Dearly Deported

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A student from Russia who has been studying in B.C. will find out on Wednesday if he will be ordered to leave Canada as a result of his recent criminal convictions. Vladislav Anautov, 23, plead guilty in Kamloops Provincial Court to an assault on his girlfriend that took place on February 27 in the off-campus apartment they shared together. The young man was free on Bail pending the outcome of his sentencing hearing – until the RCMP found his girlfriend hiding in his closet while checking to ensure he was abiding by the Court imposed conditions of his Bail (including a condition of having no contact with the victim). Anautov was promptly arrested and placed in custody. On Monday, April 20, 2015, he plead guilty to breaching the terms of his Bail order.

Since Anautov is in Canada on a student visa, an investigation was launched by the Canadian Border Services Agency to determine his immigration status. It has been reported that Vladislav will leave Canada on his own free will, which the Crown hopes to supplement with an Order from the Court. The Crown hopes to avoid having an immigration hearing, which could be both time consuming and costly.

A lot of people will read this article and wonder why the young woman is still in contact with her alleged abuser. You may be surprised to learn that this is not an uncommon occurrence in assault files. It is partially related to the fact that there is a common misconception about the charge process in Canada. Once you have called the police about an incident and they have become involved, the charge approval process is, for the most part, out of your hands. Individuals do not charge other individuals. Police agencies forward the results of their investigation to the charge approval sector of Crown Counsel, who will decide if there is enough evidence to charge the Accused (likelihood of conviction). That is why the style of cause in criminal proceedings heads the Queen against the Accused. For example:

R. v. John Smith à R stands for Regina, which represents our Queen (even though her name is Elizabeth. When we have a King, the R represents Rex).

We are a commonwealth country, and are sovereign to the (for now) Queen.

This is why domestic assault files are often difficult to prosecute. Again and again we see the complainant (the victim) wanting to withdraw from the process, or, completely refusing to participate in any part of said process that will lead to trouble for the Accused. It is very common to see an Accused person breach the terms of their Bail for this very reason – because both parties want to remain in contact.

 To sum it up: If you have been charged with assault stemming from a domestic incident, and have had a no-contact order put in place as a condition of your release, do not contact that person directly or indirectly. If they send you a text, do not respond to it. Do not answer their calls, or speak to them through a 3rd party – just call us.

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Hands Free (and neck) (and shoulder)

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Ian Pumphrey was back before the Yukon Courts earlier this week to represent himself in an Appeal launched by the Yukon Government.

In January of 2015, the Honourable Judge Luther found that Pumphrey wasn’t breaking the law by talking on the phone while driving, having his cellphone suspended between his ear and shoulder. It is, of course, illegal to drive while talking on your cellphone in the Yukon Territory – however, hands free devices are permitted. Since Mr. Pumphrey clearly was not using his hands to talk on the phone, he was not in violation of any regulations of the Motor Vehicle Act.

The Yukon Government appealed Judge Luther’s decision before a Supreme Court Judge, saying that in dismissing the ticket, he took the meaning of “hands free” too literally.

Mr. Pumphrey is of the opinion that the Government’s appeal is a waste of time and money – that would be better spent clarifying the legislation. He also stated that he will be seeking $15,000 in compensation from the Yukon Government in relation to all of the time he has spent working on the Appeal.

The Supreme Court Judge reserved decision on the matter.

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Justice Jam – B.C. Government puts a red light on the Province’s Traffic Court

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In a move that has lawyers and legal advocates cringing, the B.C. Government announced its plan to move ahead with the eradication of Traffic Court in the Provincial Court system. But what does it mean for you?

 As it stands today with the “old system”, any individual who is given a traffic citation (violation ticket) has the right to dispute the allegation in Court before a Provincial Court Judge. At their hearing, one may hire a lawyer to represent them, tender evidence, and present witnesses. It also provides an opportunity for the Accused person to confront their Accuser (in this case, the police officer(s) who issued the ticket) and cross examine them on their evidence. It is a perfect illustration of how the adversarial system – essential to the administration of justice in common law – works, and has worked over the past hundreds of years. Unfortunately, it is soon to be a thing of the past.

 The proposed new system involves diverting traffic matters to an adjudicatory body, similar to the one that handles Immediate Roadside Prohibitions. Here’s a breakdown of how the new system will work:

 1) Police will now issue tickets via an online “e-ticketing” system, which will also be used for payment

2) Disputes will first be handled by the Office of the Superintendent of Motor Vehicles. Offenders will be offered incentives to plead guilty (a reduced fine, time to pay, etc)

3) If you decide to proceed with your dispute, you will be directed to the Driving Notice Review Board. You will have a pre-hearing date where you will be required to submit any evidence you will be relying on to supplement your argument. Then, you will have your hearing before the Driving Notice Review Board (either in person, over the phone, or by writing). The Board will consider your evidence and the officer’s evidence and will render a final decision. Once that decision has been rendered, there is no opportunity for appeal or judicial review.  

What it boils down to is citizens being stripped of the right to their day in Court. The fact that there is no opportunity for review is one of the most frightening things – and it ties in perfectly with the Ministry of Justice’s explanation that the new process will encourage “system efficiencies”. Obviously if you cut out an entire part of the process, things will move at a quicker pace.

 All in all, the Government’s scheme to save money comes at a dire price for the citizens of British Columbia, and I can’t help but wonder – what are our rights worth?

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British Columbia in a Prohibition Sandwich

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This week a Kamloops case made headlines across British Columbia where a 76 year old man was sentenced to jail for growing 150 marijuana plants. The judge had no discretion in what to sentence him to – there is now a mandatory minimum of 6-months jail for anyone found guilty of possessing 6 to 199 marijuana plants.

The story can be found here:

http://www.theprovince.com/news/year+grandfather+gets+mandatory+month+jail+term+small+marijuana+grow/10938062/story.html

Coincidentally, I was in Nelson, B.C. this week for a trial and before my trial commenced, I witnesses a 56-yr old man get sentenced for the exact same offence, though it was for 110 plants. The man had a young family and serious health conditions. The judge’s hands were tied and the man got 6-months in the bucket. It was very sad to see.

We are in very strange times here in British Columbia and all of Canada when it comes to our drug laws. Above B.C. we recently saw Alaska decriminalize recreational cannabis, and the same has happened below us in Washington state. Other American states have recently followed suit. The Americans have realized that their “war on drugs” does little to deter usage.

But Canada, under the Federal Conservative Gov’t, continues to enact laws that take away the discretion from sentencing judges but imposing mandatory minimums. The results are what we saw in Kamloops and Nelson – families being torn apart, judges having no/limited discretion in how/what to sentence people to.

Mandatory minimum sentences do not work. It didn’t work in the U.S. and why our Federal Gov’t has implemented them, after seeing how they failed down South, I will never understand. I chalk it up to fear-mongering and vote-getting. But the human cost is severe.

I specialize in defending drug offences and represent people all over Metro Vancouver, Richmond, Surrey, and all regions of British Columbia. Being charged with a criminal offence is daunting and can effect one’s employment and ability to travel.

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