is bad: you may like the changes. Just think about it and research it for yourself.

And don’t blindly have confidence in your government to always pass good laws.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 15, 2012: Traffic tickets big changes coming.

Eyewitnesses are unreliable

Eyewitnesses who consciously lie on a witness stand are dangerous to our justice system. But, potentially even more dangerous, are those eyewitnesses who think that they are being truthful (and are able to convincingly tell their story), but are actually recalling false memories.

Eyewitness testimony/memories are inherently unreliable.

 

Many people think of their memories as video recordings; they think that their eyes are like cameras and their memory is like a videotape recording. To remember something, they simply rewind the tape and watch it again. This perception, though, is completely wrong.

Memories are never as clear or detailed as the actual events; in fact, they are often highly distorted. Our minds play tricks on us.

How you ask?

Well, to start, memories about colour and speed are often distorted. People tend to remember colours as being brighter and more saturated (than the actual perception). Also, when recalling vehicle speeds, people tend to overestimate slow speeds and to underestimate fast speeds.

Also, memories typically contain gaps and, as a result, our mind will actually reconstruct events and fill in those gaps using other memories.

Specific to legal matters, it has been found that eyewitnesses who speak to other witnesses will use the additional information (from other witnesses) to fill in and add to their own memories.

Also, when people repeatedly recall an event, accuracy of the memory generally drops; some details are dropped from earlier versions and some new details are added.

You may be asking, “So what?” Well, this is important because eyewitness testimony is often given more weight than it deserves and is responsible for many wrongful convictions (of innocent people).

Consider Mr. Guy Paul Morin, who was given a life sentence in 1992 for the 1984 murder and sexual assault of his young neighbour in Queensville, Ontario. Eyewitnesses in that trial provided false memories, which led to his wrongful conviction.

Eyewitnesses in the Morin case expected the police to arrest the correct person and there was a lot of public pressure to find someone (anyone) responsible for the murder. Not surprisingly, their memories were rearranged (in their mind) in such a way that it benefited the police and the Crown.

In 1995, DNA testing exonerated Mr. Morin.

Everyone is capable of creating false memories. I see it often when interviewing witnesses and, of course, my job is to sort that out.

As a further illustration, while in law school, a professor, demonstrating the faultiness of memory, played my class a short video that portrayed a crime. Immediately after the video, we were all instructed to write down everything that we observed. Resoundingly, none of us were completely correct. Several weeks later, we were told, again, to recall our memories regarding the video. Again, none of us were correct and, even worse, some details were either removed and added.

Bottom-line: caution needs to be taken when relying on someone’s memories.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 8, 2012: Eyewitnesses are unreliable.

Can you spot a liar?

Can you spot a liar? I don’t think you can.

When a witness testifies in court, he/she is being judged on whether or not their evidence makes sense and whether or not it is supported by other evidence. Obviously, if it makes sense and it is consistent with other evidence, the witness will appear more trustworthy.

 

Witnesses are also judged by other factors, such as their speech and their overall demeanour. These factors are often used (in everyday life and in the courtroom) to decide whether or not someone is a liar. However, these factors often have nothing to do with credibility.

So, what are some of the ‘tells’ of a liar? We have heard them all before: not maintaining eye contact, looking down, talking fast, appearing nervous, or becoming angry.

But, are these good indicators? Answer: absolutely not, which is why lawyers and judges know better than to assess credibility wholly based on demeanour.

To start, witnesses are generally resistant to testifying, as court is believed to be a nerve-racking experience. [Thank you, American television.] So, nervousness and fast talking are obviously not good indicators of lying.

How about maintaining eye-contact? Is that a good indicator? Well, recall that direct eye contact is generally seen as a sign of trustworthiness and honesty. But, for some people (including many aboriginals), direct eye contact is improper and disrespectful (and is therefore not a good indicator of honesty).

How about being polite or appearing ‘level-headed’? For the most part, someone who appears ‘level-headed’ (and does not get angry) will appear more credible. But, consider that the actions of someone in the courtroom (i.e. by a lawyer, juror, or member of the public) could elicit a negative response from a witness (with a different cultural background), making the witness appear dishonest.

For instance, for most Canadians, there is no real issue with pointing to something with the second finger. However, using the second finger is very disrespectful to (and could infuriate) someone from Italy.

Also, for Middle Eastern Arabs, it is disrespectful to expose the soles of shoes or to talk with a large amount of space/distance between each speaker. These actions could agitate such a witness.

Also know that Japanese, Chinese, Koreans, and Vietnamese use different phraseology depending on a person’s class or station in life. For example, a sentence in Japanese can be said in twelve different ways, depending on the social status/age of the person speaking and the person being spoken to. As a result, the English language can be unintentionally offensive to a witness (causing the witness to become irritable and appear less credible).

Obviously, it is crucial for lawyers to consider these cultural differences before trial.

Also, consider that some people, for whatever reason, are not able to clearly articulate their story. Does that mean that they are not as trustworthy or honest? Answer: of course not.

Bottom-line: there is no guaranteed way to spot a liar.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on May 1, 2012: Can you spot a liar?

Some shoplifters are treated unfairly

Shoplifting is a huge problem.

It costs Canadian retailers approximately $2.75 billion dollars per year, over 7 million dollars per day. Without shoplifting, retailers could create 100,000 new jobs. Customers pay prices that are approximately 20% higher to cover the cost of theft (i.e. surveillance and security costs). And it takes police approximately 2 hours to process a shoplifting charge.

Depending on the offender (i.e. the length of their criminal record), someone accused of shoplifting may be referred to a treatment/restorative justice program or may be criminally charged and even sent to prison.

Quite obviously, shoplifting is serious and the consequences can impact you for a lifetime.

But, as if the criminal consequences weren’t enough, many major stores/retailers threaten the shoplifter with civil consequences.

Many department/grocery stores send ‘demand letters’, demanding that the shoplifter pay money related to store security and surveillance. If a child is caught shoplifting, the demand letter will typically be sent to the parents.

The amount demanded is typically between $225.00 and $325.00. Retailers collect millions of dollars each year using these letters.

Demand letters contain threatening language, such as: “If you don’t pay, we will seek damages, as well as interest, legal fees, and other expenses as determined by the court.”

While intimidating, these letters are empty threats.

Consider D.C.B. v. Zellers Inc. (1996), 138 D.L.R. (4th) 309. In this case, the Plaintiff was sent a demand letter from Zellers, requesting $225.00 (after the Plaintiff’s child was caught shoplifting). The Plaintiff sent the $225.00 to Zellers, but then realized that she shouldn’t have paid it. She then sued Zellers to return the money and Zellers was ordered to pay back the money.

Also consider Southland Canada Inc. v. Zylike (1999), 256 A.R. 55. In this case, a 7-Eleven store attempted to get judgment against two people who were found guilty of shoplifting. The store claimed $250.00 from each person, claiming the cost of store security. The judge dismissed the claims.

You might be asking, “Do stores ever get awarded money after going to court?” Short answer: yes, but very rarely (and only in limited circumstances).

Consider Overwaitea Food Group v. Aida Sarroca (18 October 1996), Surrey Registry No. C34195, BCPC. Here, Overwaitea was awarded $2,490.69 to compensate for $125 in stolen cash and $2,356.69 in surveillance costs. While scary to consider, this was not a typical shoplifting case. Here, the theft was committed by a store employee over a period of time.

Also consider Hudson’s Bay Co. v. White (1997), 22 O.T.C. 366. Mr. White shoplifted gloves worth approx. $200.00, which were retrieved. The Bay claimed over $2000.00 in security-related costs and punitive damages (damages intended to punish). In the end, The Bay was (oddly) awarded $300.00 in punitive damages for trespass (Mr. White entered store for unauthorized purpose of shoplifting). While the Court did not explain the reason for the punitive damages, it did say that the cost of fighting crime was borne by everyone and could not be recovered on an individual basis in Small Claims Court.

Law aside, ask yourself this: if someone ‘owed’ you $300.00, would you spend $2,000 or more in legal fees to get it? Probably not, right? Quite frankly, that would be stupid.

So, while it is possible (and only slightly so) that the retailers could be successful in going to court, it would be an awfully bad business decision to do so, particularly as legal fees are not recoverable (from the Defendant) in B.C. Small Claims Court.

So, as you can see, demand letters are quite misleading: the law does not support their claims and taking the matter to court doesn’t make financial sense.

In light of the misleading nature of these letters, consider section 123(a) of the Business Practices and Consumer Protection Act, which states that a person attempting to collect a debt “must not supply any false or misleading information.”

It seems that some retailers need to be reminded to play by the rules.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 10, 2012: Shoplifters treated unfairly.

Diversion: some criminals get off lucky

Last week, I described Crown Counsel’s charge approval process. This week, I will discuss a type of ‘sentence’ that results BEFORE the charge approval process begins. This type of ‘sentence’ is referred to as ‘diversion’.

To begin, diversion is not exactly a ‘sentence’; it does not come after a finding of guilt like other ‘sentences’ (which occur after a trial or after a guilty plea in court). Diversion refers to the process of people being diverted away from the courts to an alternative option/program designed to address the root cause(s) of their criminal behaviour.

Diversion is a method to keep the ‘offender’ out of court; it is premised on the idea that entering the criminal justice system can do more harm than good. A one-time conviction can have a significantly negative impact on a person’s life – their job and travel can be hugely affected, even when only minor criminal offences occur.

In B.C., police and Crown Counsel are gatekeepers for diversion; a judge cannot invoke diversion.

Diversion is typically reserved for individuals with little or no criminal record and for relatively minor offences, such as minor fights/scuffles, minor theft/shoplifting, and mischief.

There are two forms of diversion: informal and formal.

Informal diversion occurs when a police officer does not forward any documents to Crown Counsel, preventing Crown from proceeding with their charge approval process. Instead, the police office gives the accused a ‘warning’. It is most often employed with young offenders who are returned to their parents. As you can imagine, a police officer’s strongly worded speech/cautionary tale can have a lasting impact.

In Kelowna, informal diversion can also occur when police refer offenders to Kelowna’s Restorative Justice Programs, either run through the John Howard Society (for adult offenders) or through the Okanagan Boys and Girls Club (for young offenders). At these Programs, the offenders address the causes of their criminal actions and discuss and repair the harm that they caused (to the victim, to themselves, to their family, and to the community).

Alternatively, formal diversion, also known as ‘alternative measures’, is offered by Crown Counsel. In formal diversion, the offender may have to participate in a treatment program, perform community service, and/or write an apology letter to the victim, all of which are designed to address anti-social behaviour.

Formal diversion requires the offender to accept responsibility for the offence and to consent to the diversion program. Also, Crown cannot proceed with formal diversion if Crown cannot get a conviction against that offender (i.e. if there was a lack of evidence). Diversion cannot be used as a net-widening process to capture more offenders who would not otherwise be prosecuted.

Formal diversion is further discussed in section 717 of the Criminal Code.

I understand that some people want ALL offenders taken to court and have the ‘book thrown at them’. However, that position is totally wrong.

Personally, I am most interested in having low crime rates and the rate of re-offending is SIGNIFICANTLY lower for those offenders who are given diversion versus those offenders who are taken to court. Also, diversion is much cheaper (costs less tax dollars/uses less resources) and is resolved (addresses the offence/offender) much sooner than the typical court process.

In A LOT of cases, it makes ZERO sense for the offender to go to court.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on April 3, 2012: Some criminals get off lucky.

Police do not lay criminal charges

Police have a lot of power – provided that they follow the rules, they can search your home, take a sample of your breath, or even apply deadly force. There is, however, something that they don’t do: lay charges.

Imagine this: you spot someone stealing your car and you call the police. Police attend, catch the offender, and take him away; but, they don’t lay the theft charge. In B.C., Crown Prosecutors (also known as Crown Counsel) lay charges.

After police arrest a person, they forward a package of documents relating to the offence to Crown Counsel. This package of documents contains a description of the alleged offence, a description of the offender (i.e. date of birth, criminal record, and address), witness names/statements, photographs, and any audio/video recordings.

When Crown Counsel get the package, they make a decision: charge the person with a crime or don’t charge the person with a crime. When deciding whether or not to lay charges, Crown ask themselves two questions:

  1. Is there a substantial likelihood of conviction? Here, Crown considers whether or not they are ‘pretty sure’ that they will get a conviction. To determine that question, Crown considers several factors, including whether or not evidence gathered by police will be admissible in court. Crown also considers the likelihood that some defence will succeed at trial. If Crown are ‘pretty sure’ that they will get a conviction, they ask themselves the next question.
  1. Is prosecuting the offender in the public interest? Here, Crown considers a few factors, including whether or not the ‘offender’ committed a genuine mistake or if there was some misunderstanding. Crown may not lay charges if the offence was trivial, did not result in any significant harm, or would merely result in an insignificant penalty.

If these two hurdles are cleared (i.e. there is a substantial likelihood of conviction and it is in the public interest to prosecute), then charges are laid and the alleged offender is brought to court to answer to the charges.

Consider the following example: a 12 year old child with no previous record steals a candy bar from a supermarket. In the circumstances, there is enough evidence to easily convict the child. But, it may not be in the public interest to prosecute – the public may not benefit from giving this young child a criminal record. So, rather than laying charges, Crown may refer the child to a restorative justice program, intended to help the child address their behaviour and repair the harm that they caused.

In some other provinces, like Ontario, police may lay charges. With that said, I suggest that the procedure in B.C. is better – Crown are in a better position (than police) to determine whether or not charges should be laid. Crown are more familiar with the rules of evidence/trial procedure and are better able to determine the likelihood of conviction.

Also note that, despite television portrayals, Crown Counsel are not merely interested in charging people, getting a conviction, and sending people to jail. They are actually interested in seeing that justice is done and in working for the public interest.

If you are further interested in Crown Counsel’s roles and duties, you should refer to the Crown Counsel Act or the Crown Counsel Policy Manual, both of which are available online and at your local courthouse library.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 27, 2012: Police don’t lay charges.

Lack of court funding benefits criminal offenders

People who are charged with criminal offences are entitled to be tried within a reasonable time, as required by section 11(b) of the Charter. If they aren’t, those alleged offenders can be ‘let off’ without standing trial, a situation that should have everyone concerned (and angry at their elected officials…and not at the courts).

To start, it is unfair and unreasonable for a person to have pending criminal charges for years – many, many years.

Imagine that you are charged with a criminal offence: it can happen to anyone. Maybe you forgot to pay for all your groceries when you left the supermarket and are charged with theft. Or, maybe you had a few drinks and, rather than calling a cab, you tried to sleep it off in your car. While sleeping, a police officer finds you in the driver seat and you’re charged with drunk driving.

Consider that if your criminal matter is pending for several years, you aren’t able to plan for family vacations or work trips, as a criminal record can prevent travel. Also, you’ll likely avoid making big purchases because, if convicted, you might go to jail or lose your job. In essence, you’re in a constant state of stress and limbo.

One of the leading cases on this issue is R. v. Askov, [1990] 2 S.C.R. 1199. In that case, three people were charged with conspiracy to commit extortion, among other related offences. They were charged in late 1983 and the trial was eventually scheduled to occur in late 1986. The delay was not attributable to any misconduct on the part of the Crown (I.e. not their fault). Instead, much of the delay was attributable to institutional problems, attributable to lack of funding. In the end, the charges against the individuals were stayed (dismissed) because the trial had been unreasonably delayed. After the case, thousands of other alleged offenders were ‘let off’ in Ontario for the same reason.

Alleged offenders are not just ‘let off’ for delay in Ontario – it happens in B.C., too.

In R. v. Hammer, 2011 BCPC 0234, Associate Chief Judge Brecknell granted a stay of proceedings to a defendant who was found guilty (in Prince George) of possessing cocaine for the purpose of trafficking. From the date that the individual was charged until the conclusion of the trial, 42.5 months had passed, 21.5 months were attributable to limitations on institutional resources (or, in other words, to lack of funding).

This isn’t in isolated incident.

Associate Chief Judge Brecknell noted that 59% of the pending adult criminal cases in B.C. are already over the completion guideline/standard that the court has set for itself. So, don’t be surprised if, in the near future, several alleged offenders are ‘let off’ without standing trial.

Some people blame the judges for failing in get trials heard within a reasonable time. But, the only party to blame is the Provincial Government.

Judges do not control the availability of court facilities/rooms and they do not control staffing resources such as sheriffs or clerks. The Provincial Government control these matters. The Government is also responsible for the appointment of a sufficient number of judges to hear cases within a reasonable time. For your information, the B.C. provincial court is the only provincial court in Canada that has fewer judges in 2011 than it did in 2005.

It is totally unacceptable that those who are alleged to have committed serious offences are never bought to trial/justice simply because of unduly long delays attributable to budget cuts and funding issues.

Now you know.

**The information contained in this column should not be treated by readers as legal advice and should not be relied on without detailed legal counsel being sought.

Originally posted on Castanet.net on March 20, 2012: Lack of funding benefits offenders.