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.

No lawyers allowed?!

I am very disappointed.

Here is why…

Last week, Bill 52 passed 3rd reading in the B.C. Legislature (making it even closer to becoming law).

You may recall that, three weeks ago, I wrote a column about the B.C. Government’s new proposal on how to deal with traffic ticket disputes: Bill 52 – Big Changes Coming.

Bill 52 is completely misguided and may not pass constitutional scrutiny, which could end up costing B.C. taxpayers a lot of money if the process has to be changed.

Possibly more frustrating/disappointing than Bill 52 is Bill 44, which also passed 3rd reading last week. To me, Bill 44 is equally as…misguided.

I encourage you to read Bill 44 – The Civil Resolution and Tribunal Act at the following link: Bill 44.

So, what does Bill 44 propose?

Well, put simply, Bill 44 seeks to create “Civil Resolution Tribunals” that will run side-by-side with B.C. Courts. The Tribunals will have jurisdiction to hear and decide cases that fall within the jurisdiction of B.C. Small Claims Court. It is, according to the B.C. Government, intended to save money.

I understand that this may sound strange, so I’ll put it another way.

At present, if you have a dispute with someone (typically for claims under $25,000), you can go to Small Claims Court. Small Claims Court is much more informal, streamlined, and user-friendly (than traditional court), allowing people to represent themselves (which often occurs). With that said, people are still allowed to hire lawyers. The hearing/trial is presided over by a provincial court judge who is neutral and independent from government. This sounds like a good process, right?

Under Bill 44, parties could (if they consent, for now) have their potential Small Claims case taken away from the court system and heard in front of a Tribunal, a non-judicial group. In this process, the parties must represent themselves; lawyers are not allowed…

At section 20, Bill 44 states that, as its default position, lawyers are not allowed. If you want to hire a lawyer, you have to satisfy the Tribunal that a lawyer is required.

It isn’t hard to imagine that some people will be unfairly advantaged. For instance, some people are more familiar with presenting an argument, such as those people who work in business or insurance. Is this fair? I certainly don’t think so.

Another big problem with Bill 44 is that, in section 9, it specifically excludes the B.C. Government from being sued in this alternative Tribunal process. If this process is so great, then why is the Government specifically excluding itself from it?

It is disheartening that the B.C. Government did NOT consult with those groups who have the most expertise in this area when creating this Bill. As you can imagine, this Bill isn’t well supported (and is opposed) by some of those groups. Consider the media release from the Canadian Bar Association (B.C. Branch): CBA Media Release.

It is also disheartening that the B.C. Government pushed through this Bill (as well as Bill 52) BEFORE hearing the results of a report on B.C.’s shortcomings in the justice system.

For those who don’t know, in February 2012, the B.C. Government appointed a very well respected lawyer, Mr. Geoffrey Cowper, Q.C., to head a critical review (and draft a final report) of B.C. justice system: Justice Review. The Government would then use that report to make changes (and improve our system). The final report will be made to the Government in July 2012.

The Government’s decision to push through Bill 44 begs many questions…

Why create an alternative process in which people are not represented by lawyers and decisions are made by people without judicial training? Why funnel much needed resources away from the current court system and why not address the judge shortage? Why not just ‘tinker’ with the existing Small Claims Court process (if there are problems)? And why is the Government specifically excluded?

If you want to read the ‘debate’ that occurred during 3rd reading of Bill 44, scroll down to [1720] at the following link: Hansard. For the ‘debate’ that occurred during 3rd reading for Bill 52, scroll down to [1930] at the same link.

Whether or not you agree with the changes, I am hopeful that you will think about and consider the changes for yourself (without blindly relying to any particular source). I have done this and I am very disappointed in our Government.

**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 5, 2012: No lawyers allowed.

Thankfully, judges are appointed (and not elected)

In Canada, our judges are appointed, not elected. For that reason, we are very, very lucky.

Some people, however, think that judges should be elected. To those people: you are wrong.

Here is why…

Consider your typical political election; often, there are misrepresentation of facts, evasive answers, and frequent photo-ops. The message is often lost and elections often degrade into advertising campaigns.

I would like to think that those who are elected are the best people for the job; but, I am not always so sure.

For judges, this is system that exists in the United States of America. Hopeful judges have to campaign and their previous decisions are then scrutinized by the public, who, by large, have done little or no research to actually question those decisions.

So, it isn’t surprising that judges, like politicians, make decisions that they think will affect their chances of re-election.

This happens in politics all the time.

Consider the Federal Conservative’s decisions to create harsher sentences for crimes, despite argument and evidence that harsher sentences do NOT lower or deter crime. So, why are they doing it then? Answer: votes.

In America, when judges are elected, they, too, make decisions that will help them get re-elected into office. For instance, American judges often levy very strict (and often unjustified) sentences on offenders, so that they don’t appear lenient to the voting public.

I do not envy Americans for having that system.

For an illustration of what it is like to have elected judges, consider the following New York Times article from 2006, describing a system in which nearly three quarters of judges (who were elected) are not lawyers (and have little or no legal training/knowledge): In Tiny Courts of N.Y., Abuses of Law and Power.

Of course, the article’s material isn’t representative of all of America; but, it does provide a glimpse into the problem of using elections to find judges (i.e. that the best people for the job aren’t always elected).

In Canada, the process is very different. I will summarize it briefly.

First, lawyers who apply to become a judge must have been a lawyer for at least 10 years.

Screening committees then review the applicants based on several factors and make recommendations to the government (for appointment to the bench).

The factors that are considered include a keen intellect, proficiency in the law and in ethics, the ability to listen, the capacity to exercise sound judgment, a sense of consideration for others, patience, and a willingness to learn. An applicant’s courtesy, honesty, and humility are also considered, as well as their dedication to the public good, often demonstrated by pro bono work.

Selection committees will also interview lawyers and judges who have worked with or against the applicant. The committees are interested in the applicant’s interpersonal skills and whether or not an applicant engaged in ‘sharp’ conduct in his/her legal career.

If the applicant passes all the hurdles, then the government chooses among those applicants who have been recommended by the committees.

Also know that there are more applicants than openings (so the competition is fierce).

In P.E.I., there are openings approximately every 10 years. For federal court appointments across Canada, there may be 500 applicants a year, but only 50 to 60 appointments are made.

Once appointed, judges cannot easily be removed and are free to make decisions without influence from any powerful outside sources. Their decisions are reviewable by appellate courts, rather than the voting public.

I understand that some people think that judges’ decisions should be reviewable by the voting public, which would occur if judges were elected.

However, to do so would mean that judges’ decisions would pander to public opinion.

If judges pandered to public opinion, their decisions would be based on popularity, rather than legal principles. Judges would be hesitant to make correct (and unpopular) decisions, such as those that impact minority groups/interests.

It isn’t surprising that people sometimes get frustrated with a judge’s decision. When a judge makes a decision, one party will always be disappointed.

But, it is surprising, however, that the media sometimes does a poor job in accurately reporting the facts of a judge’s decision. This is a ‘special’ pet peeve of mine (to say it lightly).

My advice: get all the facts of a case before you criticize a judge’s decision. And be thankful that judges are appointed, not elected.

**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 29, 2012: Thankfully, judges are appointed.

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.

Class action lawsuits

Imagine this: you buy a new car and, shortly after, some electrical equipment fails from faulty wiring/poor design. It costs you $2,000.00 to fix it. You ask the car manufacturer to compensate you, but they refuse. You want to sue the manufacturer; but, it doesn’t make sense to hire a lawyer for a $2,000.00 claim (as legal costs would be more than $2,000.00). So, what do you do?

Well, you could consider starting a class action lawsuit.

A class action lawsuit is a lawsuit that groups people (plaintiffs) with a common claim against the same wrong-doer (defendant). Put another way, it groups several claims that would otherwise be separate.

Class actions aren’t particularly common, but they aren’t exceedingly rare, either.

Class actions often occur when several people have been harmed (physically and/or financially) by a manufactured good, such as a drug or a vehicle. Class actions are also common against governments, banks, and businesses, often for illegal service charges or misrepresentations.

The number of class actions often grows during economic downturns, particularly when it involves banking, financial services, pension, and/or employment.

Class actions are relatively new in Canada, so we take a lot of our cases and precedents from the United States.

Despite some public sentiment, these types of lawsuits benefit the public. To start, it is more cost effective (for the public) to have one court/judge deal with multiple like claims, rather than have multiple courts/judges deal with the same claim. Also, without class actions, a lot of people would be left without justice as legal costs would outweigh the amount of the claim (and, therefore, wouldn’t be pursued). Class actions also modify the behaviour of potential wrong-doers who might otherwise be tempted to ignore their public obligations (as lawsuits discourage bad behaviour).

There are advantages to the plaintiffs, too. For instance, there is safety in numbers: in a class action, a plaintiff is not alone in taking on a government or powerful company. As well, in a class action, a powerful defendant is more likely to play fair (and fairly discuss settlement).

Class actions are good for defendants, too. Defendants can avoid a ‘multiplicity’ of proceedings, meaning defendants don’t have to fight against multiple claims and can concentrate their efforts on a single claim. As well, defendants avoid inconsistent judgments if there is a single claim. Also, if there is settlement, all plaintiffs are bound to the agreement and the defendant does not have to negotiate individual claims.

Of course, despite the advantages, defendants generally resist class actions (and will spend a lot of money and time to fight against a class action from occurring). This isn’t surprising: in many cases, class actions end with the defendant paying A LOT of money.

I appreciate that I may not have convinced everyone that class actions are a good thing; some people may continue to think that class actions themselves (regardless of the claim) are frivolous. To those people: you are wrong.

Without class actions (and the security that comes with ‘not standing alone’), many people (and great, honourable claims) may never see justice.

In a speech recently delivered in Kamloops, The Right Honourable Chief Justice of Canada Beverley McLachlin, P.C. stated, “Our brains are hardwired for justice. To be required to accept that you can’t have justice is to give up a part of yourself as a human being.”

**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 17, 2012: Class action lawsuits.

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.

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.

Our justice system is in crisis!

Imagine being hurt, either in a car crash or in an assault. In the case of a car crash, you’d expect that you could sue the negligent driver and promptly get compensation for your losses. In the case of an assault, you’d expect that Crown Counsel could prosecute the offender. Those assumptions are reasonable. But, given budget cutbacks, don’t be surprised if things change…

In November 2011, one of our most learned, Chief Justice Robert J. Bauman of the Supreme Court of British Columbia, spoke about the dismantling of B.C.’s legal system. This column echoes Chief Justice Bauman’s words.

For some background, the judicial branch is one of the three branches of government, along with the legislative and executive branches, which are made up of, put simply, those bureaucrats and elected officials who debate, make, and administer laws and other government business. The judicial branch is comprised of the Canadian courts, deciding cases and interpreting laws, ensuring that justice is done.

In theory, all three sectors are equal. In reality, though, the judicial branch depends on the other branches for funding. Without proper funding, the justice system cannot adequately function.

The consequences of inadequate funding are serious and can be seen by looking at American courts, which have seen significant budget cuts.

In California, budget cuts of $350 million from county trial courts have resulted in almost 50% of its county trial courts becoming insolvent. The National Centre of State Courts reported that 3200 courthouses in America are eroded or deficient. An Ohio courthouse stopped accepting new cases because it could not afford to buy paper. The state of New Hampshire has suspended all civil cases for one year to deal with backlog, made worse by inadequate funding.

B.C. isn’t far behind.

Between 2008 and fiscal 2012/2013, the Court Services’ budget reduced by 10 per cent. Among the results is less court staff, which has terrible echoing effects.

Court clerks maintain the operation of a courtroom on behalf of the judge and perform several invaluable functions. If there are no court clerks, then courtrooms cannot operate and scheduled matters are adjourned.

To assist with the lack of court clerks, registry staff are juggled into courtrooms to work as clerks. This creates additional problems, though, as registries are also inadequately staffed.

Registry staff are responsible for several invaluable functions, including accepting and managing documents, processing orders, and assisting citizens with questions. In the last several years, shortages in registries have resulted in considerable delay, sometimes over six months, in processing orders. In the case of child custody matters, six months can feel like an eternity.

Also, in June 2011, the B.C. government cut approximately 30 sheriff positions, jeopardizing the safety and security of witnesses, lawyers, the public, and court staff/officials. Although the cuts were later reconsidered and sheriffs were restored, several criminal matters had to be adjourned, adding to the backlog of cases.

There is also a shortage of judges as appointments to the bench have not kept pace with retirements/departures. For example, in the Provincial Court, there has been a loss of more than 17 judges from 2005 to 2010, worsening the backlog, especially for criminal cases.

What is the result of a backlog of cases? Right now, in the case of civil lawsuits, such as personal injury or business-related lawsuits, it can mean significant delays (i.e. many years) in getting your case heard and attaining justice. In the case of criminal law, alleged offenders can be ‘let off’ without standing trial, a scenario which should have everyone concerned and a topic that I will discuss in greater detail next week.

The court/justice system is essential to our democratic society and efforts to balance the budget can never translate into taking money away from the courts. There is no fat to trim and any budget cuts slice into bone.

**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 13, 2012: Justice system in crisis.

When is panhandling illegal?

With summer coming, there will soon be more pedestrian traffic. With increased pedestrian traffic, there will inevitably be more ‘panhandling’. This column attempts to briefly describe when panhandling becomes illegal.

In 2004, the British Columbia Legislature enacted the Safe Streets Act, S.B.C. 2004, c. 75 (“SSA”). The legislation was intended to prohibit the following two forms for panhandling: 1) aggressive solicitation; and 2) captive audience solicitation.

‘Aggressive solicitation’ occurs when a reasonable person, who is being solicited, becomes concerned for his/her safety or security. The fine for this offence is $115.00.

To illustrate, aggressive solicitation may occur when a solicited person has their safe passage blocked, is being followed, is receiving rude comments or gestures, or is being subjected to physical/verbal threats (all during the solicitation).

‘Captive Audience Solicitation’ occurs when a person is solicited in one of the captive audience situations that are listed in section 3 of the SSA. For those who don’t know, a captive audience situation generally refers to when a person has no choice but to attend/stand in a particular location. The fine for this offence is $86.00.

For ease of reference (and without requiring readers to refer to section 3 the SSA), it can be illegal to solicit people who are waiting at a bus stop/taxi stand, riding on or getting off a bus, waiting to use or using a bank machine, waiting to use or using a public toilet, getting in or out of a vehicle (such as in a parking lot), or sitting inside a parked vehicle on a roadway, which is seemingly directed at “squeegee kids”.

With that being said, no captive audience solicitation offence occurs if the person soliciting is more than 5 meters away from the bank machine, bus stop, pay phone, or public toilet. Also, no offence occurs if the person soliciting within 5 meters of a bank machine has the express approval/acceptance of the person who owns the property where the bank machine is located.

Some groups are concerned that the SSA is bad law. For instance, the B.C. Civil Liberties Association expressed concerns that the SSA would be applied in an inappropriate manner, would unfairly target vulnerable groups, and would criminalize poverty and homelessness.

Challenges to this legislation, however, will not likely be successful.

 

 

In 2007, Ontario’s Safe Streets Act, which is virtually identical to B.C.’s SSA, was held to be valid by the Ontario Court of Appeal’s decision in R. v. Banks, 2007 ONCA 19. Also, in the 2002 B.C. Supreme Court decision of Federated Anti-Poverty Groups of B.C. v. Vancouver (City), 2002 BCSC 105, a bylaw that prohibits particular forms of panhandling (which is similar in substance to the SSA) was held to be valid.

In both cases, it was argued that the laws infringed various Charter rights. However, such arguments were unsuccessful. In the B.C. case, it was argued that the bylaw violates the freedom of expression (as well as discriminates against those living in poverty). While the Court held that panhandling is a form of expression used by those in poverty, panhandling that is aggressive or takes place in a captive audience situation does not fall within that freedom (and can be prohibited).

On the street, it has been reported that some police are discriminatory (against those living in poverty) in the law’s application. I don’t have any evidence of such discrimination, but such accusations are not that far-fetched; I can’t imagine this law being applied to Girl Guides selling cookies near a bus stop. It has also been reported that some police will issue tickets to panhandlers not technically breaking the law. As a result, it has been recommended by assistance groups (to those living in poverty) that panhandlers carry a copy of the SSA.

Whatever your position on this legislation, it behooves British Columbians to assist those living in poverty. Eventually, if we are fortunate, no one will need to panhandle to acquire the necessities of life.

**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 February 21, 2012: When is panhandling illegal?