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 | Jun 16, 2015 | Crime, Police
In a ground-breaking 7-0 decision, the Supreme Court of Canada has confirmed that to restrict medical cannabis users to consuming cannabis only in “dried” form, is against theCanadian Charter of Rights and Freedoms.Specifically, it violates a person’s right and liberty “in a manner that is arbitrary and hence is not in accordance with the principles of fundamental justice.”
The legislation regulating marijuana is contained within the Controlled Drugs and Substances Act. Section 4 and Section 5 which prohibited the possession or sale of anything other than “dried cannabis” are now of no effect.
This comes as a great victory for marijuana advocates across Canada – and in particular, to Owen Smith, whose personal dilemma sparked the need for change within the legislation.
Medical marijuana users are now free to medicate in whichever way they find most beneficial, whether it be to feast on edibles (cookies, chocolate, brownies, etc – you can incorporate THC into almost anything!) vape (similar to smoking, but with a much less harsh effect on a person’s respiratory system), dab, etc. There are creams that contain THC that provide great relief to people with painful, chronic physical conditions such as rheumatoid arthritis.
Not everyone is as thrilled as Owen Smith – Health Minister Rona Ambrose expressed outrage at the High Court’s ruling, stating the following:
“Let’s remember, there’s only one authority in Canada that has the authority and the expertise to make a drug into a medicine and that’s Health Canada,”
“Marijuana has never gone through the regulatory approval process at Health Canada, which of course, requires a rigorous safety review and clinical trials with scientific evidence.”
While Ms. Ambrose declared that the Federal Government will fight against the normalization of marijuana, it appears that for now, they’re in the weeds.
Heres a link to a new’s story done by Global News
The Cannabis Crusade continues, check back soon for more!
by Jason Tarnow | May 5, 2015 | Crime, Police
Ian Pumphrey, who was acquitted of the allegation that he was talking on his cellphone while driving, was in the Yukon Court of Appeal this week where an Appellate Court Judge ruled that he was indeed guilty of using a mobile device while driving.
In the Yukon Supreme Court, Pumphrey successfully argued that because his cellphone was wedged between his ear and shoulder, he technically was using his device “hands free”. The Crown appealed the decision of the Supreme Court Judge, and, when the case was heard in the Yukon Court of Appeal earlier this week, a Judge agreed with the Crown and found Mr. Pumphrey guilty.
The Judge stated that the Supreme Court Judge had erred when he ruled that he had no jurisdiction to interpret the ambiguous language of the Motor Vehicle Act. The Appellate Court Judge advised that it is the Courts duty to interpret language where it is unclear. He went on to say that in his interpretation, hands-free means “use without being held by the operator in any fashion”. He imposed a suspended sentence and one day of probation on Pumphrey. He also advised that he had wished to grant Mr. Pumphrey an absolute discharge, due to the work he had done in representing himself, but declared that he did not have the jurisdiction to impose such a sentence.
Bottom line: If you have to take that call, just pull over.
Link to story here: http://www.cbc.ca/news/canada/north/appeal-judge-convicts-yukon-man-in-hands-free-cellphone-case-1.3061799
by Jason Tarnow | Apr 17, 2015 | Legal Aid, Police
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.
