On March 29, 2018, Bill C-75 had its first reading in the House of Commons, and upon publication, was quick to receive scrutiny from lawyers across the country.
The Bill seeks to amend provisions of several key pieces of legislation, including the Criminal Code and the Youth Criminal Justice Act. However, in doing so, many rights currently afforded to an Accused will become a thing of the past.
The first major concern that stands out is the proposal to abolish the use of peremptory challenges in the jury selection process. When jurors are being selected, an Accused person and his Defence counsel are afforded 12 of these challenges, permitting them to deny a juror without explanation. Crown Counsel also has 12 challenges for their own use. The purpose of peremptory challenges is to provide balance in the adversarial trial process – however, the motivation behind their use differs depending on who you ask. The Bill doesn’t elaborate on how jury selection will be managed without peremptory challenges.
Equally alarming is the proposal to deny Preliminary Hearings for offences that don’t carry a maximum term of life imprisonment upon conviction. It is also being suggested that Justices be given power to limit issues examined and witnesses called during a Prelim. The Preliminary Hearing’s purpose is to determine whether the Crown has enough evidence to commit an Accused person to stand Trial, a valuable tool for the Defence in any given case (even if the offence doesn’t carry a potential life sentence). However, it isn’t beneficial only to the Accused. The evidence heard at a Preliminary Hearing is transcribed, to be recalled upon by parties at Trial. The issues explored at the Prelim can assist in narrowing what issues will be raised at trial, which in return reduces the likelihood of wasted court time on irrelevant issues (especially important in consideration of the impact of delay!). With the ability to seek a Direct Indictment from the Attorney General, the proposal to limit Prelims is wholly unnecessary.
Next up, and not surprisingly, we see this Bill seek to increase punitive measures for Accused persons facing allegations of abuse against an intimate partner. These consequences begin prior to any finding of guilt – in fact, they begin at the onset of proceedings, when an Accused person seeks release on bail. Bill C-75 suggests more “onerous interim release requirements” for individuals facing allegations relating to violence against an intimate partner. This essentially means that the terms of release will be increasingly stringent. On that note, the Bill also proposes to increase the maximum term of imprisonment for repeat intimate abuse offenders, and to have violence against a partner considered an aggravating factor at sentencing.
Perhaps most disturbing is the revision relating to police powers and written evidence in the form of an Affidavit. Currently, a police officer is required to attend a trial in person to give oral evidence regarding their involvement in the case. They are subjected to cross-examination on that involvement, at which time they must truthfully answer questions posed by the Defence. This is a crucial opportunity for the Defence to raise reasonable doubt (when considering that police officers often offer the most compelling and credible evidence) which is the only reason for taking a matter to trial. Of course, the Defence will still be allowed to apply to cross-examine a police officer on their written evidence – but that application requires additional court time, and one struggles to believe that such an application would be denied in any event. So this proposed amendment will likely result in additional delay and squandered court time.
Many of these amendments strike at the heart of the adversarial process, and an Accused’s person’s right to make full answer and Defence to the charges against them. Numerous changes are procedural, justified by the assertion that too many cases are being thrown out over judicial delay. Systemic flaws, a lack of inquiry and input by judicial staff, and failure to accept and validate the concerns of concerned legal professionals in the private sector are a few of the factors that have resulted in impractical proposals pushed forward in Bill C-75.
The Vancouver Police Department announced that it will be using a new form of intelligence to stop crime before it happens.
No, it isn’t the formation of the Psychic Task Force. It isn’t any sort of “Big Brother” surveillance method (I think) – rather, the VPD has declared it will be the first law enforcement agency in Canada to utilize a “crime prediction model” that will tip officers off to property-crime offences before they happen.
Unsurprisingly, the public has been given very little information about what this new tool is able to do. So far, all we have been told is that it is a computerized program that was apparently very successful in its 6 month pilot project.
The program identifies both residential and commercial areas that display a high-likelihood for property crime. Surveillance areas are set up within a 100-500 meter perimeter, and officers are then dispatched to those areas for visible public presence.
The presence of police, of course, acts as a deterrent for thieves and vandals.
Interestingly enough, this comes as a further development to the 2015 crime mapping tool developed by the VPD. This interactive map is available to the public, for use by anyone interested in learning more about which areas in Vancouver are deemed higher risk. While many people attribute
While this may seem like a weak method of combatting serious and ongoing theft and vandalism, preventative measures are only deemed necessary once an issue has spiralled out of control.
Charges that police hope to see a reduction in as a result of this new preventative measure:
Break and Enter
Break and Enter to commit an Indictable offence
Theft under $5,000
Theft over $5,000
Possession of stolen property
It isn’t unusual to see “petty” crimes, such as minor theft, escalate into more serious situations that can include violent offences as well – for example, a man breaks into a vehicle looking for valuables, but the owner of the vehicle happens to come down to his car as the crime is in progress. An altercation ensues, police attend, and the charges include break & enter, theft, AND assault. By preventing the theft, the entire situation could have been avoided.
Ideally, this tool will aid police in preventing some crimes from happening, but realistically, crimes will still occur in the areas that aren’t padded by police presence.
We are conveniently located in Richmond, B.C. only a few steps away from Brighouse Station on the Canada Line, which brings you from various locations in Metro Vancouver in 20 minutes. We service all areas of the lower mainland (including but not limited to Surrey, New Westminster, Port Coquitlam, North Vancouver, and Abbotsford) the interior of B.C. (including but not limited to Cranbrook, Kelowna, Kamloops, and Salmon Arm), Northern B.C. (including but not limited to Prince George, Prince Rupert, and Quesnel) and in the Yukon Territory where we offer services in Whitehorse, Dawson City, and Old Crow. Contact our office today for your initial consultation.
It has been over one year since Dr. Perry Kendall to declare a Public Health Emergency in British Columbia.
That emergency announcement has not been retracted, but now, the Federal government is beginning to take additional steps to combat the ongoing crisis.
On May 2, 2017, Bill C-224, to be known as the Good Samaritans Drug Overdose Act, was unanimously passed in the House of Commons by MPs from all parties.
The bill aims to ensure that individuals who seek emergency help for someone suffering from an overdose can do so without fear of being prosecuted for drug possession offences. Additionally, it will protect those same individuals from facing breach charges related to drug possession.
The passing of Bill C-224 is fundamental in encouraging anyone witnessing an overdose to seek emergency medical treatment for that individual.
Perhaps 1,000 doesn’t seem like a huge number – but do remember to that in the entire year of 2012, there were only 12 deaths attributed to Fentanyl overdoses.
In 2013, that number jumped to 50.
Fast forward to 2016, and that number climbs to 575 (roughly 47 people per month).
There is no question about the existence of a relationship between criminality and drug abuse. The two are not mutually exclusive, but are by no means estranged either. There is a direct link between them – profiting from crime (theft, fraud, etc) is the often only way to fuel addiction.
Our Provincial Government, however, is not obtuse to the unique circumstances that plague Vancouver’s drug scene. Vancouver’s Downtown Community Court is the first of its kind in Canada and serves roughly 1,500 people per year. It is a purpose-designed courthouse, and strives to bring resources for justice, health, and social services to the Vancouver community. Matters will be referred to the Downtown Community Court when the offender requires assistance to deal with underlying issues such as homelessness, substance abuse, and mental health problems.
With enactment of the Good Samaritans Drug Overdose Act, citizens do not have to worry about being penalized for seeking emergency assistance for someone who is overdosing. And rightfully so. Our government’s first priority should be harm reduction for every individual battling addiction, with no agenda to balance that objective with the war on drugs.
Bill C-224 does not however provide any immunity from prosecution for drug trafficking or other drug related offences.
There could not be a worse time to find yourself charged with an offence related to Fentanyl. Being charged with possession in circumstances unrelated to those discussed above can result in a lengthy term of incarceration, lifetime travel restrictions, and a host of other consequences. Contact a Vancouver Criminal Lawyer at Tarnow Criminal Law today for a free consultation.
The scales of justice weighed in favour of an Accused woman earlier this week, when the Ontario Superior Court upheld her acquittal of impaired driving related charges in Ontario.
Kimberly McLachlan was acquitted of impaired driving in August 2015 after she succeeded in having evidence inadmissible at Trial – her breathalyzer readings, to be specific. This is known as a Charter application, as it seeks to have evidence excluded based on a breach of a Charter protected right.
Her application was based on the fact that when she taken to the police detachment, where she was required to provide a breathalyzer sample, the arresting officers’ had her stand on a scale so that they could have an accurate record of her weight.
Unfortunately, their attempt to be thorough actually triggered a breach of Ms. McLachlan’s section 8 under the Charter – providing protection against unreasonable search and seizure.
It is not part of standard procedure that the police would weigh a person who has been arrested on suspicion of impaired driving. The Judge confirmed that weighing a person is a violation similar in nature to taking bodily fluids (such as a urine or blood) without a warrant.
It is nuances like this – something seemingly harmless – that will catch the attention of a skilled criminal lawyer. Circumstances like these demonstrate the necessity of hiring a criminal lawyer who is familiar with Charter protected rights.
Impaired driving is a particularly complex offence, with a variety of available defences that must be reviewed in tandem with your unique circumstances. Contact our office today for a consultation that will allow us to come familiar with your situation.
Dialogue surrounding mental illness echoes from the walls of nearly every courtroom across the country, which won’t come as a surprise to anyone. When dealing with an Accused person, both Crown and Defence will investigate what their client’s state of mind was like during the commission of the offence – it speaks to intent, which is a very important component in analyzing the intricacies of criminal behavior.
If Crown Counsel proceeds by way of Indictment (as opposed to summarily), the Accused will have the option of having their case heard by a Judge and Jury. If they so choose to have a Jury, members of the public will receive a summons to attend Jury Selection. Some will be chosen, and some will be dismissed. All who are chosen to sit on the jury will not have a say in what their role will be – they are bound by civic duty to fully participate.
Lengthy criminal trials are not uncommon – Robert Pickton’s Trial in 2007 lasted nearly a year, with lawyers calling 129 witnesses, and generating over 1.3 million documents. 129 individuals providing testimony, often gruesome and violent in nature, falling on the ears of 12 every day citizens, none of whom requested to put their lives on hold for a year. Jurors are required to view photo and video evidence, regardless of how brutal those images may be.
But, what happens to jurors once the Trial is over? One would assume that they gladly return to the nuisances of the life they had before the Trial. Sadly, however, many never return to their normal lives.
Post-Traumatic Stress Disorder is often associated with mental illness – however, this is not a fact. PTSD is a psychiatric injury. After repetitive exposure to traumatic situations, the human psyche may succumb to the disturbance. This is rarely immediate – recurring nightmares or overwhelming thoughts are normal to a point. Fresh events remain fresh in our minds.
It is the fog, cotton-in-your-ears feeling, and anxiety that will indicate the onset of PTSD weeks or months after the trauma has occurred. It can be a very isolating and numbing experience – and for whatever reason, societal stigma or taboo, people tend to carry a lot of shame with their PTSD diagnosis. And it is no different for jurors like the ones who sat on Pickton’s jury.
After hearing weeks of testimony, a juror can feel a genuine, bona fide connection with the victim(s). This is amplified when the victim’s family and friends are present for the Trial. Huge internal conflict can erupt when a juror must balance their responsibility and duty to the Court with their own morals and values. This internal back-and-forth is another burden, on top of what they have seen and heard, that they will be left to deal with on their own when jury duty is over.
So what responsibility does our government have to jurors afflicted with PTSD as a result of their participation at Trial? It would not be absurd to consider them as victims of crime. As such, they should have access to every single resource that is made available to the victims of first instance.
Last month in Ontario, the provincial government began offering free counselling for juror members, available either at the end of the coroner’s inquest, or at the end of the Trial. Only time will tell how receptive jurors are to the program, which sadly, hangs on the willingness of individuals to fight against PTSD and its crippling side effects.