In British Columbia, and across Canada, we pride ourselves in being known as multicultural, diverse, and tolerant. In particular, we encourage the celebration of our Aboriginal peoples’ heritage and culture – an ideation that has deep roots in our history. The issues surrounding the treatment our First Nations’ peoples are as delicate as they are primary; although we have made great strides over the past decade, we still have a long way to go before we declare success. An area that is often over looked by the general public, however, is how Aboriginal people are handled in our Judiciary system.
For example, Aboriginal people account for approximately 2.8% of the entire
Canadian population – a fairly small percentage. Therefore it may be surprising to learn that they account for a whopping 18%
of Canada’s federal inmates (according to the Correctional Service of Canada (“CSC”)). The CSC has stated that they are committed to developing a National Strategy that will specifically target the unique considerations that must be taken when dealing with Aboriginal offenders. They place specific importance on interventions for these offenders by developing and implementing care strategies for individuals suffering from substance abuse, and other addiction issues. Unfortunately, this likely means removing individuals from homes on reserves, which are often located in remote communities, without the resources to deal with the serious medical issues that accompany substance abuse problems. It is also an idea that is met with resistance from the First Nation’s people, which is understandable.
The lack of ways and means to address addiction issues early on often leads to “intervention” (i.e. the arrest and detainment of an Aboriginal offender) at the point where there is little that can be done - other than to have the individual slowly manoeuvre their way through our ever-clogged Court system. It is in our sophisticated and couth judicial system, that the unique needs of the Aboriginal offender are often neglected.
So by this point you’re probably wondering what justice-specific initiatives our Government is taking in order to properly deal with this issue. Well, there were a couple of legislative actions taken back in the 90’s, a few Directives from various commissions, and even an Annex or two. But it seems pretty obvious that these attempts can’t be labelled as anything other than futile.
Probably, though, the most noteworthy stride made by the Canadian Government towards respectfully handling the issue of Aboriginal offenders in our penal system, is the creation of Gladue Court.
Essentially, if you meet the specific requirements (Aboriginal Heritage being key, among others) you can have your case directed to Gladue Court, where the sentencing Judge will take into consideration the specific and unique circumstances of you being Aboriginal (discrimination, residential schools, etc).
The name of the Court is derived from the landmark 1999 Supreme Court of Canada case known as R. v. Gladue.
The main principle of the case is that other reasonable alternatives should always be considered prior to a custodial (jail) sentence. This could mean serving a sentence in the community, counselling, and rehabilitation in relation to drugs and alcohol abuse. If the sentencing Judge determines that a jail term is necessary due to public interest, he or she must still take the sentencing provisions of Gladue into account, which could result in a lighter custodial sentence.
There are a few flaws, though. One major pitfall is that an individual cannot be considered for Gladue Court if they are in custody. If you’ve been detained without Bail, or can’t obtain the necessary resources to make Bail, you’re considered ineligible. Another disadvantage is that the principles of Gladue are still improperly applied in many instances. It isn’t a system that is necessarily taken advantage of by those who may benefit from it, simply due to a lack of knowledge surrounding its existence.
We are fortunate enough to have a Gladue Court in Vancouver, British Columbia, which is available to residents in Richmond, New Westminster, Surrey, Delta, and so on. There are several other Gladue Courts located in Eastern Canada, for example, in Toronto, Ontario. It is likely that this Court will expand as the demand grows for services – and the demand can only grow, the system can only flourish, through knowledge and education.
If you have been charged with a criminal offence and would like to know if you meet the necessary prerequisites to be considered for Gladue Court, it is important to have an experienced and seasoned criminal defence lawyer there to assist with the process. Please do not hesitate to contact us at Tarnow and Company where we are proud to offer extensive knowledge surrounding Gladue Court procedures.
The details of the new medical marijuana regulations are out – and soon, so should the supplies from home growers. Authorities say that the stricter rules are put in place to protect public safety, but the growing public confusion and differing opinions seem to be working against the Canadian government’s plans.
Rolled out on June 10th and officially published on June 12th in the Canada Gazette, the new regulations no longer allow medical marijuana users to grow their own plants at home. The federal government will also cease the production and distribution of the substance, leaving only licensed growers as the only source for medical marijuana users. Jeffrey Reisman, a well-known criminal lawyer in Toronto
explains that one of the main factors that prompted the change in laws was that home growing was creating a lot of neighborhood crime. “In some cases we have organized crime operating grow ups, or targeting legal grow ups to steal product, which compromises the safety in a community”, says Reisman.
Minister of Health Leona Aglukkaq said in a statement that the stricter regulations will be imposed to “protect public safety” and “strengthen the safety of Canadian communities.” Health Canada backed Aglukkaq’s argument, claiming that letting individuals grow their own marijuana since the Marijuana Medical Access Program began about 12 years ago has affected public health, safety and security. Within this period, authorized medical marijuana users ballooned to 30,000 from the original 500, according to the department.
Apart from producing more marijuana than they can use, some growers have allegedly abused the program by selling illegally or causing fire and flood hazards due to unregulated operations. More serious threats include theft and other criminal acts that have been spurred by uncontrolled production and distribution of the product.
Meanwhile, the issue has also reignited a wider clamor to loosen Canada’s marijuana laws in general, with nearly 70 percent of polled individuals supporting marijuana legalization – or at least decriminalization of possession of small amounts. According to Forum Research, which gathered the opinion of more than 1,000 Canadians age 18 and older, only 15 percent think that marijuana regulations should remain unchanged, while 13 percent are in favor of even stricter penalties.
Another sector that has been vocal even before the medical marijuana program was launched is the medical community, which has reiterated time and again that there is not enough evidence of marijuana’s medical benefits.
Some politicians were also not spared in the crossfire. Liberal Party leader Justin Trudeau, in particular, earned mixed reactions when he professed not only his position in favor of legalizing marijuana – but also the fact that he had smoked marijuana at a dinner party. Roughly five years ago, Trudeau strongly opposed even just marijuana decriminalization.
Such “transformations” and developments are prompting even more people – politicians and average citizens alike – to speak out about the issue. While many eagerly await which side will prevail in the end, some observers are content enough seeing that marijuana laws are getting deeper, much more serious attention than ever.
Jeffrey Reisman is a well-respected Toronto Criminal lawyer, who focuses on all areas of criminal defence including assault cases, fraud, arson, burglary, murder and more. He is also an experienced bail hearing lawyer in Toronto
The Legal Aid crisis in B.C. is set to peak in early 2014, and criminal lawyers across the Province are preparing to halt services between the dates of February 17th, and March 30th of 2014. This means that Trials for offences ranging from impaired driving, shoplifting, assault, murder, you name it, that are currently scheduled for that time period, will be adjourned to later dates. What could cause such chaos and delay in our Court system? You guessed it – Provincial Government funding cuts. And it isn’t just a small percentage that lawyers would see taken off of their earnings during February and March – they wouldn’t be getting paid. At all.
The legal aid system in B.C. has taken blow after blow over the last 10 years, making it increasingly difficult for those with a low income to have access to sound legal advice. After the Legal Services Society recently announced that the criminal tariff faced a $2.5 million dollar deficit (driven by Stephen Harper’s new Safe Streets and Communities Act I might add, along with other Federal political initiatives), they declared that they had no choice but to deny lawyers payment for their services in the aforementioned time frame.
This is a serious issue. Our Court system is already severely backlogged, and this 6 week long hiatus is only going to going to cause catastrophic scheduling conflicts. Those scheduling conflicts could lead to the frailties in the administration of justice in our Province.
While the Legal Services Society is still set to meet with the Attorney General of B.C. to discuss these ever-growing problems, we are unlikely to see a resolution in the near future. Where there is no money in the budget, there can be no service provided.
Legal Aid is an essential component of our justice system; it protects the most vulnerable in our society. It is clear that British Columbia’s Provincial government doesn’t have societies best interests in mind, and shows no signs of having a change of heart.
As mentioned in previous posts on our site, David Tarnow is qualified to engage in the practice of law in the Territory of the Yukon. Over the past year, Mr. Tarnow has successfully argued a number of cases in the Territorial Court. More often than not, the cases have either resulted in an acquittal of the Accused, or have been resolved by way of a Stay of Proceedings – both of which are optimal results for the Defence in any criminal case.
Since the beginning of September 2013, Mr. Tarnow has been conducting a Jury Trial in Yukon’s Supreme Court, in which our client has been charged with the Attempted Murder of a Police Officer. It goes without saying that this charge is one of most serious offences in the Criminal Code of Canada
. The Whitehorse Star, a local paper in Whitehorse, Yukon, released an article surrounding the circumstances of the alleged offence and the Trial, and can be read here: http://www.whitehorsestar.com/archive/story/lawyer-renews-his-suspicions-of-investigations-handling/
The Jury is expected to begin their deliberations shortly. Make sure to check back to our site to keep up to date with the outcome of the case.
If you’re not a lawyer or legal professional, the term “natural justice” probably sounds foreign.
In simple terms, natural justice is defined as “procedural fairness ensuring a fair decision is reached by an objective decision maker”. In our Canadian criminal judicial system, this requires all individuals facing a matter before the Courts to be heard by a Judge (or a judge/jury). Judge’s serve as unbiased and impartial decision makers in our Court system’s adversarial process. The adversarial process requires the role of the Judge, the Crown (Prosecutors) and the Defence. Without any one of these 3, there can be no adversarial process, and thus, no natural justice.
So what happens when individuals are stripped of their right to natural justice? What could we possibly call a system put into place that allows these relentless and grim punishments, without giving the Accused person an adequate opportunity to fight their case and defend themselves? Well in British Columbia, we call that the Immediate Roadside Prohibition (IRP) scheme.
When you receive an IRP in British Columbia, you are given the opportunity to appeal your decision to the Office of the Superintendent of Motor Vehicles (OSMV). You have the choice of requesting a written review ($100) or an oral review ($200). The OSMV will be provided the necessary materials from ICBC, originating from the Police officer who issued your IRP. In these materials, there will be a Report to Superintendent (RTS). This 1-page RTS is all of the information the Adjudicator will need when considering your case. There is no opportunity whatsoever for the Accused person to 'test' the evidence by way of cross-examination. Cross-examination has been a tenet of our common-law legal tradition for hundreds of years. Today, British Columbia's provincial government has removed it entirely. Think about this: When you get a parking ticket, or speeding ticket you get to have your 'day in court' and have a REAL trial - but not with the IRP regime. It's all done on paper... and it's a disgrace.
Now, you may be wondering, who are these Adjudicators?
Well, Adjudicators are basically the “in house” judges for the OSMV. They are the ones who receive and review both the RTS from the Police, and your written (or oral) submissions. The qualifications and credentials of the Adjudicators are unknown. The hiring process is also unknown. The process they use to determine their decision is also largely unknown. It can be speculated, however, that very few of these Adjudcators actually have the qualifications to interpret and apply the law to various circumstances. This is evident with a very recent ruling on a Judicial Review (an option to individuals who wish to have a Supreme Court Judge review the ruling of the Adjudicator). The link to that decision is:http://www.courts.gov.bc.ca/jdb-txt/SC/13/00/2013BCSC0047.htm
Those who follow me on Twitter and/or follow this blog, know about my keen interest in how the media covers legal matters - primarily criminal legal matters. Over my 5 years of practice, it's been a sort of love/hate relationship. In sum, I love a balanced article that fairly depicts what happened inside of court on that day. I loathe inaccurate, biased writing which has a primary motive of selling newspapers while sacrificing the truth.
This morning, I see my friends at The Province have done the latter - again.
Yes, I represent Ms. Camille Cacnio and she is facing a new charge of breaching a condition of her Probation Order. While I will not comment on the specifics of the allegation or her defence, I will say that it is a fundamental principle of our justice system that the presumption of innocence presides right up until a judge determines otherwise.
Yesterday, I attended Ms. Cacnio's first court appearance on the new allegation. As I predicted, members of the media were there with their cameramen in tow, hoping to get their 'shot' of Ms. Cacnio walking to and from the courthouse, and to pepper her with questions etc etc.
I went on her behalf, told her to stay away because the media storm has become quite predictable, and sure enough, I was right.
The court appearance was brief and rather uneventful, much to the dismay of a few reporters and cameramen in attendance
But that wasn't enough for media... they needed their pound of flesh before the day was through.
So back to The Province headquarters, somebody clever 'journalist' figured that they would publish an article about Ms. Cacnio's old and current case, and complement it with the most inflammatory photo of Ms. Cacnio and post it online, ASAP.
Before 11am, an article was up on the Province website. Within minutes, the Times Colonist posted the same article on their website:
There ya have it. The media proudly got their pound of flesh. They got to take another shot at Ms. Cacnio, the girl who they feel got off 'too easy'.
But wait a second...something looks off...... THE GIRL IN THE PICTURE IS NOT MS. CACNIO!!!!
In a rush to post this "breaking news story", The Province newspaper put in a picture of a DIFFERENT person. While they may be able to take the photo off their digital version of the article, it doesn't change the fact that THOUSANDS of printed copies are in circulation today. See Page A2 of Jan. 15, 2013. Today's paper, inside of the cover page. For a breach charge. Seriously.
Shame on you, The Province newspaper. In a rush to be 'first' to publish a news story (which you weren't - 24 Hrs beat you to it), you attached the image of an unknown person to a "news" story and misled your colleagues at the Times Colonist into thinking your pieces are reliable.
However, I already know what many others in British Columbia know - you are not a reliable, unbiased source of real news.
Stick to what you're good at.... covering the Canucks.
I've written about this topic in the past, but so much has changed in the last few months.... here are some thoughts...
Today, it seems as though every component of the criminal justice system is on Twitter. Fine, I concede that I have yet to see a judge who tweets, but everyone else seems to. British Columbia's Attorney General, Shirley Bond (@shirleybond), has a very active Twitter account - and she leads the Crown prosecutors in the province. However, I have yet to come across an individual Crown prosecutor with an account.... I am guessing it may be contrary to Gov't policy.
I see more and more Vancouver defence lawyers creating Twitter accounts, which is great (I think I was the first). They don't - and I don't - comment on our own cases while they are before the courts, as tempting as it is....
The Law Society of British Columbia even has a Twitter account (@LawSocietyofBC).
Police Departments are extensively active in Twitter. This past weekend in Washington, DC the PG County police department live-tweeted police incidents at the Washington Redskins NFL game, with the hashtag #PGPGtweetalong. It was real time arrests, obviously with some humour inserted. But it was engaging to those who followed. ( http://www.washingtonpost.com/blogs/dc-sports-bog/wp/2012/12/04/pg-county-police-department-live-tweets-arrests-at-redskins-game/ )
I'm intrigued with how Twitter begins to evolve in the criminal justice field. Most recently, court reporters have been permitted to live-tweet inside of a courtroom and I think that's great. I'm still of the opinion that cameras inside our courtrooms would be too disruptive to a trial.
I want to also mention the B.C. Civil Liberties Association's new "Arrest App", that you can download for free on your smartphone, and learn a thing or two about your rights and/or how to deal with police.
Do you like or dislike Twitter's expanding presence in criminal justice?
As Vancouverites, we’re lucky to live in a considerably safe community. But, as we all know, Vancouver does have a dark side. There are areas which have been socially designated as being “dangerous” – the Downtown East Side in Vancouver and the district of Whalley in Surrey immediately come to mind. These jurisdictions are synonymous with drug abuse, uncleanliness, and rampant, unrelenting criminal activity.
However, the Downtown East Side isn’t in complete despair. There are many neighbourhoods that are family oriented, with impeccably manicured front lawns and freshly painted white picket fences. Walk a few blocks up the road, though, and you’ll see a dramatic change of scenery. Used syringes and drug paraphernalia litter the ground, the homeless and hungry huddle together in a futile attempt to keep warm, and the ominous shadows of dealers quickly slip into the shadows. The thing is, you wouldn’t have to go to the DTES (Downtown East Side) to know what is going on there. Public awareness of the state of this part of the city is greatly influenced by the media, and by word of mouth. They say you shouldn’t believe everything you hear (or read) so, the City of Vancouver has decided to let implement a new statistics database that will allow you to draw your own conclusions.
This link, http://vancouver.ca/police/organization/planning-research-audit/district-statistics.html
, directs you to the Database. It has some interesting features, giving users the ability to look at crime statistics by neighbourhood, district and city, and provides easy to read crime maps for review.
I’d like to take this opportunity to invite all of my readers to click on the link above, and review the portion of the website dedicated to statistics by neighbourhood, in particular, August of 2012. Not surprisingly, the Central Business District (CBD) is the epicentre of Crime in Vancouver. This statistic accurately reflects what is commonly agreed upon by most residents. But this certainly does not exclude Vancouver’s more affluent districts, such as Kitsilano and the West End, from crime related activity. The database reveals that, although the district of the CBD reported 43 B&E incidents, the prominent neighbourhood of Kitsilano reported 35 B&E incidents in the same time period. Although these two jurisdictions are separated by a mere 5.4 kilometres, they may as well be worlds apart in the eyes of our society. This database has the potential to alleviate the stigma that has infected the minds of many citizens of this beautiful city; it will show that crime does not discriminate, nor does it manifest exclusively in “bad parts” of the city.
Citizens of Washington State are gearing up to vote on a referendum that could significantly affect their Canadian neighbours. On November 6th, 2012, the citizens of the State of Washington (and also the states of Oregon and Colorado) will vote on whether or not to decriminalize the possession, distribution, and use of marijuana.
If this measure is passed, adults aged 21 and over will be legally entitled to purchase small amounts of marijuana from state licensed shops. The decision to hold the referendum was made when, in June 2011, the Global Commission on Drug Policy declared the war on drugs had failed. It is estimated that the American Federal Government spends in excess of 44 billion dollars a year trying to curb the presence, sale, and use of illicit drugs in the United States. Although purely speculative, it seems as though the United States Government is coming to terms with the “if you can’t beat ‘em, join ‘em” reality they now face. For years, they’ve allowed criminals, gangsters, and drug lords to control one of the most profitable industries in the world. They’ve only just realized that they have the power to influence this industry by regulation, taxation, and ultimately, capitalization.
The outcome of the referendum will mean significant ramifications for British Columbians. If the measure is passed, it will give pro-pot Canadian’s some much needed leverage for their campaign for the decriminalization of marijuana in British Columbia. However, if it fails the negative result will be additional ammo for the Conservative Government’s arsenal in the “war on drugs”. Just as the United States Government is prepared to admit defeat, Stephen Harper’s Government appears to be gushing with confidence – especially after the implementation of Harper’s infamous C-10 Bill, also known as the “Safe Streets and Communities Act”.
Harvard Economist Dr. Jeffrey Miron has pointed out that if marijuana was regulated like cousin substances alcohol and tobacco, the Government could yield a profit of between 14 and 17 billion dollars a year. Although an impressive number on its own, combine that figure with the 44 billion dollars the government will save by no longer funding the war on drugs, and you’ll see the U.S. deficit plunge dramatically.
The Marijuana Initiative, as it is commonly known, has seen overwhelming support; especially in Washington and Colorado. Many Americans, and Canadians, are anxiously awaiting the outcome of the referendum that, in the minds of many, could be the first small step taken in the right direction.
In recent months, we’ve seen an alarming rise in the number of reported animal cruelty cases in British Columbia. The most high profile of these cases is, without a doubt, the shocking carnage inflicted on the 100 sled dogs at a dog compound in Pemberton, B.C. This took place in April of 2010, following the Winter Olympics in Vancouver. The dogs were property of the Whistler based company, Howling Dog Tours Inc (now owned by Great Adventures Whistler). After the influx of tourism and demand for their services dwindled following the Olympics, an employee of the company, Robert Fawcett, slaughtered 100 of the canines “execution style” – either shooting them at point blank range, or slitting their throats. After they were killed, their bodies were disposed of in a mass grave.
It was not just the massacre of the dogs that infuriated the public; it was the fact that Mr. Fawcett filed a claim with the Worker’s Compensation Board, claiming to be suffering from Post Traumatic Stress disorder. Communities all over British Columbia demanded that justice be served in memory of the 100 dogs whose lives were viciously cut short. The B.C. S.P.C.A responded by hiring a team of forensic experts, at a cost of $225,000.00, half of which would be funded by the B.C. Government.
In May of 2011, an excavation team recovered the bodies of 56 of the animals. It has been noted as one of the Canada’s largest animal cruelty investigations.
The question that remained was how would Mr. Fawcett be held accountable for his actions? In May of 2011, new legislation was brought into effect in British Columbia, pertaining to the Prevention of Cruelty to Animals Act. The new legislation was introduced as a direct result of the Sled Dog Massacre. Monetary penalties under the act increased from $10,000 to $75,000. Periods of incarceration for those found guilty of such an offence were raised to 24 months, from 6 months. Furthermore, the legislation extended the statute of limitations for prosecution from 6 months, to 3 years. Unfortunately, under the previous legislation, which applied to Mr. Fawcett’s case, time had run out, and no charges could be pressed under the Act. Charges approved under the Criminal Code were filed against Mr. Fawcett, and, in August of 2012, he pled guilty to one count of causing unnecessary suffering to an animal. His sentencing has been set for November 22nd, 2012 and he will undergo a psychological assessment prior to the sentencing hearing.
The new amendments to the Prevention of Cruelty to Animals Act were made in hopes of deterring people from inflicting abuse upon animals, including service animals such as horses, sleigh dogs, and guide dogs. The only problem is that unless directly caught in the Act, these cases will be difficult to prosecute. The victims of these offences are unable to speak for themselves, and as their masters are usually the cause of the abuse, many cases go unreported. It is often too little too late, as was the case in the Sled Dog Massacre.
Animal advocates, and those who are passionate about the comfort of our furry comrades, will continue to battle for the ethical treatment of animals abused at the hands of their protectors. Only time will tell if the new legislation is effective in the deterrence of animal cruelty.