BC Criminal Law Blog: Surrey & Vancouver lawyers Marvin Stern & David Albert discuss British Columbia impaired driving, marijuana & drug charges

Supreme Court of Canada says deterrence not a factor that may be considered under the Youth Criminal Justice Act

Last week the Supreme Court of Canada ruled unanimously that the Youth Criminal Justice Act, as written, does not allow judges to increase a sentence for the purposes of deterring youth crime. The Court held that the legislature deliberately removed general deterrence or denunciation from the factors that may be considered by judges when sentencing young people choosing instead to focus on rehabilitation and tailoring sentences according to individual offenders. The Court was reviewing two cases involving manslaughter and assault causing bodily harm respectively. One of the decisions on appeal was a B.C. decision where the judge considered general deterrence as a “minor factor”. The SCC found she was wrong to do so.

Conservative Justice Minister Vic Toews responded by criticizing the legislation and vowing to review the Act to ensure that accountability and responsibility for serious crimes is enforced. What form that will take remains to be seen. For a recent article on the subject click HERE.

Bill C-19 proposes new Criminal Code offence for street racing.

On June 15th the federal government introduced Bill C-19, an Act to amend the Criminal Code (street racing) and to make consequential amendments to the Corrections and Conditional Release Act. The new legislation is aimed at providing harsh penalties for a number of driving-related offences including specific recognition of street racing as a separate Criminal Code offence and a factor that may be considered in assessing penalties for existing offences.

If the legislation is passed through Parliament in its present form, convicted street racers could get lengthy prison sentences and lifetime driving bans. The First Reading text of the bill is available on the Justice Department website.

Click HERE for an overview of the proposed penalties.

B.C. Gun Amnesty Announced for June 2006

Solicitor General John Les announced a month long, province-wide gun amnesty in B.C. yesterday. The amnesty will last for the month of June and is aimed at trying to collect some of the estimated 90,000 unregistered guns that are in the province. The B.C. gun amnesty follows on the heels of the announcement by the Federal Government on May 17, 2006 of a one year amnesty for non-restricted firearms (e.g., shotguns and rifles). For details about the federal program (which applies only to non-restricted firearms and does not apply to inviduals who have never held a firearms licence) visit the Canada Firearms Centre website.

The B.C. amnesty waives sections of the Criminal Code governing unauthorized possession of a firearm. However, it does not apply if the firearm has been used in the commission of a crime or to people detained or arrested by police in other circumstances. Click HERE to download a description of the B.C. program.

There are circumstances where the federal and B.C. gun amnesty programs do not apply. If you have questions or concerns regarding the proper procedure to follow to turn in unregistered firearms or about your rights and obligations if you possess an unregistered firearm you should seek proper legal advice to ensure your rights are protected.

Proposed mandatory minimum penalties and conditional sentencing reforms.

Mandatory minimum penalties (MMPs) and conditional sentencing reforms are currently working their way through Parliament highlighting the importance of defence counsel to ensure that people in Canada accused of serious criminal offences receive fair treatment and due process within the Canadian criminal justice system.

The MMP changes, as proposed, impose mandatory penalties for gun and weapons offences for both “use” (e.g., where a restricted or prohibited firearm is used in the commission of a crime) and “non-use” criminal activity including unauthorized possession, trafficking, and smuggling of restricted or prohibited firearms and ammunition.

Similarly, the conditional sentencing reform bill removes the possibility of receiving a conditional sentence for anyone convicted of a violent crime, serious or major drug offence or impaired driving causing death or bodily harm.

To read the May 4 press release on the proposed MMP legislation click here.

For the government’s backgrounder click here.

To review the announcement on the conditional sentencing reform bill click here.

For the backgrounder click here.

BC proposes changes to help municipalities shut down marijuana grow ops

A pilot project targeting Surrey grow ops last year has led to proposed amendments to the Safety Standards Act that, if passed, will give BC municipalities the power to identify and shut down marijuana grow ops in residential neighbourhoods through the tracking of unusual patterns of electricity use. The initiative is aimed at reducing fire hazards posed by improper electrical conditions. However, the proposed amendments also raise issues related to privacy and search warrants, specifically whether the changes will dilute current protections in place against unlawful searches. Click here for a recent CBC story including an interview with Surrey Fire Chief, Len Garis and the President of the BC Freedom of Information and Privacy Association, Richard Rosenberg.

Bill 25: Safety Standards Amendment Act, 2006

Press release on proposed amendments to the Safety Standards Act.

Harper confirms no change to penalties for possession of small amounts of marijuana

In addition, to promising tough reforms to Canada’s criminal justice system the PM also assured those in attendance at his address to the Canadian Professional Police Association (see yesterday’s post for audio link) that his government will not reintroduce legislation drafted by the Liberals to reduce the penalties for possession of small amounts of marijuana. Click here for a brief overview.

New PM Promises Serious Time for Serious Crimes

Prime Minister elect, Stephen Harper’s April 3rd key note address to the Canadian Professional Police Association re-iterated the Conservative party's campaign promises to get tough on crime. Harper's remarks revealed plans to impose mandatory minimum prison sentences for drug crimes, weapons offences and crimes committed while on parole, end conditional sentences for serious crimes (like weapons offences), and repeal the “faint hope clause” in the Criminal Code that allows a convicted person serving a life sentence to apply for early parole. The Prime Minister’s speech suggests that measures to toughen the federal justice system may not be far off.

New Lawful Access Bill expected in November raises concerns about expanding potential for surreptitious surveillance

The proposed Bill is anticipated to expand the types of “tracking devices” that police can use under warrant to include laptops, wireless internet connections, cell phones with GPS, and wireless digital assistances (like Blackberries). The potential for police abuse of their lawful access powers and the significant increase in access to the private lives of Canadians has caught the attention of civil liberties watchdogs including the federal Privacy Commissioner. Click here for a recent article.

For a thorough review of the current state of the law regarding police investigation powers and the changes proposed in the new Bill visit The Canadian Internet Policy and Public Interest Clinic.

SCC finds right to legal counsel not absolute for suspected drunk drivers.

The Supreme Court of Canada's ruling in R. v. Orbanski; R. v. Elias, 2005 SCC 37 endorses the use of roadside breathalyzer and sobriety tests as reasonable limits on the right to counsel of a person accused of drunk driving. The Court found that reducing the damage caused by drunk drivers constituted a compelling state objective and that the use of standard screen methods (like the breathalyzer) were both rationally connected to that objective and no more intrusive than necessary to meet it. It's early days yet but this decision highlights the imporantance of vigilence on the part of defence counsel to ensure that an accused's s.10(b) Charter rights are observed in the context of police administering a roadside screening test.

To read the full reasons for judgment click HERE.

Final phase of tougher drunk driving legislation in effect as of June 15, 2005.

As of June 15, 2005, BC drivers convicted of drinking and driving must complete a user-pay education and rehabilitation program before they will be allowed to drive again. The Province is also committed to bringing in user-pay interlock ignition programs which require a breath sample with zero alcohol in order for a vehicle to start. This more drastic measure may be imposed in cases where a driver has more than one DUI conviction.

Other provisions of the The Motor Vehicle Amendment Act (Bill 66) that came into force in late 2004 and earlier this year include:

December 13, 2004:
*Police can now immediately impound vehicles at the roadside for 24 hours where the driver receives a 24-hour alcohol related driving prohibition.

January 1, 2005:
*fines for driving while prohibited or suspended have increased from $300 to a $500 minimum and police are empowered power to impound vehicles for 60 days on a first offence and 90 days for a subsequent offence.
*Courts now have the discretion to consider the particular circumstances of a first drunk driving offence and impose jail time where appropriate.
*ICBC can now refuse to issue a driver's license if a person has outstanding fines for offences commited under the Liquor Control and Licensing Act.

January 17, 2005:
*New or learning drivers can no longer demand a blood test to challenge the results of a roadside screening device.
*Road side screening is now sufficient to meet the demand for a breath test to challenge a 24-hour prohibition on driving whereas before the test had to be conducted at a police station.

May 1, 2005:
*Immediate license suspension now occurs where a court imposes a ban on driving as part of bail conditions.

To read Bill 66 click here.

Refusal to honour accused's request for legal counsel leads to acquittal on drug and weapons charges in HMTQ v. Parmar

Recently, in a case involving charges for possession of prohibited weapons, the B.C. Supreme Court found that a failure by a police officer to honour an accused's request for counsel is a breach of the right to counsel protected by s. 10(b) of the Charter. In this case, that breach along with breaches of ss. 8 and 9 Charter rights led to the exclusion of evidence critical to the Crown's case against the accused resulting in his acquittal. Click here to read the Court's Reasons for Judgement in HMTQ v. Parmar 2005 BCSC 1247.

Impaired driving charges can be plea bargained.

The case of R. v. L. demonstrates that impaired driving charges do not always have to end with an accused suffering the stigma and consequences associated with having a criminal record, Mr. L. was charged with impaired driving and driving over .08 after blowing over twice the legal limit. The case was successfully plea bargained to a ticket of driving without due care and attention resulting in Mr. L. avoiding a criminal record and not have to serve a driving prohibition.

Importance of cross-examination by defense counsel emphasized by acquittal in assault case.

In R. v. P.S. and A. the accused were charged with assaulting a Peace Officer. They were alleged to have thrown a glass at an RCMP officer resulting in the glass "exploding" in the officer's face. After cross-examination of the officers at the scene, Judge Jardine found that the Crown had failed to prove its case against the accused beyond a reasonable doubt and they were found not guilty.

Cross-examination key to not guilty verdict in impaired driving case.

P.S. was charged with impaired driving, refusal to provide a breath sample, and police pursuit. Mr. S. was found not guilty of all charges without having to testify after the cross-examination of three RCMP officers involved in the case.

Unlawful search leads to acquittal in New Westminster cocaine and heroin case

In R. v. S., a judgment recently issued out of the New Westminster BC Supreme Court, Madam Justice Dillon ruled that the unlawful search of Mr. S. meant that a large quantity of cocaine and heroine found in the his pants at the time of the search had to be excluded from evidence available to the Crown. As a result, Mr. S. was acquitted.