by Jason Tarnow | Oct 13, 2026 | Crime, Media, Police, Social Media, Wheels Of Justice
Artificial intelligence is changing how lawyers research, draft, and communicate. Courts are now confronting how it should be used in the most solemn part of a criminal case: sentencing. A recent Arizona decision shows how quickly the technology can cross a line, and why criminal defence counsel must be ready to challenge it.
What Happened in Arizona
On September 30, 2026, the Arizona Court of Appeals, Division One, vacated a 10-year manslaughter sentence imposed on Gabriel Paul Horcasitas. He was convicted in the 2021 road-rage shooting death of Christopher Pelkey. At the May 2025 sentencing hearing, the court played an AI-generated video that showed Pelkey addressing the judge and offering forgiveness. The video was created by Pelkey’s sister, who was preparing her own victim impact statement.
The appellate court affirmed the manslaughter conviction but sent the matter back for re-sentencing. Its reasoning focused on due process.
The Court’s Core Concern
The court explained that the video did not simply preserve something Pelkey had said while alive. Instead, it presented “a depiction of the victim and his thoughts created from the imaginings of the victim’s sister.” In the court’s view, the video blurred the line between what the family believed the victim would have said and what the victim actually thought.
The court also held that victim-rights protections do not override a defendant’s right to due process. A defendant must be able to test and respond to the information relied on at sentencing. An AI-generated speaker that cannot be cross-examined, and whose words cannot be traced to verified sources, presents an obvious problem.
Importantly, the ruling is not a blanket prohibition on digital media at sentencing. It addresses an AI-generated likeness presented as the voice of a deceased person, where the sentencing judge expressly relied on its content.
Why This Matters in British Columbia
The Arizona decision is not binding in Canada. It is, however, a clear warning for practitioners here.
In Canada, victims may describe the harm they have suffered through victim impact statements under section 722 of the Criminal Code. These statements are an important part of the process, and they must be handled with care. They are meant to convey the real effects of a crime on a real person’s family and community. They are not a vehicle for putting invented words into the mouth of someone who has died.
Sentencing in BC is also governed by principles of proportionality, individualized assessment, and fairness. An emotionally powerful presentation that the defence cannot meaningfully answer risks distorting that assessment.
What Defence Counsel Should Do
If an AI-generated element is proposed for a sentencing hearing in British Columbia, defence counsel should:
- Object early and in writing, so the objection is preserved for appeal.
- Request disclosure of how the material was created, who wrote the words, and what sources support them.
- Demand the right to respond, including cross-examination where appropriate.
- Seek a ruling on admissibility before the material is presented, not after.
Acting promptly protects the client’s right to a fair sentencing and protects the integrity of the process.
Respecting the Solemnity of Sentencing
Sentencing is not a stage for novelty. It is where the court decides how the state will respond to a person’s conduct, and where a family’s loss is formally recognized. Those who have been harmed deserve a process that is rigorous and honest. Those accused deserve a process that is fair, transparent, and based on evidence.
Technology will continue to develop, and courts will need to adapt. Until clear rules exist, the safest course is to keep sentencing grounded in verifiable facts and to insist that every word the court hears can be tested.
Facing a Sentencing in Metro Vancouver?
If you or a loved one is facing sentencing in Metro Vancouver, Richmond, or elsewhere in British Columbia, experienced criminal defence counsel can make a meaningful difference. Tarnow Criminal Law represents clients in all levels of Court in British Columbia and the Yukon on matters including but not limited to sexual assault, drug trafficking, impaired driving, dangerous operation, and youth criminal justice.
Contact Tarnow Criminal Law today at 604.278.0555 to schedule a confidential consultation.
This article is general information and not legal advice. Each case turns on its own facts. Speak with a lawyer about your specific situation.
by Jason Tarnow | Feb 24, 2022 | Crime, Media, Police
A Vancouver man suffering from long haul COVID-19 symptoms was successful in the judicial review of his 90-day Immediate Roadside Prohibition (“IRP”) after arguing that the Adjudicator breached his right to procedural fairness in his original review to RoadSafety BC.
On February 11, 2021, Peter Ronald Gibson was issued an IRP after the police officer alleged he refused to provide a sample. Mr. Gibson made 7 attempts into the Approved Screening Device, none of which successfully yielded a suitable sample. As a result, his vehicle was impounded for 30 days, and he was prohibited from driving for 90 days.
Mr. Gibson sought a review of his IRP to RoadSafety BC, delegate of the Superintendent of Motor Vehicles on the basis that he had a reasonable excuse for failing to provide a breath sample. In Mr. Gibson’s original review, he provided evidence in the form of his Affidavit. He also provided a letter from his physician that confirmed his diagnosis – he was suffering from long term symptoms as a result of COVID-19, including shortness of breath on exertion.
The letter reads:
“His physical examination shows evidence of post-viral reactive airways with sever forced expiratory wheeze. He has been given prescriptions for Flovent and Salbutamol inhalers today. This could contribute to his difficulty performing breathalyzer test during recent traffic stop”
The Adjudicator at RoadSafety BC rejected the letter from Mr. Gibson’s physician, stating that there was no evidence that the physician was aware of the “minimum flow rate (of breath)” required to provide a sample. Mr. Gibson also provided his own Affidavit, which confirmed that he had been referred for treatment, which included CT scans and chest x-rays, among other diagnostic tests.
Keep in mind that the role of the Adjudicator is to analyze whether Mr. Gibson had a reasonable excuse for failing to provide a sample. The analysis is done through review of the Report to Superintendent and all included materials, and also through review of all materials provided by the Applicant (in this case, Mr. Gibson). The Adjudicator may also rely on the Operator’s manual for the Alco-Sensor FST (the Approved Screening Device), which includes information such as proper operating temperature of the device, screen codes, and procedural standards.
Ultimately, the Adjudicator determined that Mr. Gibson’s version of events lacked credibility, and that his physician did not provide sufficient evidence that his medical condition would have prevented him from providing a suitable sample into the Alco-Sensor FST. In doing so, they advanced their interpretation of the testing requirements within the Operator’s manual – specifically, the wording used to describe the necessary airflow required to provide a sample:
“The Alco-Sensor FST has an automatic sampling system designed to ensure that a sample of deep lung air is obtained and analyzed. In order to trigger automatic sampling the subject must blow with a minimum flow rate, must produce a minimum breath volume, and blow for a minimum duration…”
On judicial review, Supreme Court Justice Tammen took issue with the Adjudicator’s interpretation of this issue. The Judge dissected the Adjudicator’s analysis and concluded that despite quoting the appropriate resource, the manual itself provided no information to estimate the “minimum” flow rate required.
Through the Adjudicator’s analysis, Justice Tammen determined that they had relied on information (relating to the required flow rate of a sample) that was not available to the Petitioner (or his physician) at the outset of his review with RoadSafety BC. This breached the Petitioner’s right to procedural fairness.
Justice Tammen directed that the Adjudicator’s decision confirming the IRP of the Petitioner be set aside, and that the matter be remitted to RoadSafety BC for a new hearing.
This case demonstrates a significant flaw in the IRP regime – that is, a blurring of the lines between adjudication and medical expertise. While adjudicators may have specialized knowledge of certain issues due to continued exposure via their employment, the boundaries in their role must be respected and enforced.
If you have received an Immediate Roadside Prohibition, an Administrative Driving Prohibition, or have been charged with Impaired Operation of a Conveyance, contact an experienced criminal lawyer at Tarnow Criminal Law as soon as possible. Our office is located in the heart of Richmond, only 20 minutes from downtown Vancouver on the Canada Line, and within 10 minutes of Vancouver International Airport (“YVR”).
Our firm is also licensed to work in the Yukon Territory, where the 90-day review process for impaired driving is an entirely different process. If you are facing impaired driving charges in the Yukon, contact our office as soon as possible for a consultation.
