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.
by Jason Tarnow | Sep 11, 2020 | Crime, Media, Wheels Of Justice
It has been six years since Matthew de Grood was charged with the murders of five young people at a house party in Calgary, Alberta, and four years since he was found to be Not Criminally Responsible for those offences.
It was concluded that de Grood was suffering from delusions, attributed to undiagnosed schizophrenia, when he caused the deaths of five schoolmates from a local university. He has been in a secure psychiatric facility ever since.
As we have discussed in previous posts, a finding of NCR is neither a determination of guilt, nor an acquittal. It is the beginning of alternative proceedings, which ultimately seek to determine if/when an Accused person can be released back into the community. Like all individuals found NCR, de Grood is required to appear before the Review Board to assess his progress, and to evaluate what freedoms, if any, he may be granted as a result of said progress.
Back in 2016, the Crown suggested it would be making an Application to seek a “High Risk NCR” designation for de Grood. Had this designation been imposed, his appearance before the Review Board would have been extended to take place every three years instead of annually. However – it appears that the Application was never made. This was likely due to the fact that the relevant legislation – the Not Criminally Responsible Reform Act – did not go into force until July 11, 2014, nearly 3 months after the offences took place. As such, the law could not be retroactively applied to de Grood’s case.
At his recent hearing, de Grood’s counsel spoke of the progress he has made during his time at the psychiatric facility. He has been afforded the opportunity to spend the night at his parent’s home on several occasions, taking hospital transportation to and from medical appointments, and volunteering with Meals on Wheels. His counsel submits that de Grood should be granted an absolute discharge due, in part, to the progress he has made with his mental health issues, including being cooperative with taking his medication – and recognizing the devastating consequences that would come as a result of not taking it. He has also demonstrated a high level of remorse for his actions.
Defence counsel further acknowledged that de Grood’s case is extremely high profile. There are concerns regarding the public’s reaction to seeing him on public transit, and how he may face serious adversity in transitioning to a group home.
The Review Board reserved its decision, and accordingly, de Grood remains in a psychiatric facility with heavy restrictions on his freedoms.
by Jason Tarnow | Sep 2, 2020 | Crime, Criminal Attorney, Legal Rights, Media, Police, Politics, Social Media, Uncategorized
In one of our previous posts, we discussed biometric technology and the role it plays in Canadian law enforcement. It is, however, only one of the “predictive” tools utilized by the police in relation to criminal investigations.
A new report by the Citizen Lab at the University of Toronto goes into alarming detail regarding growth of algorithmic policing methods, and how this technology compromises the privacy rights of Canadian citizens. The report is incredibly thorough and comprehensive, delving into how this controversial technique offends various sections of our Canadian Charter of Rights and Freedoms. Firstly, though, it is important that our readers understand what algorithmic policing is.
The overall success of any algorithm is the system’s ability to gather, store, and analyze data – with law enforcement’s methodology being no different. A “location focused” algorithmic approach seeks to determine (predict) which areas are more likely to see criminal activity. The algorithmic system in these pursuits analyzes historical police data to identify geographical locations where crimes are, in theory, more likely to be committed. If this sounds familiar to you, then you’ve likely heard of, or accessed, the Vancouver Police Department’s GeoDash crime map – an online tool where you can navigate a map of the City of Vancouver by crime occurrence. You can choose from a variety of offences on the dropdown list, including homicide, break and enter, mischief, theft, and “offences against a person” which likely includes a variety of crimes such as sexual assault, assault causing bodily harm, and uttering threats. By looking at this map, you get an idea of which neighborhoods in Vancouver are most vulnerable to crime – except that it’s a little bit more sophisticated than that, and goes far beyond simply dropping a pin on the map. The public can see where the crime took place, but not who is alleged to have committed it. The offender’s personal information is logged, in as much detail as possible, and becomes part of a larger system dedicated to predictive surveillance – i.e., it creates a profile of which individuals are more likely to commit a particular crime. This profile can be used to identify people who are “more likely to be involved in potential criminal activity, or to assess an identified person for their purported risk of engaging in criminal activity in the future”.
While this information is definitely concerning, there is another issue: we have very little insight into the extent that this technology is being used. We know that the methods by which police gather information have historically discriminated against minority groups and those living in marginalized communities. This seems to guarantee that the VPD’s use of algorithmic investigative techniques relies on data that is often obtained through biased methods. We know that black and indigenous individuals are disproportionately represented in the correctional system, which can only mean that they are disproportionately represented in respect of these algorithms.
Although not everyone agrees that systemic racism exists within the VPD, the calls to address, unravel and mitigate the harm to marginalized groups continue to amplify. The idea that information collected under the apprehension of bias will not only remain on record, but will be used to further future investigations, is an indicator that Canadian law enforcement’s road to redemption will likely be a bumpy one.
by Jason Tarnow | May 20, 2020 | Crime, Criminal Attorney, Legal Aid, Legal Rights, Media, Police, Social Media, Wheels Of Justice
It goes without saying that the judicial system has been hit hard by COVID-19. This isn’t wildly surprising – there was no solid emergency response strategy in place for a situation like this, and as a result, a significant amount of time and resources have been expended to create a sense of control amongst the chaos.
It was acknowledged early on that certain individuals in the justice system would be disproportionately effected – accused persons in custody awaiting trial or sentencing, residents of remote communities that operate under a court circuit, and, of course, the victims in cases where there is uncertainty of if or when the case proceeds at all.
Since the World Health Organization declared a pandemic in response to COVID-19, law enforcement has tried to adapt where required. One of the most profound changes relates to the processing of newly accused individuals – and it may provide context into why intimate partner violence has surged during the pandemic. Between April 6 and May 6, 2020, 8 tragic incidents of domestic violence against women across Canada resulted in fatalities. There is, of course, no doubt about the fact that violence in relationships occurred before COVID-19, and will continue long after the pandemic is declared over – but there are aspects to a surge in intimate partner violence that are directly linked to the virus and to the policies that have been implemented when trying to process, manage, and supervise offenders.
Hundreds of accused persons awaiting trial in custody have been released, with chargeable offences ranging from assault, fraud, drug trafficking and beyond. Again, not surprising – as we’ve discussed previously on the blog, the correctional system serves as the perfect breeding ground for the virus, and it would be beyond cruel and unusual to take no action at all to protect those that are considered to be among the most vulnerable.
It’s the way that law enforcement has chosen to operate on a “catch and release” scheme in cases that would, under normal circumstances, require a bail hearing – and probably a highly contested one at that – that has likely contributed to domestic violence rates during COVID-19. Due to concerns about the nature of the virus and its ability to spread quickly, bail hearings have occurred less frequently, even with video-conferencing and telephone conferencing put into effect to streamline the process and protect the health of all parties involved. Instead of a bail hearing, an accused is more likely to be released on an Undertaking. The Undertaking may require that the accused check in with a bail supervisor weekly – something that is generally done on an in-person basis, where the most value lies in a face-to-face meeting – by telephone instead.
Aside from that, the “stay at home” order has, unintentionally, resulted in many victims of violence becoming prisoners in their homes. Public services like shelters and safe houses are stretched beyond capacity, and for some (especially people with underlying health conditions and people with children) entering into such an environment during a virus pandemic might seem even less tolerable than continuing to cohabitate with their abuser.
As with the other aspects of our lives – returning to work and school, chatting with our neighbors, planning vacations – the judicial system will, in one way or another, return to full operational capacity. But for those who have suffered the effects of intimate partner violence during the pandemic, there may be no return to the way things once were.
by Jason Tarnow | Feb 11, 2020 | Crime, Criminal Attorney, Media, Police, Riots, Social Media, Wheels Of Justice
“Not only is this a concern with the possibility of misidentifying someone and leading to wrongful convictions, it can also be very damaging to our society by being abused by law enforcement for things like constant surveillance of the public”
– Nicole Martin, Forbes contributor
Star Trek. Back to the Future. District 9. I, Robot. These are only a few examples of films that have relied on biometrics – more commonly referred to as Facial Recognition – as a theme for entertainment. All are fiction based and while you may have thought of biometrics as a tool used by elusive government agencies like the FBI and CIA, that isn’t the case at all. Advancements in biometric technology have been seized upon by various law enforcement and government agencies across Canada – creating serious concerns from privacy and civil liberty advocates, and of course, criminal defence counsel.
The Calgary Police Service began using Facial Recognition technology in 2014. The system they use, known as NeoFace Reveal, works by analyzing an uploaded image and translating it into a mathematical pattern known as an algorithm. The image is then logged in a database and used for comparison against other uploaded images.
The Toronto Police Service hopped on board too. They reported uploading 800,000 images into their Repository for Integrated Criminalistic Imaging, or RICI by 2018. Their use of biometrics began with a trial in 2014, and in 2018, the Service purchased a system at a cost of about $450,000. Between March and December of 2018, the Toronto Police Service ran 1,516 searches, with about 910 of those searches (or 60%) resulting in a potential match. Of those potential matches, approximately 728 people were identified (about 80%). There were no statistics provided in relation to ethnicity, age, or gender, however, research has raised concerns about disproportionate effects of biometrics as it relates to people of color.
Manitoba Police do not currently use biometric technology as an investigative tool, although the idea was floated around in 2019 after the commission of a report concerning growing crime rates in Winnipeg’s downtown core. The Provincial government in Manitoba went so far as to suggest that this technology could be used to identify violent behavior – which sounds a lot like active surveillance, an unethical use of biometrics, which demonstrates one of the most profound concerns surrounding use of this technology. And while it is only a matter of time until the Manitoba Police do use this technology, many retailers in the province are already using it.
At home here in British Columbia, the Vancouver Police Department denies using Facial Recognition technology as a mechanism to investigate crime – in fact, back in 2011, they turned down ICBC’s offer to assist in identifying suspects involved in the Vancouver Stanley Cup Riots with the aid of their software. The office of the BC Privacy Commissioner confirmed that any use of ICBC’s facial recognition data by the VPD would amount to a breach of privacy for its customers.The office of the Privacy Commissioner of Canada has been keeping track since at least 2013 – yet, there is little regulation of the use of biometrics in public and private sectors.
The same cannot be said for the RCMP in British Columbia, who, as recently as two weeks ago refused to confirm or deny use of biometrics as an investigative tool, but questions have been raised as to whether or not the RCMP is a client of Clearview AI, a facial recognition startup pioneered by US citizen Hoan Ton-That. Clearview’s work has not gone unnoticed – Facebook and Twitter have issued cease and desist letters, making it very clear that they do not support Clearview’s objectives. Google issued a cease and desist letter as well – however, their position on biometrics is fuzzy – especially since they are trying to make advancements in this area as well. So far, though, they have come under fire for their tactics and the results that have been generated.
The Canadian Government’s position on the use of biometrics is established on their website. When you submit your biometric information at Service Canada (for example), your information isn’t actually stored there, rather, it is sent to the Canadian Immigration Biometric Identification System, where it will remain for a period of 10 years. Further, your biometrics information will be shared with the United States, Australia, New Zealand and the United Kingdom. And yes – you can refuse to provide this information – but it will likely put a kink in your travel plans.
One important factor to consider about all of these agencies and their use of biometric technology is that this tool was never intended for use as active surveillance, or a method to intervene in incidents of crime in real-time. Whether it is a violent assault, sexual assault, theft under or over $5,000, murder or kidnapping, biometrics is an “after the fact” investigative mechanism. If used ethically and within parameters that preserve the privacy of all citizens 100% of the time, perhaps there would be no need for alarm – but that is incredibly unlikely. As more agencies begin to use this technology, the lack of regulatory oversight is bound to create an enormous pervasion of your privacy – and you may never know about it.
