On Episode Five of Driving Law with Kyla Lee I sat down with Paul Doroshenko from Acumen Law Corporation. We talked about the changes to ICBC's Driver Risk Premium, which will increase premiums for drivers who are convicted of any high risk offences. And in the second half of the episode, I spoke with Acumen's Agnes Tong about how DUI convictions will impact your ability to enter Canada or remain in Canada as a visitor or Permanent Resident.
You can listen here, subscribe on iTunes, and tune in next week for another episode.
One of the biggest questions that defence lawyers have about marijuana legalization has to do with marijuana amnesty and sentencing. Individuals who possess marijuana for personal use are still being charged in Canada. Their charges are still going to court.
Despite the fact that the Government has announced their intention to legalize marijuana, people are still leaving court with criminal records for marijuana offences, and some are receiving jail sentences.
Frankly, I find this practice appalling.
There’s been a lot of perceived dismay ever since the Supreme Court of Canada released its Jordan decision last year. This case concerned whether the time it took between the charge laid against an alleged drug dealer and his trial was so lengthy that it was an unreasonable delay.
The Supreme Court ruled in favour of the accused. And from that decision, identified a new presumptive ceiling for what would constitute an unreasonable delay – 18 months for provincial cases, and 30 months for superior court cases. Since then, about 200 cases have been thrown out of court. The media are crying foul, pointing at the apparent injustice that alleged murderers, sexual deviants, drug dealers and child predators are being freed without being tried.
Back in 1975, the Supreme Court of Canada made a groundbreaking decision on drunk driving. The decision was about the admissibility of breathalyzer test results presented in court. In this decision, the Court held that breathalyzer results, even absent evidence the breath sample was lawfully obtained, could still be used in court to convict a driver for being over the blood alcohol limit, with this caveat: as long as the driver did in fact provide a breath sample, and a certificate of analysis was admitted into evidence.
In plain English, what the court was saying is that if you provided a breath sample, even if the demand for the breath sample was unlawful, the results of that breath test could be used against you in court.
Since then, courts across the country have gone back and forth about whether that decision remains good law or whether it's absolutely bonkers that unlawfully obtained evidence is somehow still admissible in court.
Charter Statement on Drunk Driving Laws: A perspective from someone who routinely litigates the Charter
It's troubling when the Government has to issue a public statement defending a law before the bill is event tabled for debate. When the proposed legislation is so flagrantly and blatantly unconstitutional, the Government is clearly scrambling to justify its existence before it is even passed. And so that brings us to the big drunk driving law news of the week: Jodi Wilson's Charter Statement on Bill C-46. My summary opinion is this: it's a stinking pile of nonsense.
Or, as one lawyer interviewed put it, "if a first year student wrote this, they would fail."
In my last blog post, I wrote about how the Government’s proposed changes to the drunk driving laws will reduce your defences by limiting the disclosure that is available to you. This week, I am going to write about another significant limit on your defences, and that is the fact that the Government is eliminating the defences related to when you drank, and when you drove.
By eliminating this, what we can see is that the Government wants you to have a criminal record for drinking and driving, even if you have done nothing wrong.
Canada’s so-called legalization of marijuana comes with several consequences, including the new framework for mandatory random breath testing roadside. But there are other significant consequences that still need to be unpacked in this legislation.
Today’s blog post is going to outline a few of the other problematic changes to the alcohol-impaired driving legislation, and particularly those that have received less attention. In this post, I am going to deal with one of the other significant changes: reducing the number of defences available to drivers. This will be part one of a two-part blog post on reducing the defences, as there is a lot to discuss here.
On Thursday, the Liberal Government revealed its plan for marijuana legalization. Surprising to many was the fact that the Liberals introduced this as part of an omnibus bill that makes amendments to other parts of the Criminal Code, including the impaired driving legislation. Omnibus bills were commonly criticized by them as tactics used by their predecessor to pass bad legislation. These proposed changes also hide some of the more disturbing aspects the Government has introduced in furtherance of its stated goal to legalize marijuana.
I am deeply disturbed by changes that the Government has proposed, in particular the proposal to conduct random breath tests of drivers.
Over the next few blog posts, I am going to share some of my views on this proposed legislation and why I believe it to be constitutionally deficient.
I recently wrote about entrapment and what counts as entrapment in traffic cases. I’ve been thinking a lot lately about entrapment as the Creep Catchers have bee present in several news stories.
It gets me wondering whether Creep Catchers cases may give rise to a defence of entrapment. I believe it might.
The theory behind entrapment is rooted in an abuse of process. Essentially, it is wrong for the state to coerce citizens into committing crimes, or to set out a plan by which they wind up committing an offence. As I described earlier, a morality test constitutes entrapment.
But where do groups like Creep Catchers fall on the issue?
I’ve written before about the process of appealing an unsuccessful Immediate Roadside Prohibition review decision. I conduct countless judicial review hearings in BC Supreme Court, and file innumerable Petitions to the Court. The majority of my appeal cases are resolved without having to make arguments in court, and in favour of my clients.
While plenty of the cases I take to court deal with routine issues, such as how an adjudicator resolves a credibility issue or their interpretation of the evidence there are a significant number of judicial reviews that I advance that deal with far more significant issues.
You may have read my recent post about my success rate in these types of cases. Part of the reason I won so many hearings in summer 2015 related to finding certain pieces of evidence that called into question numerous breathalyser calibration certificates. In order to respond to this, the police amended a standard form that was submitted for every hearing with declarative information indicating that what they said was correct.
What happened next was very interesting.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.