Lessons from the Nude Beach

As I write this column, I recognize it’s an unusual topic… but, hear me out…

Vancouver has a lot of famous landmarks. And one of those landmarks is Wreck Beach, a clothing-optional beach.

I went to Wreck Beach a few weeks ago with a friend.

When he originally asked me to go, I was skeptical. At that point, I hadn’t been to any such beaches and I had some pre-conceived notions about clothing-optional beaches. Basically, I thought it would be uncomfortable.

But, my friend insisted that it had a beautiful view of the ocean, was very secluded, and that it’s full of nice people.

He convinced me. And so we went.

It was a Sunday in July and it is very busy. It wasn’t what I thought it would be, at all.

Everyone around us was friendly and talkative. And the view of the ocean was incredible, particularly at sunset. I was impressed.

Now, this may sound like I am giving a glowing endorsement of Wreck Beach. But, I’m not…

There are problems with Wreck Beach…

For some context of the problems, there are several rules at Wreck Beach, which include:

  1. Don’t stare or gawk;
  2. Don’t photograph; and
  3. Don’t video-record.

The rules of Wreck Beach can be seen on its website.

Now, I agree that the rules (in theory) seem fine. But, there are problems…

To start, the rules are enforced by the Regulars, the people who regularly go to Wreck Beach. And the rules aren’t enforced equally, which (at least to me) is unfair.

Here’s an example:

Now, you aren’t allowed to gawk or stare, right? Well, from speaking to some people, I learned that the “Don’t stare/gawk” rule applies LESS if you’re naked yourself. So, basically, the less clothing you are wearing, the more freedom you have to walk around the beach and look at nude sunbathers.

Is that fair? I don’t think so. If someone doesn’t want to be gawked at, is it better that the person doing the gawking is naked themselves? If anything, I would think it would be more uncomfortable…

Oddly enough, this made me think of our legal system.

In our legal system, we have some core principles. And one of those core principals is that everyone is equal before the law and that the laws apply to everyone, EQUALLY. So, it doesn’t matter who you are friends with, what societal position you have, or what you’re doing: the laws apply to you, period. And that’s a great thing.

Another core principle in our legal system is that laws have to be clear. This is a REQUIREMENT. And, it’s something that we should be proud of. Laws need to be written clearly so everyone knows what is required and expected of them. And, if they aren’t written clearly, then such laws are challenged in court and they are changed.

Remember the rules from Wreck Beach? They are incredibly vague!

Consider the rules regarding taking photographs.

My friend told me that he witnessed someone take a photograph of the ocean at sunset. And, even though the photograph didn’t have any sunbathers in it, the fellow taking the picture was still questioned and verbally attacked.

But, was this photograph really against the rules?

Surely the rule against photography is meant to protect the privacy of sunbathers. So, if there are no sunbathers in the photograph, then there is no problem, right?

Well, that’s the problem: we don’t know. Obviously, the rules could be clearer – and if they were, the fellow who took the ocean photograph could have avoided the verbal onslaught.

Now, it may sound like I am attacking Wreck Beach, but I’m not. It’s a beach…a nice beach, in fact. I am just using it to describe some core principles in our legal system…some core principles that every Canadian should be proud of.

Now go enjoy the sun.

**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.

Column originally posted on Castanet.net on July 23, 2013: Lessons from the Nude Beach

(Sad) future of B.C. politics

This recent provincial election was…interesting. And, historical for a number of reasons: some good, some bad.

First, it’s great that Christy Clark is the first woman to lead a B.C. political party to victory. That is no small feat, considering she was once 20 points behind in the polls.

Next, it was good to see that the pollsters aren’t always right (even though, in this case, I was hoping they were).

The argument that polls should be treated with caution is even stronger when considering that, just over a year ago, the Alberta Progressive Conservatives unexpectedly defeated the Wildrose party for a majority government.

The election was also historical for another big, BIG reason: several people were either fired, humiliated, or both for comments that they had made in the media.

AND, with that, a dangerous precedent was set: if you make an online comment, that comment can haunt you, sometimes more than a decade later.

Let’s go through the list…

  • Dayleen Van Ryswyck: a local NDP candidate made some ‘less than politically-correct comments’ on Castanet’s forums about Aboriginals and French Canadians. These comments were made approximately 4 years ago. After the comments were made public, Ms. Van Ryswyck resigned as a candidate for the NDP.
  • Mischa Popoff, a well-known business person and a former Tory candidate was fired from the BC Conservatives when it was discovered that, in March 2012, he wrote inappropriate remarks about women and the Missing Women Inquiry in Kelowna newspapers.
  • Ian Toothill, a former Vancouver-False Creek Conservative candidate, was fired when it was discovered that he made tweeted some “odd” comments about the Nazis and also tweeted that “men love sluts”.
  • Rob Herbert, a former Conservative candidate, was fired when he called Premier Christy Clark a “bitch” in a tweet.
  • Dr. Jane Shin, the medical doctor and Burnaby-Lougheed NDP candidate, was publically ridiculed when it was discovered that, 11 years ago, she made a derogatory remark about Chinese-Canadians on a video-game website.

Yes, I think that these people made some bad choices. But, I’m not trying to further chastise them: that’s been done a lot already and that’s not the point of this column…

The point of this column is to argue that a dangerous precedent has been set…

In this new age, almost everyone has an ‘online profile’, whether it is on Facebook, Twitter, YouTube, or whatever. And, on those websites, almost everyone writes comments or posts photographs. And, I’d be willing to bet that almost EVERYBODY, both young and old, regrets posting or writing something online.

Ask yourself this:

  • Have you ever taken an inappropriate photo of yourself and posted it online?
  • Have you ever argued (online) about a controversial topic and then later changed your mind on that particular topic?
  • Has someone ever taken a ‘less-than-professional’ photograph of you and posted it online?
  • Have you ever said something (online) to someone or about someone that you later regret?

If any of the above scenarios have occurred to you, then you’ve probably hoped that those ‘moments’ remain buried… But, as we’ve seen in the last election, they might not…

And, as we saw in the last election, anything you say online, even if it occurred many years earlier, is ‘fair game’.

So, what’s the downside of that? It may serve to keep ‘ill-suited’ candidates from political office, right?

Well, consider this: do you think respected business professionals or community-minded people will be MORE or LESS likely to enter politics, knowing that their previous online comments or photographs could return to HAUNT them?

Granted, not all great candidates will be ‘turned-away’ from politics because of this issue. But, if some otherwise great people are turned off by this, then who really loses? Obviously, it’s the public.

So, what’s the solution? Well, I don’t have one…

Granted, people should (absolutely) be very careful when posting online. But, who amongst us hasn’t said or done something that they regret?

I’m interested to see future elections, particularly how our lives are increasingly displayed on the Internet. It’ll be…interesting.

**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 28, 2013: (Sad) future of BC politics.

Politics and legal aid in BC

So, there’s an upcoming election and, if you’re like me, you’ve heard a lot of promises.

But, I haven’t heard much about the funding of B.C.’s justice system, which makes me wonder, “What the heck?!”

Now, I have previously indicated in columns that the courts are HORRENDOUSLY under-funded. You can read that column here: Justice system in crisis.

But, in addition to court budgets, legal aid in B.C. is also under-funded.

You may not have heard much about this topic, but there have been several protests by lawyers about the poor funding of legal aid: BC trial lawyers take stand.

So, what’s the problem? Well, the problem boils down to this: justice in B.C. is unattainable for a lot of people in British Columbia (because of their financial means) and legal aid does not “fill those gaps”.

You may not know a lot about legal aid, so here’s some information…

First of all, “legal aid” is basically government funded legal advice and service.

So, how do you get that government-funded lawyer to work for you?

Well, there are some hurdles that you need to jump over. First, your particular legal issue must be covered by legal aid.

Here are the most common situations when legal aid will be provided:

  1. You are charged with a criminal offence that could send you to jail (if convicted);
  2. You have a serious family law problem, which generally involves some issues involving a child’s safety or care; and
  3. You are facing immigration proceedings that may result in you being removed from Canada.

The next hurdle to jump over is Legal Aid’s financial guidelines. Basically, your net household income must be below a particular amount. Here’s an example: if you live alone, your net income must be equal to or less than $1,480.00/month.

And, you can’t have a lot of assets either. An intake legal assistant at Legal Aid will look at the value of your assets (to determine if you should receive legal aid). They’ll consider things like your cash, RRSPs, home, and car. With some exceptions, assets are considered disposable (i.e. able to be sold).

You may be thinking, “It sounds like legal aid covers a lot of different legal matters.” If you think that, consider this…

Legal aid doesn’t help you if you want to create a Will or Power of Attorney. It doesn’t help you if someone physically hurts you and you want to sue them for your losses. It doesn’t help you if someone refuses to pay you for services/work that you agreed to provide to them. It doesn’t help you if you are charged with a “typical” criminal offence, as the most common criminal offences don’t result in “jail time”.

You get the point: legal aid doesn’t provide assistance to most legal situations.

Then, there are the financial hurdles… A LOT of people make more than $1,480.00 (or approx. $17,700.00 net per year), but cannot reasonably afford a lawyer (or any other unexpected expense for that matter).

For your information, I frequently meet with and provide advice to people who cannot afford a lawyer and who do not qualify for legal aid. And, it can be heart wrenching.

Many of these people have great cases and civil claims (but cannot afford a lawyer to prosecute their claim). And, many of these people who are charged with criminal offences have legitimate defences (but cannot afford a lawyer to argue that defence).

Now, I take on some of these claims on a pro bono basis; but, obviously, I can’t take them all.

So, what do we do? Well, we need to ensure that legal aid is adequately funded, so that JUSTICE is attainable for more people.

Here are some wise words, said by the Right Honourable Chief Justice of Canada Beverley McLachlin, P.C.: “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.”

Something to think about on election day…

**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 30, 2013: Politics and legal aid in BC.

Bullied, raped student ends her life…

I’m angry…

By now, you’ve heard about the tragic death of Rehtaeh Parsons. But, in case you’ve been living under a rock, here’s the tragedy…

Rehtaeh, 17 and from Nova Scotia, was taken off of life support and died on April 7, 2013 following a suicide attempt. Rehtaeh had been allegedly raped by four boys. Apparently, there was even a photograph of the rape. She was also bullied relentlessly.

The rape was reported to police, but APPARENTLY there wasn’t enough evidence to lay charges. So, the bullying continued… until Rehtaeh eventually took steps to end her own life.

I am furious!

Obviously, I am furious at the “boys” who committed the rape.

And, after reading about the tragedy, I am also furious at the police.

Granted, I don’t have the full story; but, I have a REALLY hard time believing that they couldn’t get enough evidence together. I also have a hard time imagining that four boys could commit such a serious crime and completely cover it up, totally escaping criminal liability…

The Nova Scotia government is apparently devoting substantial resources to find out what happened. I hope that they find the individuals who are responsible…

And, I applaud Nova Scotia Justice Minister Ross Landry for taking these steps. But, there is something that he said that just doesn’t make sense….

He said that, in the wake of Rehtaeh’s death, he’s considering NEW LAWS when it comes to sexual assault and distribution of child pornography.

Maybe I am missing something here…

The laws surrounding sexual assault and child pornography aren’t gray or vague. I think we all know that rape and child pornography are illegal. And, there aren’t truck-wide holes in those laws.

So, I fail to see how different laws would have prevented this tragedy.

It seems pretty clear to me: the police couldn’t get enough evidence to lay criminal charges. That’s what they said, right?

Okay, so let’s assume that the police weren’t incompetent in investigating the crime. If they weren’t (and we’ll find this out soon), then obviously they needed further resources.

It makes me angry when politicians say that they are going to create new laws when the existing laws are just fine. The problem isn’t the laws – it’s the ENFORCEMENT of those laws.

So, here’s a better idea: how about devoting more resources to ensure that police are able to effectively investigate crime? Better training, more police, more resources, you name it…

Enough is enough.

**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 16, 2013: Bullied, raped student ends her life…

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.

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.

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.