Weighing the Evidence: Scales of Justice

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The scales of justice weighed in favour of an Accused woman earlier this week, when the Ontario Superior Court upheld her acquittal of impaired driving related charges in Ontario.

Kimberly McLachlan was acquitted of impaired driving in August 2015 after she succeeded in having evidence inadmissible at Trial – her breathalyzer readings, to be specific. This is known as a Charter application, as it seeks to have evidence excluded based on a breach of a Charter protected right.

Her application was based on the fact that when she taken to the police detachment, where she was required to provide a breathalyzer sample, the arresting officers’ had her stand on a scale so that they could have an accurate record of her weight.

Unfortunately, their attempt to be thorough actually triggered a breach of Ms. McLachlan’s section 8 under the Charter – providing protection against unreasonable search and seizure.

It is not part of standard procedure that the police would weigh a person who has been arrested on suspicion of impaired driving. The Judge confirmed that weighing a person is a violation similar in nature to taking bodily fluids (such as a urine or blood) without a warrant.

It is nuances like this – something seemingly harmless – that will catch the attention of a skilled criminal lawyer. Circumstances like these demonstrate the necessity of hiring a criminal lawyer who is familiar with Charter protected rights.

Impaired driving is a particularly complex offence, with a variety of available defences that must be reviewed in tandem with your unique circumstances. Contact our office today for a consultation that will allow us to come familiar with your situation.

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Sticks, Stones & Hate Crimes: When words can actually hurt you

Sticks, Stones & Hate Crimes: When words can actually hurt you

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freedom-of-speech

Offensive and shocking cellphone footage has led to criminal charges for a 49 year old man from Hope, B.C.

Karry Corbett received a $110 parking ticket, which initiated a heated exchange between Corbett and the parking enforcement officer. Ravi Dhura, of South Asian descent, was an innocent bystander who noticed the altercation between Corbett and the parking officer, and pulled out his cellphone to film the incident.

This led to Corbett turning his rage to Dhura, hurling obscene remarks directed at Dhura’s nationality, telling him to “go back to India” at one point, and then raising a fist and proclaiming “white power”. The comments made by Corbett aren’t difficult to interpret, which is clear by the reaction of the public. Comments on social media called for Corbett to be charged with a hate crime, but there were no such charges recommended by the RCMP.

“When did you come to Canada?” asked Corbett of Dhura, who replied that he was born a Canadian citizen. Corbett made many comments similar to that one – clearly indicated his belief that Mr. Dhura must have immigrated here at some point, alleging he was not Canadian born.

After a fairly brief review of the evidence, Crown Counsel approved 2 counts of assault, one count of uttering threats, and one count of causing a disturbance – charges that aren’t foreign to Mr. Corbett. According to RCMP he has a lengthy criminal record for similar offences, including 2 matters currently before the Courts.

Now, the public is wondering why, in the face of clear racism, there is no talk of prosecuting a hate crime. There has also been speculation on social media of how Corbett can be charged with 2 counts of assault when there was no physical contact.

The answer is easily drawn from the definition of Assault in the Criminal Code.

As you will see, the definition of assault is broad enough to include indirect force. Upon watching the video it is easy to see how Mr. Dhura, and the parking enforcement officer, would feel threatened.

As for the hate crime, there is no offence named “hate crime” in the Code, however, in this situation, Section 319 – Public Incitement of Hatred, would seem most fitting. Ultimately, Crown Counsel reviewed the available evidence, and determined that such charges would be inappropriate in Mr. Corbett’s circumstances. While some have indicated that charging Mr. Corbett for his comments infringes on his Constitutional right to Freedom of Speech, there are limitations. These limitations are set by our societal values, and rule of law that protect any and all individuals from being the victim of hateful speech.

Instances of hate propaganda and hateful speech in Metro Vancouver and surrounding communities such as Surrey, Richmond, Burnaby, Abbotsford and other Valley municipalities are steadily increasing. In January 2016, during an influx of Syrian Refugees settling in Canada, over 100 people were pepper sprayed by one disgruntled citizen at a gathering in Vancouver, B.C. RCMP indicated that kind of attack could constitute a hate crime.

Then, in August 2016, a Turkish speaking man was beaten in Vancouver for “speaking a foreign language” according to his attacker. RCMP confirmed they would be investigating that situation as a hate crime, however, it resulted in assault charges being laid against a 54 year old man.

In modern day society, social media has proven to be a useful tool in gauging the public’s tolerance for racism – this situation demonstrates that Mr. Corbett’s actions simply went too far. However, as our judicial system provides, Mr. Corbett is innocent until proven guilty.

win-lose

The issues that are raised in matters like these are complex and require the expertise of seasoned criminal lawyers – therefore if you, or anyone you know, face a situation similar to Mr. Corbett’s, contact our office today to discuss your next steps.

 

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Justice via Vigilante – Justice Denied, Reward Scanty

Justice via Vigilante – Justice Denied, Reward Scanty

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A vigilante group based out of Surrey, B.C., has been making headlines lately for their efforts in identifying and publicizing child predators to the media via video. It’s a spin-off of Dateline’s “To Catch a Predator”.

The videos, which are publicly posted to the group’s Facebook and Youtube accounts, display the real-time encounters had between members of the group and the individual that they have led there with false promises of sexual relations with an underage person, after chatting online about it.

The encounters are brief, lasting only a few minutes at most. The exchange between the two parties consists of accusations from one side, and flat out denials from the other. The subject of the Creep Catcher’s “investigation” attempts to shield his face before turning and running in the other direction, continually denying the allegations. What happens beyond that point is unknown.

From what I’ve seen, the public seems to be pleased with the endeavors of Creep Catchers. The videos certainly provide shock value – generally, the public does not play a role in, or even have the opportunity to witness the apprehension of a suspected pedophile – and for good reason.

The investigations that are conducted with respect to these offences are complex, calculated and require significant resources and manpower. The Integrated Child Exploitation Unit of the RCMP works with Interpol and police agencies around the world to gather, sort, and analyze information that advances their efforts in identifying, charging, and convicting individuals of child-related offences such as the Possession and Distribution of Child Pornography.

There are tactical strategies that require a high degree of skill and experience to be carried out effectively. The process of gathering evidence before an arrest and charge approval is paramount to the success of the investigation – in cases like these, proper identification of the suspect can take a significant amount of time. And this is where the work done by the RCMP and the work done by Creep Catchers become astoundingly diverse. Creep Catchers does not have the resources, funding, experience or skill to be meddling in these matters. There are several risks that come to mind:

1) Meeting these individuals in a public place, at a busy time of day, poses a serious risk to innocent bystanders in the area. Creep Catchers does not know if the individuals they are liaising with are violent or mentally ill. Innocent people could be caught in the cross-hairs of an encounter that quickly gets out of hand;

2) The police may already be conducting an investigation on an individual who has been sought out by Creep Catchers. This could lead to that entire investigation collapsing;

3) The very real possibility that they may wrongfully accuse someone of these crimes. The repercussions of being wrongfully blamed could be permanent. It is extremely difficult to exonerate someone on such allegations.

While their intentions may be good, the ends do not justify the means. This work is best left to the police.

Accessing, distributing, and making child pornography available are some of the most serious offences in the Criminal Code. There are new mandatory minimum jail sentences for these offences, details of which can be found here. Aside from a custodial sentence, someone convicted of one of these offences will almost definitely be required to register as a sex offender, which comes with lifelong consequences.

Our offices frequently handle cases with similar allegations. If you have been charged with one of these offences, contact our office to retain a criminal lawyer who can assist in navigating you through the criminal justice system with your best interests in mind.

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No Mobile While Mobile!

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Distracted driving. It’s a hot topic these days – it seems that technology is steadily advancing, while our common sense refuses to evolve. It’s an issue that, in some ways, exploded overnight. Ever since our provincial government implemented the Immediate Roadside Prohibition scheme, the focus has been centered on impaired driving. As the number of drunk driving related fatalities (supposedly) continues to fall as a result of the IRP system (in fact our Government now says that distracted driving is the leading cause of death on roadways in BC), lawmakers have narrowed in on distracted driving – to be specific, reanalyzing the financial and disciplinary consequences of being caught while talking on an electronic device while driving. Brace yourselves: the pain train is coming.

If you’ve been using your phone while driving, trying to send that one last text, or fumbling with your playlist while going unnoticed, all the while scanning intersections for police cruisers…well, today’s the day you might want to quit. As of June 1, 2016, fines handed out by police have increased from $167 to $368. Further, a driver will now receive 4 penalty points instead of 3 – and 4 points is all that’s required for a $175 penalty towards your insurance. So basically, on your first offence, it’ll cost you $543. If you get caught a second time within 12 months, that penalty will cost you $888, and you risk losing your license for 90 days (click here to be redirected to the ICBC penalty point premium information page).

It’s important to remember that although nearly every article you’ll read about this topic will use the term distracted driving, the real offence that is being described is the use of an electronic device while driving. You are still safe to drink your coffee and eat your bagel (for now) (and please do so responsibly). Please remember that driving with your cellphone wedged between your shoulder and ear isn’t a legal loophole – it almost worked for this guy, but he lost on appeal). Also make sure to check out this post which touches on the hypocrisy of one of RoadSafety’s policies.

It’s also important to remember that the tickets handed out for this offence are not criminal charges, rather, they are issued under the Motor Vehicle Act. As of right now, these violation tickets are still heard before a Provincial Court Judge within the jurisdiction of issue. The offices of Tarnow & Company and Jason D. Tarnow Law Corporation are both well equip with criminal lawyers to handle the trials of these matters, in any jurisdiction of the lower mainland, including but not limited to Richmond, Vancouver, Surrey, New Westminster, etc.

If you receive a ticket for talking on your cellphone while driving, or any other section of the Motor Vehicle Act, contact our office within 30 days (time limit for dispute) of receiving the ticket for advice regarding the best course of action. We also handle appeals of driving prohibitions that come as a result of an unsatisfactory driving record.

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Social Media and our Justice System

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I’m learning how to blog. Facebook I use mainly for social purposes. My Twitter account focuses on issues relating to my law practice. Nevertheless, social media is ever-expanding and it’s hard to find a person today who isn’t engaged in using social media in one way, or another.

If you follow me on Twitter, you know that yesterday I had a brief, heated dialogue with a media outlet that tweeted something quite untrue relating to the court case of a client of mine. For the record, the reporter who made the honest mistake (and I dobelieve it was an honest mistake) has since retracted the tweet and I’m sure the mistake will not be repeated. But I’m assuming the erroneous tweet was made in a rush to deliver some ‘breaking news’, but the facts were wrong before it was sent out. This is one of the risks associated with Twitter.

I can sympathize with what happened yesterday because I’ve been in that situation myself – I sent out tweets that later regret and wish I could take back (I deleted them asap, but I know many people have likely already seen the tweet). For myself, there was a steep learning curve when I started using Twitter and I learned a couple Golden Rules when using Twitter:

1) Make sure you are certain that what you are saying is true and factually correct, and

2) Don’t tweet when you are overly emotional (ie: pissed off, upset etc.).

Coincidentally, yesterday Chief Justice Beverly McLaughlin of the Supreme Court of Canada gave a speech to some university students about how Canada’s justice system needs to embrace and better understand the reach of social media. Today, reporters want to tweet information from inside courtrooms, jury trials have been jeopardized because jurors have been caught tweeting/googling cases they’re sitting on, and Facebook profiles have been places where evidence for criminal and civil trials have been gathered. These are some of the many issues that Madam Justice McLaughlin likely anticipates that the justice system will have to come to grips with as social media’s relevance expands in our society. I thought it was great that our country’s top judge has taken such a progressive approach to better understanding social media’s impact on our justice system – and I know it will have a trickle-down effect to courtrooms across Canada.

What are your thoughts on social media’s role in our justice system? Should judges tweet about cases they are deciding? What about Crown prosecutors? Would the public gain a better understanding about a particular case if these players were permitted to do so?

I do not know the answers to those questions… but if they do tweet, they should follow my two Golden Rules above.

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