No Mobile While Mobile!

 

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.

Snoop Dogg Monologue

snooooooop

Hip hop star Snoop Dogg played a DJ set at Vancouver’s Fortune Sound club on Saturday, April 17, 2016. His travel into Canada, however, was met with resistance by officials at the Canada Border Services Agency (CBSA) – which isn’t anything new for Snoop. He frequently encounters complications when crossing international borders – to note, he was recently hassled by officials in Italy for carrying around $400,000 cash, and was banned from entering the UK in 2006, after he and his posse were denied from British Airways’ First Class Lounge. A brawl ensued, and ultimately, Snoop was permanently banned from entering the United Kingdom (and ever flying on British Airways again). Snoop has previously been arrested for other criminal offences with respect to firearms, assault, and narcotics.

It is presumed that Snoop was referred for secondary screening by CBSA as a consequence of his clear endorsement of cannabis. Cannabis is widely used across the US, and is legal in several states for medicinal and recreational purposes. It’s just as frequently accessed by Canadians, and we intend to catch up to our southern neighbors pretty soon (The Liberal government announced that Federal legislation to legalize and regulate marijuana will be making its way to Parliament in Spring 2017).

Understandingly, the rapper became enraged at what he observed when he cruised down a back alley in Vancouver’s Downtown East Side – a district riddled with intravenous drug users, disorder, etc. In his Instagram video (link here), Snoop vocalizes his disdain at how Canadian Border officials dealt with his entrance into the country. To sum it up, he basically shames the Canadian Government with respect to how its priorities are organized – clearly indicating that the prevalent opioid use in Vancouver’s DTES should be viewed as a much more serious issue than a little bit of weed.

Anyone with knowledge of the differences between marijuana and heroin knows which is the lesser of 2 evils – so it does seem contradictory that we not only condone the use of heroin on the DTSE, but seemingly encourage and accommodate it, too. Insite (which is located near where Snoop’s gig was) is a publicly funded program, and its main goal is harm reduction. The idea is that if we are able to monitor heroin use, we will be able to minimize the number of overdoses, and prevent individuals from sharing and disposing of syringes and other tools. As you might guess, the venture isn’t cheap.

The Court of public opinion on law enforcement priorities is harsh, swift, and unforgiving. Snoop’s Instagram rant has received hundreds of thousands of views, and his sentiments were shared by the majority of viewers. If you consider the amount of money that has been directed towards Insite, and the amount of money that is spent annually on investigating and prosecuting marijuana related offences, it’s easy to understand why people are so frustrated with our Government’s stance on cannabis policy. Hypocritical, controversial, and contradictory are the best 3 words to describe our Government’s prerogative on combatting one deadly drug, while ever-so-slowly recognizing the innocuous nature of another.

In any event, it’s fair to say that Snoop Dogg is tired of the chronic problems he encounters when travelling from one place to another – my guess is that he’ll continue to hash it out with border officials. The grass isn’t always greener on the other side, anyways.

In the decades that we have been practicing criminal law, we have rarely, if ever, seen a violent crime associated with simple marijuana possession or use. Violence is more frequently associated to drugs like cocaine, heroin, and methamphetamine. If you have found yourself in a situation that involves criminal charges related to any of the aforementioned, or any other area of criminal law, call our office at any time for a free consultation.

Mistaken belief of consent: drawing the line on sexual assault allegations

sexual assault

A man from Saanich, B.C., has learned that he will not face charges of sexual assault stemming from complaints received from 4 women.

The man was arrested and a criminal investigation was pursued by RCMP and several senior Crown prosecutors. Upon reviewing the available evidence, assessing the credibility of the complainants, and considering possible defences that could be raised by the Accused, Crown Counsel determined that there was not a substantial likelihood of conviction, and announced that no charges would be filed.

The charge assessment standard of Crown Counsel takes many factors into consideration when deciding whether or not to lay charges. With respect to sexual assault cases, there are many important elements to acknowledge – failure to do so can result in charges that are ultimately stayed, or receive an acquittal at Trial. The stakes are high both for the Accused and for the complainants.

On the part of the Accused, being formally charged with sexually related offences is much more than simply embarrassing: it can result in the loss of employment, the breakdown of relationships, and can destroy the Accused’s’ reputation in general – even before the case has gone to Court. Once charges have been laid, it seems that notion of “innocent until proven guilty” is thrown out the window. A stay of proceedings, or a trial that results in an acquittal, is met with rage and disgust from the public.

On the part of the complainants, it is well known that going to Trial is a stressful and potentially damaging experience. Testifying and being cross examined can be disturbing – recalling horrific memories is emotionally and mentally harmful. Since there is never a guarantee to the complainant that the Accused will be convicted, it seems logical that a well advised complainant would only want to go through such an ordeal if there was a substantial likelihood that the Accused would be convicted.

In this case, the Crown determined that there were a number of operable defences that could be raised by the Accused, including the honest, but mistaken belief of consent.

The identity of the Accused person will remain uncirculated by the media for privacy reasons.

The number of sexual assaults in Metro Vancouver, and in particular, Surrey, have increased exponentially over the past few months. Many of the attacks have taken place in broad daylight, in high traffic areas such as the Vancouver UBC campus. The brazen nature of the attacks is extremely concerning to authorities.

Individuals charged with these offences are encouraged not to proceed self-represented – this area of law is extremely complex, and the penalties are significant. Being convicted can result in mandatory jail time and requirement to register as a sex offender, and other serious lifelong consequences. If you have been charged with any sexually related offences in British Columbia or the Yukon Territory, don’t hesitate to contact David or Jason Tarnow for your free, confidential consultation. Aside from providing legal advice with respect to your criminal charges, our lawyers will be able to help (if it is your desire) refer you to programs and treatment options to address any underlying issues that may have led you to the situation you have found yourself in.

 

Big Brother: Proposed “Injectable” GPS tracking system draws criticism

Apparently, the truth is stranger than fiction, even when it’s like something straight out of George Orwells Nineteen Eighty-Four: injectable GPS tracking devices for notorious criminals.

That’s what Williams Lake City Council members voted on this week – unanimously. With a population of roughly 14,000 people, the community is now grappling with serious, unrelenting criminal activity. The Canadian Federal government keeps track of the statistics with respect to crime in municipalities across the country, sourced from Statistics Canada Crime Severity Index. While no one was surprised to see Williams Lake make the list (it has for many,many years) there was new concern this time around when the city was ranked at the top of the Index. Concern escalated when this past Monday, surveillance captured 2 males stealing another males bicycle at gun point in broad daylight. The brazen nature of the crime set alarm bells sounding.

It has been reported that out of the community of roughly 14,000 people. Between 20-100 of them are known to police as being prolific offenders – that is, individuals who are frequently at odds with the law. On paper, Williams Lake RCMP have 13 local residents on their prolific offender list, 7 of whom are currently behind bars. The rest are being closely monitored.

City Councillor Scott Nelson was quoted saying “For the privacy of few who don’t even believe in law, we need to use the technology to the benefit of the society as a whole,” when defending the Council’s unanimous vote for injectable GPS trackers. Indeed, having a GPS device located on an individual who is a high-risk to re-offend would probably result in peace of mind for a community ravaged by crime – but it comes at a high cost to a society that is increasingly leery of police presence.

As it stands, there is no legal authority for the use of injectable GPS tracking. GPS monitoring for other Canadian offenders is tightly regulated and requires judicial authorization. Civil liberties lawyers have responded to the Williams Lake City Council by advising that there is little to no likelihood that such a system would ever be found to be constitutional.

For now, Williams Lake will have to rely on good old fashioned police work and vigilant, community minded residents to do their part in keeping the small northern town safe.

Little Black Box: When smart devices aren’t so smart

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.

RCMP raid marijuana dispensaries on Vancouver Island

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.