Sued for spreading rumours?

We all have someone in our life who we don’t like or who we hate. If that person’s name comes up in conversation, we certainly don’t say anything nice about them…

 

We need to be careful, though, that we don’t spread rumours about that person because some rumours can get us sued.

You have probably heard of ‘defamation’. But, just in case you haven’t, here is the legal definition: defamation is a communication about a person that hurts that person’s reputation. If the communication is spoken, then the defamation is called ‘slander’. If the communication is written, it is called ‘libel’.

If you defame someone, then you can be sued. And, the other person often doesn’t even have to prove that he/she suffered a financial loss from your remarks; a court will actually presume that he/she suffered losses and will make you pay!

So, what kinds of things are considered defamation? What can you say and, alternatively, what can you not say?

Well, the law only protects your reputation. It does not protect you from personal insults or from hurt feelings. So, if a person publicly calls you a jerk, then you will probably have to ‘suck it up’.

But, if someone does any one of the following things, then there could be trouble (and a lawsuit):

  1. accuses you of committing a crime;
  2. accuses you of having a (serious) contagious disease; 
  3. makes negative comments about your business; or
  4. accuses you of cheating/adultery.

Also know that these types of comments/remarks must be made to someone else (and not just to the person that the statement is about). Otherwise, there is no lawsuit.

And, for your information, intentions are completely irrelevant. This means that it doesn’t matter whether or not you intended to harm another person’s reputation. If you make a defamatory statement, then you’re guilty, period (regardless of your intentions)!

You are probably thinking that you can’t make any negative comments, at all! This, of course, isn’t true. There are a few ‘defences’ to a defamation lawsuit.

One of the most common defences against a defamation lawsuit is ‘telling the truth’. This means that you can make a comment that hurts someone’s reputation as long as it is true. So, if you say that a particular person is accused of committing a crime (and it is actually true), then the other person’s defamation lawsuit is a ‘dead-end’.

Another big exception/defence is for journalists (which includes bloggers) to comment, even harshly, on matters of public interest (such as government issues). This exception/defence is called ‘fair comment’.

Another big exception/defence applies to job references. If a potential employer calls a person’s previous employer, then a claim for defamation cannot follow as long as the previous employer/reference acts honestly and without any bad intentions.

So, how common are defamation lawsuits? Answer: they’re rare. Most of the time, vicious rumours won’t lead to lawsuits. Reason: lawsuits are expensive, particularly defamation lawsuits. Defamation lawsuits MUST be commenced in Supreme Court (and cannot be commenced in the cheaper, more straightforward Small Claims Provincial Court).

Also know that the victim of defamation must sue the other person within two years of the defamation occurring – so don’t snooze!

As you can see, the law surrounding defamation tries to strike a balance between protecting your reputation and your freedom of expression. It’s a hard balance to strike.

And 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 November 13, 2012: Sued for spreading rumours?

Waivers: signing your life away!

At some point in your life, you have probably tried one of the following activities: skiing, bungee jumping, zip-lining, hand-gliding, river rafting, motorcycle riding (in a class), fitness training (in a program), or martial arts training (in a class).

If you’ve done these activities, you have probably also signed a waiver, which is a document relinquishing your right to sue the company if you suffer injury (even catastrophic injury) caused by the company’s failure to look after your safety.

Some people think that waivers are worth about as much as toilet paper. But, that couldn’t be further from the truth.

Consider this real world example: Loychuk v. Cougar Mountain Adventures Ltd., 2012 BCCA 122.

In August, 2007, two women went on a zip-line tour operated by Cougar Mountain Adventures Ltd., located at Whistler, BC.

Zip-lining involves being strapped into a harness and trolley and proceeding down a line from a higher to a lower elevation. Only one participate can travel on the line at one time (to avoid mid-air collisions between participants). A zip-tour guide is stationed at both the higher and lower elevation platforms. The guides communicate with each other via walkie-talkies to inform the other when it is safe for a participant to proceed down the line (ensuring the earlier participant has been safely removed from the line).

The rides at Whistler were over 1,500 feet long, 200 feet high, and boasted a 200 foot vertical drop. Customers could reach speeds of 100 km/hour.

One of the women was told to go down the line (by the guide). However, the other woman was still suspended on the line (and had not yet cleared the way). The women then collided with each other on the line, causing injury to both women.

The mid-air collision was entirely caused by a miscommunication between the tour guides and the only defence to Cougar Mountain was that both women, prior to riding the zip-line, signed a waiver releasing Cougar Mountain from liability.

In court, the waiver was found to be a complete defence and, despite the negligence of the guides/company, the women were not entitled to any money from Cougar Mountain.

For further illustration, here is a heinous example of when a waiver could be used a defence:

A bungee jump company knows that it should replace its bungee cords every five years; otherwise, the cords could break. But, each cable costs $50,000.00. So, instead of replacing the cable every five years, the company decides to use the cable for six years, saving some money. Now, imagine that the cord breaks and the customer falls, rendering him/her a quadriplegic (or worse).

Clearly, the company is negligent. And, without the wavier, the customer could have sued the company for pain and suffering, loss of income, and medical expenses (both past and future). But, with the waiver, the bungee company escapes being sued and, as a result, the injured customer will rely on social services for the rest of his/her life, costing taxpayers a pile of money.

Other jurisdictions don’t give such power to waivers. The United Kingdom government created the Unfair Contract Terms Act, which doesn’t allow people/companies to rely on waivers when they cause death or injury from their negligence (see section 2). Some states in America have similar law. That seems reasonable, right?

It’s not reasonable, though, that sports providers/companies are able to escape liability when they completely ‘screw up’ in keeping their customers safe.

So, how can we change this? Well, we need to pressure the government to create a law that limits the ability of companies to rely on waivers. And we need to do this now – and not wait until the next tragedy: woman falls 300 meters to her death in hand-gliding incident.

If companies were held (financially) responsible for their negligence, then you can bet that safety conditions would improve.

Lastly, I applaud two courageous Vancouver lawyers, Mr. J. Scott Stanley and Mr. Kevin Gourlay, for arguing for public safety in Loychuk v. Cougar Mountain Adventures Ltd. and for all their efforts to shine the light on the unfairness that currently exists in this area of law. Their efforts, which include providing other lawyers with research papers on this issue, represent another reason why lawyers deserve a better reputation.

**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 October 30, 2012: Waivers: signing your life away!

Lawyers deserve better reputation

There is no shortage of lawyer jokes. Here are a couple:

Q: Why won’t sharks attack lawyers?
A: Professional courtesy.

Q: What’s the difference between a jellyfish and a lawyer?
A: One’s a spineless, poisonous blob. The other is a form of sea life.

Do you think these jokes are funny? I don’t. They are extremely insulting. I take my job very seriously – and I am not alone. It is tragic that some lawyers make bad (and stupid) decisions – it gives other lawyers a bad name.

Here is a real-world example of a lawyer’s horrible decision:

Mr. Martin Wirick was a real estate lawyer in Vancouver and his major client was Mr. Tarsem Singh Gill, a developer. Gill, or one his companies, would purchase a property, redevelop it, and then sell it. Wirick, performing the real estate transfer, would receive the sale proceeds and, instead of paying off the mortgage and other financial charges on the title, he funneled the money to Gill or one of his companies (for reinvestment).

This is the biggest legal fraud in Canadian history and is discussed in more detail on the Law Society website.

The fraud started small: it started with a $20,000 shortfall in a single real estate transaction involving Gill. Gill requested that Wirick delay paying off the mortgage on the property until funds were available (and Wirick foolishly and nervously agreed). Not surprisingly, funds never came, forcing Wirick to commit other frauds to cover up the original mistake.

This scheme went undetected for several years and involved over 100 real estate transactions.

The total value of the frauds was nearly $40 million.

So, what happened with Mr. Wirick? He cooperated with the Law Society in their investigation and pled guilty to the criminal charges. In 2009, he was sentenced to 7 years in jail and ordered to pay $2 million. He lost everything…

You hear these stories and think lawyers are shady, right? That’s because you probably don’t hear about the good things that lawyers do…

You probably never heard that the Law Society paid nearly $40 million, fully compensating all those people who were hurt in the Wirick fraud. And every lawyer in B.C. now pays extra fees each year to help cover this loss.

You probably never hear about the many, many great lawyers who are involved in Access Pro-Bono and who donate their time for low-income earning people.

You probably never hear about how lawyer groups, such as the Canadian Bar Association (CBA), protest against the government creating law that is bad for Canadians. This occurred when the CBA protested against the Conservative Government when it hastily and sloppily made jail the primary tool to ‘fight crime’ (rather than focus on the root causes of crime): CBA’s Reasons to Oppose Bill C-10.

You probably never heard about Mr. Dugald Christie, a Vancouver lawyer who helped set up numerous pro-bono clinics across western Canada. He provided very cheap (and often free) legal services to low-income people and earned less than $30,000.00 per year from 1991 to 1999. He also challenged a B.C. law that infringed on the rights of low-income people.

In 2006, Mr. Christie was bicycling across Canada to raise awareness of the shortfalls of legal assistance programs. Sadly, on July 31, 2006, Mr. Christie was hit by a van during his trip and was killed.

Lawyers who make bad decisions exist: bad decision makers exist in every profession. But, I have confidence that those lawyers either get ground out of practice and leave the profession voluntarily (because they can’t keep clients) or they are removed from practice by the Law Society.

It might be time for people to re-evaluate their opinions on lawyers. Don’t fall victim to the stupid lawyer stereotypes.

**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 September 25, 2012: Lawyers deserve better reputation.

Fires and home insurance

Last I heard, over 1500 people have been evacuated in Peachland, B.C. because of the forest fire. I am one of those people…

After packing up, leaving, and watching the fire steadily creep down the mountain, I resolved that I wouldn’t write a column this week.

Today, as I have some time waiting to hear whether or not I can move back in and (more importantly) whether or not my home ‘survived’ the fire, I decided that I would write about an issue that will likely affect numerous people who have been evacuated.

The topic this week: when purchasing/transferring a home, who is responsible for the home insurance? The buyer or the seller?

Real estate sales are slow but of the 1500 people, I am willing to bet that some of the people had homes that were in the middle of being sold.

In the standard purchase contract (that is used by realtors and lawyers alike), there is a clause that states that the property and all items on the property will remain the risk of the seller until 12:01 am on the completion date. So, the seller should definitely insure the property until that time (at least).

After that time, the property and the included items will be at risk of the buyer (so the buyer needs to have insurance from then on).

Seems clear; but, in order to prevent any insurance “gaps”, the purchase contract should require the seller to insure the property up to the completion date (or until the sale has completed) and the buyer should arrange for insurance to run from the day BEFORE the completion date. This way, there is no doubt that the property is insured (should the unthinkable happen).

As well, it is important that the buyer purchase new home insurance and not just assume the seller’s home insurance. This is because the seller could have done something or misrepresented themselves in such a way that would cause the insurer to refuse to pay (if something horrible happens).

Also keep in mind that some wrinkles may exist with the transfer. For instance, a situation may arise in which the buyer is given possession by the seller before the sale is completed. Or, alternatively, the seller may be allowed to stay in possession of the property after the sale completed. In such cases, the buyer and seller should consult with their insurance company to arrange tenancy insurance or whatever the case may be.

With all that said, let’s hope no one loses their home…

**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 September 11, 2012: Fires and home insurance.

Be afraid: No-fault insurance & ICBC

There’s been some big news with ICBC lately: CEO Jon Schubert will be resigning and nearly 200 positions will be cut in the next two years.

That big news got me thinking about auto insurance and I want to share some information with you.

In B.C., there is a real danger that our auto insurance could change – for the worse – sometime in the future. The change is ‘no-fault auto insurance’.

So, what is ‘no-fault auto insurance’? I’ll explain…

Throughout North America, there are several different models of auto insurance. Those models can be divided into two systems:

  1. a liability/tort system; and
  2. a no-fault system.

The liability/tort system (which is what we have in BC) allows an innocent person to go to court and sue a reckless driver for losses (such as past and future income loss, past and future medical expenses, and pain and suffering) that the innocent party suffered in a motor vehicle crash.

In the no-fault system, innocent victims of car crashes cannot go to court and cannot sue for their losses. The reckless party is not brought to court. Instead, the innocent party is only entitled to pre-determined benefits that are decided BY THE INSURANCE COMPANY. It is a system similar to what occurs in Workers Compensation Board claims.

Quite frankly, no-fault auto insurance strips innocent victims of their right to sue and leaves them with whatever the insurance company is offering to pay, period. So, with that said, why have some provinces/states even experimented with no-fault auto insurance?

Well, insurance companies argue that no-fault insurance reduces premiums, making auto insurance cheaper. The premiums are supposed to be cheaper because the benefits that are paid out to innocent victims are significantly lower. Consider that in Ontario, when no-fault was introduced, benefits that were paid out to injured victims of car crashes were reduced by almost 50%.

So, with less (than fair) benefits being paid out, do premiums actually decrease? Are the savings actually passed on to the public? Answer: ABSOLUTELY NOT. In almost every province or state where no-fault insurance has been introduced, the premiums have (hugely) escalated.

Other than increased prices, no-fault insurance leads to an increase in crashes. Why does this happen? Well, under no-fault, reckless drivers are not sued and, as a result, are not held accountable for their actions. In Quebec, when no-fault insurance was introduced, fatal car crashes increased by nearly 10%.

Despite these negative effects, there was a battle in the mid-1990s in which the provincial government (to ICBC’s desire) was moving to change our auto insurance system. Fortunately, though, the change did not occur – there was a lot of opposition (as you can imagine).

Other provinces weren’t so lucky… Ontario introduced a no-fault system in the 1990s and, after seeing its failures, has reverted back to the tort system.

According to the Coalition Against No-Fault in British Columbia, there are over 200 organizations that are against no-fault insurance in B.C. Such groups include Mothers Against Drunk Driving, various seniors’ groups and student unions, the British Columbia Brain Injury Society, and the B.C. Trial Lawyers Association (who are keenly aware of your rights).

I wish I could go on, but this topic is HUGE – it is impossible to fully describe this issue in a short column.

But, in closing, I will say this: ICBC and other insurance companies are keenly aware that the term ‘no-fault’ conjures up negative feelings with consumers and with the public. So, if it comes up in the future (and hopefully it never will), look for insurance companies to use terms (for proposed policies) that conjure up ‘warmer, fuzzier’ feelings about such no-fault insurance.

BUT, don’t be fooled – you’ll still be paying more for less.

**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 August 21, 2012: Be afraid: No-fault insurance and ICBC.

Be careful in real estate contracts

This week’s column is related to real estate sales, which increase this time of year.

 

Nearly everyone will buy or sell real estate at some point in their life. And when doing that, they have to sign a purchase contract, the key document in a real estate transaction. The purchase contract governs the rights and responsibilities of each party. And believe it or not, those contracts, while seemingly straightforward, are full of complex issues and pitfalls.

And while it is the key document, it is often prepared by and signed in the presence of a realtor, as opposed to a lawyer (which can be problematic). While realtors have some skills in contract preparation, they don’t have the expertise that lawyers do in drafting contracts. As you can imagine, problems sometimes occur…

I’ll give you an example: very generally, the essential terms to a purchase contract are the ‘three Ps’: parties, price, and property. Other essential terms include completion date and the particulars of any vendor financing. If a contract is not certain on its essential terms, the contract is likely unenforceable. And, if essential terms are vague and then one party asks to clarify those essential terms, the whole deal could collapse entirely. Clearly, there is a lot at stake.

After signing the purchase contract, it is common for people to go to a lawyer (typically their real estate lawyer) and ask for a legal opinion on the contract. You know: just to make sure that everything is ‘OK’ and that the other party isn’t taking advantage of them.

While there are good intentions, it is TOO LATE. Once the contract is signed, it’s signed – it’s a done deal. Even if your lawyer sees something that is ‘bad’ for you, it’s too late to change it (without possibly suffering some serious expense and/or inconvenience).

So, what’s the alternative? Well, without venturing into the realm of telling you what to put in your contract, I’d suggest talking to your realtor and letting them know that it is important that you have your purchase contract reviewed by a lawyer. They will be able to assist you in making that happen.

Contrary to public sentiment/opinion, real estate law is VERY complicated and is fraught with A LOT of risk. Do yourself a favour: whether or not you decide to retain a lawyer to review the purchase contract, make sure that you take the signing/drafting of the contract very seriously. You have a lot to gain (and lose).

**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 July 31, 2012: Be careful in real estate contracts.

Batman, police, and lowering crime

I recently saw the new Batman movie, The Dark Knight Rises, and it got me thinking…

I won’t spoil the movie for you, but I will tell you that it starts with a totally ridiculous premise: that a ‘tough on crime’ approach is effective.

The movie starts out with how Gotham City’s crime has significant decreased (if not disappeared) because of some ‘tough on crime’ law, called the Dent Act. The movie lost me here….

The idea that ‘tough on crime’ laws actually decrease crime is totally backwards. A lot of research has been done on this issue and nothing indicates that ‘tough on crime’ laws actually work. In fact, it’s been shown that ‘tough on crime’ laws (that put more people in jail) actually lead to increase in crime.

As stated in a previous column, Severe Punishments, there was an analysis in 1999 of over 50 studies, (involving over 336,000 offenders), which showed that prison sentences do not decrease the rate of re-offending. Prison sentences actually produce an INCREASE in re-offending.

So, what does lower crime? Well, addressing poverty and drug/alcohol use would be a great start: How To Prevent Crime. But, besides that, CERTAINTY of being caught and punished is actually a better deterrent of crime than ‘tough on crime’ laws.

So, how do we get there? How do we increase the certainty of punishment/being caught?

Sadly, we don’t have Batman. But, we do have crime fighters: police.

The problem we have though, is that police investigations often leave the door open, allowing criminals to ‘get off’ (hate that term)… I’ll explain….

When a criminal defence lawyer gets a new file, he/she typically combs through it, looking for mistakes (during the investigation). If mistakes were made (that violated someone’s Charter rights), then the investigation could be compromised and charges could go ‘poof’ (up in smoke).

When combing through criminal files, I, too, have thought, “If the federal government was so concerned about getting criminals off the streets, why isn’t more money/time spent on ensuring that criminal investigations are seamless?”

Before you jump down my throat and call me a ‘police hater’, let me explain. I respect and honour police. They put their lives at risk every day to ensure that we are safe and they do their best to take a ‘bite out of crime’. We all owe them a debt. But, there is room for improvement.

Criminal law is complicated and police have rules to follow. Those rules preserve our right to be free from police coming within our homes (and rummaging about). These rules also protect us from being arrested for no reason and also provide us with access to a lawyer after we are ‘taken in’.

I want our police to know these rules, inside and out. And, I want them to be able to follow these rules and make those hard decisions every time, preventing criminals from ‘getting off’. I bet that police want the same thing…

Now, I have heard some (frustrated) police say that it is very easy for lawyers to criticize police decisions ‘made in the moment’ and that hindsight is 20/20. Yes, that might be so. But, not all police decisions are made under blazing gunfire. We expect our doctors, lawyers, nurses, and other skilled workers to make correct decisions in the ‘heat of the moment’… Mistakes will inevitably be made; we’re all human, but there’s room for improvement.

Some police officers seem to rarely make mistakes (which is fantastic). But, at the same time, we know that some police make mistakes… Whenever you hear that someone charged with a crime ‘got off’ through a ‘loophole’ or a ‘technicality’, it often means that a police officer didn’t follow the rules…

So, what can we do?

Well, one thing that has been tried is changing the laws, decreasing the hurdles that police have to jump over, which is what happened with impaired driving laws in BC: Decriminalizing Drunk Driving.

I have a better idea: how about provide police with more legal training? Really, who can say that more training/knowledge isn’t a good thing, whether for a police officer or for any other skilled professional? We have a saying at our office: “legal research is never a waste of time”.

Or, how about hire more officers so the existing officers aren’t stretched at the seams? If that happens, maybe officers will be better able to confer with each other about tough decisions.

And with all that said, I am proud of our officers and wouldn’t trade them for Batman.

**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 July 24, 2012: Batman, police, and lowering crime.

Jail, two-for-one credit, and politics

Some politicians have a low opinion of the public. At least that’s how it seems when you look at some of their decisions…

Let’s back up to February 2010.

At that time, the Federal Government’s Truth in Sentencing Act, also referred to as Bill C-25, came into effect. The change is reflected in section 719 of the Criminal Code.

Put simply, the Act limited the time that courts (judges) could assign to pre-trial custody, tossing out the two-for-one credit that had been applied in many Canadian courtrooms. Now, judges are ONLY allowed to give straight time (one-for-one credit) for time spent in pre-trial custody, except in EXCEPTIONAL circumstances, when a 1.5 for 1 credit could be given.

Here’s some background: sometimes offenders are held in custody (before trial) for an alleged crime. This happens more with serious crimes. If those offenders were found guilty, then (before February 2010) the judge (using his/her discretion) could grant the offender two-for-one credit (or some other amount) for that time spent in pre-trial custody.

Here is an example: if an offender is given two-for-one credit, then 2 months spent in pre-trial custody counts as 4 months spent in post-trial custody.

Two-for-one (or some other) credit was NOT automatically given by judges.

You may be asking, “What is the point of giving the extra credit?” Well, there are a few reasons.

For one, pre-trial custody is generally thought to be ‘harsher’. In pre-trial custody, the offender is housed in their cell for longer periods of time, sometimes 23 to 24 hours a day. Sometimes, the cell is being shared by several people… Also, in pre-trial, offenders typically don’t have access to rehabilitative programs. Basically, the nature of the confinement is worse.

There are a number of cases that discuss poor pre-trial custody conditions. Some of the more horrific cases involve prisoners sleeping on the floor, eating on their toilet, and getting skin diseases from the facility. In those cases, the judge ordered that additional credit be given to the offender.

Also, and more importantly, pre-trial custody is ‘dead-time’, meaning parole eligibility doesn’t apply to pre-trial custody. To explain, remember that an offender will often get released on parole after 2/3 of their sentence is served. But, with pre-trial custody, that time is not taken into consideration for parole. I discussed parole eligibility in a previous column: Parole Explained.

The bottom-line, though, was that (before the changes in 2010) judges had the power and discretion to decide whether or not to give credit (and how much credit to give) for time spent in custody. This was the way things were done in Canada for a long time.

So, with good reasons for giving credit for pre-trial custody and with the power to give credit in the hands of capable judges, why would the federal government want to mess with that?

Well, the federal government believed that most Canadians were NOT in favour of giving extra credit to persons convicted with criminal offences. The Feds also wanted to appear ‘tough on crime’ (and they want votes).

When rolling out the changes, the federal government provided several reasons in support, such as greater transparency in sentencing decisions and less clogging of the courts: Legislative Summary. Of course, there wasn’t any proof that any of these positive effects would occur (or have occurred).

Also, the federal government said that some lawyers were deliberately delaying proceedings so that their clients could be given two-for-one credit and thus shorter terms of imprisonment. This is a pretty serious accusation (with, of course, no proof).

The point is: the federal government changed something that didn’t need to be changed and tied the hands of judges who are more capable and qualified to decide when to grant credit for pre-trial custody than the government or the public.

In making these changes, the federal government relied on the public not understanding the process, as well as the public’s blind hatred of criminals. It doesn’t speak very highly of the politicians (or the public).

This is why I write these columns: I encourage everyone to research and dig beneath the surface. If it turns out that you agree with the government’s decisions, then great – at least you came to your own conclusion (and are not a political pawn).

Really, though, we should have seen that these changes were ‘political theatre’ from a mile away by just looking at the sensationalistic and ill-suited title for the law: Truth In Sentencing Act.

**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 17, 2012: Jail, two-for-one credit, and politics.

What the heck is going on in BC?

What the heck is going on with BC’s laws and justice system? There have been a lot of changes and a lot of them have been very BAD.

In case you haven’t heard of them, some of the horrendous changes/issues are:

  1. a shortage of judges and court registry staff;
  2. provincial budget cuts to the court/justice system that benefit criminal offenders;
  3. ‘not so tough’ drunk driving laws that don’t even have an adequate appeal process;
  4. Bill 44 (now passed 3rd reading), which takes legal disputes out of the existing court system; and
  5. Bill 52 (now passed 3rd reading), which drastically changes (in a bad way) the traffic dispute process in BC.

Some people blame the provincial government for these problems. I sure as heck do.

But, instead of broadly blaming the provincial government, some people point the finger directly at the current Attorney General of British Columbia (the “AG”), the Honourable Ms. Shirley Bond.

I appreciate that you may be thinking, “What is the AG?”

Well, for context, the Ministry of the AG is the provincial government department responsible for the oversight of BC’s justice system. It is headed by the AG, a member of the provincial cabinet.

The AG has A LOT of responsibilities. Basically, though, the AG is the legal advisor to the government, ensuring that the affairs (of the government) are in accordance with the law and advising (giving opinions to) the government on the laws that are being created. It is one of our top legal positions. I invite you to read the Attorney General Act.

With that said, you’d likely expect that the AG be a lawyer, right? Well, you’d be wrong.

The Honourable Shirley Bond is not a lawyer. Yes, she has over ten years of Cabinet experience and has even served as the Deputy Premier. But, she is not a lawyer.

Some people equate this situation to having a chief medical officer (of a hospital) who is not a doctor.

So, maybe not that surprising, the Hon. Ms. Bond’s position as the AG has been challenged.

A courageous citizen from Burnaby, Ms. Lesslie Askin, made a complaint to the Law Society of BC, arguing that the Hon. Ms. Bond lacks education and training to hold the AG office. Ms. Askin had concern about the Hon. Ms. Bond’s qualifications after BC did not oppose the federal government’s controversial (and ill-advised) ‘tough-on-crime’ legislation.

The Law Society took the issue seriously; but, decided that it did not have jurisdiction to say that the appointment was improper.

So, Ms. Askin took the matter to B.C. Supreme Court. Among other things, she requested an order from the Court that the appointment of the Hon. Shirley Bond was improper.

The Court, Madam Justice Stromberg-Stein, dismissed Ms. Askin’s complaint, indicating that the government CAN appoint a non-lawyer as the AG. The Court said that neither it nor the Law Society can tell the government who to appoint as the AG; to do otherwise would interfere with government’s power to appoint its ministers.

I invite you to read the decision here: Askin v. Law Society of B.C. and Attorney General of B.C.

Okay, so the government CAN appoint a non-lawyer to be the AG; there is no law against it and it’s even happened in the past… So, the next question is: SHOULD the government appoint a non-lawyer as the AG?

Admittedly, the Hon. Ms. Bond has government lawyers working for/under her. But, remember that those government lawyers are still under the supervision of a non-lawyer.

This isn’t a political issue: I am not asking you to ‘hate on’ the B.C. Liberals. And maybe you adore the Hon. Ms. Bond. She is undoubtedly accomplished. But, consider the big issue here: a non-lawyer is supposedly giving legal advice to the government. Do you see a problem?

So, what does the Hon. Shirley Bond say to the allegation that she should be a lawyer to be the AG? To the Georgia Straight (news source), she said, “I believe that non-lawyers serving at Attorney General bring a common sense approach that most British Columbians can appreciate.”

Now, I won’t comment personally on whether or not I agree with the Hon. Ms. Bond holding office as the AG: that isn’t my place and it isn’t the point of my article. As with other columns, I give you the information, ask some rhetorical questions, and invite you come to your own conclusions. But, I do have a problem with her comment: quite frankly, it is demeaning and it shows a lack of understanding of the legal profession and what lawyers can ‘bring to the table’.

**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 July 10, 2012: What the heck is going on?

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.