by Jason Tarnow | Feb 12, 2016 | Crime, Criminal Attorney, Legal Rights, Media, Police, Politics, Wheels Of Justice
When a defence lawyer gets a new file that involves the search and seizure of evidence from their client, the first thing they will want to investigate is if the search was lawful. An unlawful search can often result in evidence being excluded from Trial. Laws surrounding search and seizure are ever-changing, but the fundamental rights laid out in our Canadian Charter of Rights and Freedoms are enduring. Section 8 of the Charter protects Canadians from unreasonable search and seizure, which means that police are often required to obtain a warrant (judicial authorization) before proceeding to collect any evidence they wish to use at Trial.
There have been several pivotal developments in this area of the law recently, one coming from the Court of Appeal. Rodney Fedan of Kamloops, B.C., lost the appeal of his dangerous driving causing death conviction after he argued that his Charter rights were violated when RCMP collected information from his truck’s “little black box” without a warrant. The little black box I am referring to is known as a Sensing Diagnostic Module (“SDM”); they are commonly installed by manufacturers in passenger vehicles. Their main purpose is to monitor the condition/deployment of the airbags, but they have become increasingly more intelligent over the past decade, and are coveted by accident re-constructionists for the data they record and store. Re-constructionists can download the data from the “little black box” and use it to develop insight into the nature of a motor vehicle accident. In Mr. Fedan’s case, the 5 seconds of data recorded by the SDM immediately preceding the crash (which is generally all they record) was all that was needed to prove that Mr. Fedan was travelling at approximately 106 km/hour when he veered off of the winding road he and his passengers. The ensuing accident resulted in the death of 22 year old Brittany Plotnikoff and 38 year old Ken Craigdallie.
Fedan argued that his reasonable expectation of privacy was breached when RCMP officers seized the data from his SDM without a warrant. Unfortunately for him, 3 B.C. Court of Appeal Judges disagreed when they held that the Supreme Court Judge was reasonable in allowing the material into evidence at Trial.
It is crucial to note that Mr. Fedan was not aware that the SDM was capable of downloading and storing data that would be useful to the RCMP in such an investigation. Since he had no knowledge of the data’s existence, he could have no reasonable expectation over its privacy. This is in stark contrast to the level of privacy a person would expect to have over the information stored on their computer or cellphone – warrants are generally required to seize and search these devices (unless searching them is considered to be incidental to arrest).
When the case was originally heard in October 2014, Mr. Fedan was sentenced to 3 years in jail and was banned for driving from 3 years. He was not convicted of impaired driving after the blood samples obtained were ruled to be inadmissible.
Impaired driving cases are complex, and are taken extremely serious by the police and the Courts. If you are facing charges related to drinking and driving, contact Jason and David Tarnow for a free consultation. Our office is conveniently located in central Richmond, easily accessible from anywhere in the lower mainland.
by Jason Tarnow | Jan 4, 2016 | Crime, Criminal Attorney, Police
On Tuesday, December 1, 2015, RCMP made good on a threat to bust several pot dispensaries in the Nanaimo area of Vancouver Island.
At least 10 shops had received warnings in mid-November from the Mounties to cease all operations, or risk being raided, resulting in fines and/or arrests being made. It has been reported that 2 of those shops closed their businesses voluntarily upon request.
The RCMP declined to provide names of which dispensaries were entered into, but general managers of three shops located in Nanaimo confirmed to the media that they were the subject of search warrants.
Trees Dispensary, Phoenix Pain Management, and Natures Source Society all had search warrants executed at their establishments on December 1st. Phoenix Pain Management confirmed that two of their members, both senior citizens, were arrested on site.
The RCMP issued a statement advising that their motivation in raiding the dispensaries came as a result of public complaints that the shops were operating illegally and in an unsavoury manner. It is unknown if the RCMP will be seeking search warrants in order to enter and shut down the remaining businesses that are allegedly running illegally.
The choice to seek judicial authorization to raid the shops comes as a surprise to some, after Vancouver’s decision earlier this year to zone and licence dispensaries that are operating in compliance with certain guidelines. The City’s decision requires that all marijuana shops apply for a business licence as the first step in becoming regulated.
In October, the City announced that out of 177 applications, 11 had passed the first stage, and would be able to apply for permits. The hundreds of applications that did not pass the first stage were in contravention of various regulations, including their proximity to schools, community centres, and each other.
If you have had any criminal charges for controlled substances and/or drugs, do not hesitate to call our law office. We assist people in Metro Vancouver and all corners of British Columbia.
by Jason Tarnow | Sep 14, 2015 | Crime, Police
RoadSafety B.C. took a huge step towards making our roads safer when, in January 2010, they implemented new legislation that made it illegal to use an electronic handheld device while driving. While frustrating for many motorists, the law was put in place to ensure that driver’s keep their eyes on the road where they belong. It isn’t something that anyone can really complain about – you can still talk on the phone if you have a hands free device with Bluetooth capabilities (as long as you aren’t a Novice driver, which is a Class 7 licence in B.C.). This law applies to everyone (although I frequently see RCMP officers using their computers while driving, and their cellphones) and is for everyone’s benefit.
But I’ve always had this nagging grudge against RoadSafety B.C. and our Provincial government for the relentless hypocrisy they apply with legislation. In this instance, it comes as a result of their assertion that talking on your cellphone is a huge distraction, and puts everyone on the roads at risk… but that having a breathalyzer installed on your car, which requires you to blow into it as you’re driving, poses no risk to the safety of road users.
The Ignition Interlock program requires certain driver’s to have a breathalyzer installed on their vehicle, at a cost of roughly $500 for installation, $125 a month for monitoring, $10 a month for insurance, and $500 for removal of the device at the end of your term – a pretty handsome chunk of change. The device, which you are required to blow (with a PASS reading) into to start your vehicle, is finicky and unreliable. Mouthwash, orange juice, windshield wiper fluid, and many other substances can interfere with the results of the test. But that isn’t the huge issue I have with it. My issue is with respect to the fact that you are required to blow into the device while you’re driving.
Yes, while you’re merging on the highway during a torrential downpour with a crying baby in the backseat, your little device will go BEEP BEEP BEEP, signalling that it’s time for you to provide another sample (about 5 minutes after you start driving, then 10 minutes after that, 15 minutes after that, and so on).
An argument can be made that you should pull over to provide a sample. Well, it isn’t always safe to do so – in fact, sometimes it’s illegal (on a highway for instance). So what happens if you just don’t blow into it? Well, this handy little device keeps track of all your samples, including the ones you don’t provide in an adequate time period (at your monthly calibration appointment, the information from your device will be downloaded and reviewed. An unsavoury record may require a lengthier term). Failure to provide a sample will cause your car alarm and hazard lights to go off, effectively scaring everyone within ear shot, and, yes…causing a distraction.
Yes, that’s right. The device that’s meant to save lives may actually cause some damage. Now I’m not saying that the entire program is a crapshoot. I fully agree that this device does serve its purpose in many respects. I would not dispute that on many occasions, it has prevented drunk drivers from getting on the road. But it is, as I said before, extremely hypocritical and contradictory to fairly new legislation. Interestingly enough, I haven’t encountered anyone yet who has been ticketed for using it while driving, and I wonder if there are any of those cases out there. Perhaps the argument that would come from RoadSafety B.C. would boast that if Ignition Interlock keeps one drunk driver off the road, saves one life, then it’s worth it. But the fact is that the Ignition Interlock device is a distraction to the driver who has to use it – plain and simple. An argument can even be made that it requires more attention for use than one might employ when answering a phone call. But RoadSafety B.C. and our Provincial Government won’t be taking their hands out of the pockets of B.C. motorists any time soon – the Ignition Interlock program is here to stay, whether you’re paying attention or not.
by Jason Tarnow | Aug 17, 2015 | Crime
In an all too familiar moment of shame, another RCMP affiliate faces both judicial and public scrutiny after being convicted of theft and breach of trust.
After a three week Trial, Jamie Tiller was found guilty in Chilliwack’s BC Supreme Court after the Jury of nine women and three men deliberated her fate over the course of 2 days.
Tiller was working as an Exhibit Custodian with the Chilliwack RCMP in 2011 when cash started to go missing from the Exhibit room.
What’s interesting about this case is that the entirety of the evidence called was circumstantial – none of it direct. The most damaging evidence was that in 2011, Tiller personally deposited denominations of cash that exactly matched the money that was missing from a particular Exhibit file: 42 $20 bills, 12 $10 bills, and 8 $5 bills. Two other deposits made into accounts linked to Tiller were found to be in exact denominations of what was missing from 2 other Exhibit files.
Tiller was ultimately found guilty of the theft of $2,800.00 – but she was originally charged with the theft of over $40,000.00 connected to 19 RCMP Exhibits. Crown Counsel ultimately conceded that they could not prove beyond a reasonable doubt that all of the thefts could be linked to Tiller.
Gurpreet Gill, Tiller’s lawyer, told the Court that there were serious flaws in the Crown’s case – in particular, the lack of any physical or direct evidence whatsoever. Further, she alleged that Don Reimer, another Exhibit Custodian, was more likely the culprit. She insinuated that Reimer was disgruntled after twice being overlooked for a promotion, and that he had said his Supervisor didn’t like him.
Aside from having to pay restitution to the City of Chilliwack, Tiller faces possible jail time. Justice Miriam Gropper ordered a Pre-Sentence and Psychological Report to be completed prior to sentencing, which is expected to take place in the fall.
by Jason Tarnow | Jun 24, 2015 | Crime, Legal Rights
Today, June 24, 2015, Vancouver became the first City in Canada to regulate medical marijuana dispensaries. It comes as yet another victory to those on the Cannabis Crusade, and another devastating blow to Federal Health Minister Rona Ambrose’s anti-weed agenda.
In an 8-3 vote, Vancouver City councilors decided to impose new regulations on the city’s rogue pot-shops. Mayor Gregor Robertson was quoted saying “we have this proliferation of dispensaries that must be dealt with.”
There are a number of regulations that are being proposed, including the following:
- Dispensaries will pay a $30,000 licensing fee;
- There will be restrictions on where dispensaries can operate, i.e.
not within a certain distance of schools, community centers,
and each other;
- Non-profit compassion clubs will be able to pay a licensing fee of only $1,000
Some may speculate that it is unfair that non-profit clubs pay such a small licensing fee compared to regular dispensaries – but Councilor Kerry Jang pointed out that Compassion Clubs offer other services such as psychological counselling and nutritional information/advice. They also assist people in transitioning from medicating with marijuana, to other treatment options (when possible). He suggested that the licensing fees collected from compassion clubs could be used to fund addiction treatment programs.
While this can only be considered a huge success to medical marijuana advocates, the clock has started ticking: dispensaries now have 60 days to apply for a licence. Some shops, particularly those located in the Downtown Eastside, the Granville Street Entertainment District, and those on Pender Street, will be forced to close.
There are a number of rules in place for dispensaries located in clusters. More information can be found here.
We still recommend keeping a criminal lawyer from team Tarnow on speed dial at all times – remember: freedom to toke isn’t a joke – you can still face criminal charges for the possession of marijuana.
More on this story as it develops!
by Jason Tarnow | Jun 23, 2015 | Crime, Criminal Attorney
RCMP Constable Kwesi Millington, one of 2 Mounties found guilty (four were charged – two were acquitted: Cst. Gerry Rundel and Cst. Bill Bentley) of perjury in the Braidwood Inquiry into the tasering death of Robert Dziekanski, was sentenced on Monday, June 22, 2015. He received a 30 month (2.5) year custodial sentence, meaning that he will serve his time in a Federal Penitentiary. Next to be sentenced will be Benjamin “Monty” Robinson, who resigned from the RCMP on July 22, 2012.
In delivering his sentence, Supreme Court Justice William Ehrcke dismissed Defence counsel’s request for a 1 year conditional sentence. He acknowledged that the Crown was seeking a prison term of 3 years. The maximum term of imprisonment for perjury under the Criminal Code is 14 years.
Ehrcke stated that the sentence must denounce the Constable’s actions, and deter other Officer’s from engaging in similar conduct. He noted that he decided a sentence on the higher end would be more appropriate, as Cst. Millington’s false testimony “stood in the way of getting of getting a true explanation” at the Inquiry into Dziekanski’s death.
We don’t often see many high-profile perjury cases like we have here. Over the past year or so, in Canada, the United States, and across the world, we have seen that the public’s trust in law enforcement continues to slide downwards. The result of this case is a prime example of why our suspicions surrounding the intentions of the police are indeed warranted.
But why is perjury considered to be such a serious offence by the Courts? With a maximum sentence of 14 years, it carries a higher penalty than many other obviously serious offences as defined within the Criminal Code. But it isn’t without good reason.
There is a difference between telling a lie, and telling a lie under oath. When you testify in Court proceedings, you are asked to swear, or affirm, that your testimony is the truth, the whole truth, and nothing but the truth. Further to that, as a Defendant, you are never compelled to testify. The choice to do so, or not do so, is one that must be discussed between you and your Vancouver criminal lawyer. Remember, when making a statement to the police, anything you say CAN and WILL be used against you in Court. This is why you should always consult experienced and seasoned counsel prior to making any admissions to law enforcement.
