Not a day goes by when we do not read stories about the carnage that fentanyl is wreaking on our communities. The BC Court of Appeal has issued a stern warning for those who traffic in fentanyl: the starting point for sentencing is a jail sentence in the range of eighteen months. And given the evidence and attention about fentanyl deaths, it’s hard to cry foul at these guidelines.
As a result of the severe consequences of fentanyl trafficking, the BC Government has been repeatedly asked about what they are doing to address the situation. Some have suggested a pro-social approach, enhancing opportunities for rehabilitation for drug users. Others have pointed to studies that have shown that decriminalizing hard drugs actually leads to a decrease in deaths associated to those drugs. Others still think the answer is to arrest all the traffickers, round them up, and throw them in jail.
The Minister of Justice for Canada is currently conducting a survey about mandatory minimum sentences. On its face, this appears to be a small effort to obtain input about whether mandatory minimums are effective means of addressing criminal offences, and how to best allow judges to achieve the goals of sentencing.
However, the survey raises broader concerns about the efficacy of this proposed method. The options to choose from for appropriate sentences are limited, and the mechanisms proposed clearly show that Jody Wilson-Raybould has already made up her mind about how sentencing reform is to be achieved in this country.
The survey is, in my view, an effort to garner support for a process she has already decided to implement under the guise of engaging in public consultation.
I have concerns about what is apparent the Government wants to do. And I will outline them in this post. But I also want to implore you to take the survey, and have your views heard in the comment sections.
Here’s the link: https://surveys.ekos.com/ekos/cwx.cgi?_proj=07417SW&_lang=EN
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?
As of June 18, 2015 it's official: the Federal Government has passed the Victims Bill of Rights and it has been made law by Royal Assent. While there are compelling reasons to ensure that victims in a criminal trial process are heard and had a voice, the manner in which it was achieved by Parliament is not something that I believe is effective or consistent with a fair, just, and free and democratic society. The Bill functions to eliminate the rights of those charged with an offence, in favor of adding rights to victims.
Today we heard the first sentence to be given out in the Robert Dziekanski perjury trials. Constable Kwesi Millington and Corporal Monty Robinson were convicted of perjury, while their fellow officers Constable Bill Bentley and Constable Gerry Rundel were acquitted after trial. The Court sentenced Constable Millington to 30 months of jail time.
The sentence has surprised many, because it is a lengthy jail term for someone who previously had no criminal record or history of criminal behaviour. Many people have wondered why such a significant jail term was handed down in these circumstances, while arguably more serious offenders are given shorter jail sentences or even no jail.
In my last post, I discussed the changes to the BC Motor Vehicle Act that were underway. As expected, the legislation passed. Many of the changes the Government touted as positive have already come into effect, including the left-lane hog aspects of the changes. The Government made a big deal out of announcing this when it happened. But there were also changes slowly implemented that Government hasn't advertised to the public. These are the changes to the drinking and driving legislation.
An article was published on the CBC website this week, suggesting that impaired driving incidents are not properly declining due to "loopholes." Frankly, as a lawyer who deals primarily with impaired driving cases, I found this article to be offensive and ill-informed. I want to use this blog post to address some of the most concerning aspects of this article, and the opinions quoted in it.
What is a loophole?
A loophole is different from a defence. Wikipedia defines a loophole as "an ambiguity or inadequacy in a system, such as a law or security, which can be used to circumvent or otherwise avoid the intent, implied or explicitly stated, of the system." The point of a loophole is to contravene the intent of a law, without technically breaking the law. Think of it as following the letter of the law, but not its spirit.
This is the second part in my series on the consequences of a traffic ticket in British Columbia.
It should come as no surprise to anyone that traffic tickets in British Columbia come with financial consequences. However, understanding the financial consequences of a traffic ticket in British Columbia can be complex and confusing. The fine listed on the ticket is often not the end of what you will have to pay as a result of receiving a ticket.
Everyone knows there is a fine for a ticket. The fines you pay are standardized by ICBC, which means that unless the officer exercises discretion to increase or decrease the fine, you will pay the amount pre-determined by ICBC. Oftentimes, however, the fine listed on the ticket is not the minimum fine for the offence.
Mandatory minimum fines for traffic offences are determined by the Offence Act Violation Ticket Administration and Fines Regulation. If you are wondering whether you are eligible for a fine reduction on a traffic ticket, you can consult this regulation and cross-reference the offence on the ticket with the offence listed to see what the minimum is. A court has no discretion to lower the fine beyond what is set out in this Regulation.
You can however, ask the Court for more time to pay a ticket if you are unable to afford the fine. If you do not dispute a ticket, the ticketed fine is due 30 days after the ticket has been issued to you.
I have often seen officers coax self-represented litigants in traffic court into pleading guilty on the promise that they can seek a fine reduction. You should be wary of this. Many officers may not know the minimum amount, or they may be lying to you to convince you to plead guilty. The police do not have to tell you the truth. They are allowed to lie to you to further their investigation.
This is frustrating to witness as a lawyer, because I know that these people are making a decision without being armed with all the information. This is why an experienced traffic lawyer can assist you in defending yourself against a traffic ticket.
The Offence Act allows a maximum fine of $2000 for any Violation Ticket. There is no discretion to increase the fine to anything beyond this amount.
I often receive calls from clients who are concerned that if they dispute their traffic ticket the fine amount could go up. This cannot happen, unless you expressly agree that you are willing to pay a higher amount. Even then, some Judicial Justices of the Peace will not increase the fine beyond what is listed in the ticket.
This issue was considered by the Court of Appeal in R. v. Miner. There, Mr. Miner had pled guilty in traffic court and the Justice of the Peace fined Mr. Miner $400, despite the fact that the ticket listed only $100 as the fine amount. The Court determined that this was wrong, and the JJP had no jurisdiction to do so, stating:
In the absence of language which would clearly support the position of the Crown, I would be loathe to accede to its submission where the effect of that submission is that the offender is lulled into thinking, by the words of the violation ticket, that insofar as any fine goes, it will be "as prescribed", being $100. In my opinion, the only rationale for not advising the offender that, if disputed, the fine could be higher than the "prescribed fine", is that it was not intended that the fine on unsuccessfully disputing the violation ticket could be other than the prescribed fine shown on the ticket itself.
So if you are wondering whether the fines can double or increase because you disputed your ticket, know that in British Columbia this cannot happen.
If you are involved in an accident and damage is caused to property, you may be ordered by the Court to pay restitution. This is effectively repayment of the damage caused. It is unusual to see Restitution Orders, which are typically attached to a Probation Order, in traffic court because insurance will often cover this type of damage.
Victim Fine Surcharge:
Every fine amount listed on your ticket includes something called a Victim Fine Surcharge. Section 8.1 of the Victims of Crime Act indicates that any fine payable is subject to this surcharge. In British Columbia, the Victim Fine Surcharge is 15% of the fine amount.
The amount listed on the ticket includes the surcharge, so you are aware of the total amount owing when you are issued the Violation Ticket.
Many people do not understand the surcharge, particularly in traffic cases where there is no readily identifiable “victim” of the poor driving. The money obtained from these surcharges is not paid to victims of crime or offences directly, but rather is paid into a special account. The Attorney General may then determine how the money is to be distributed and applied in the Province.
Driver Penalty Point Premiums/Driver Risk Premium:
I will discuss these premiums in detail in a later post, as they are somewhat confusing and deserve special attention. However, the short version is that some traffic tickets qualify for Driver Risk Premium charges, assessed yearly over three years. If you receive more than three points in a one-year period, you will be required to pay the Driver Penalty Point Premium.
You can review the number of points associated with any given offence on ICBC’s website. There is also a chart listing which offences qualify for the Driver Risk Premium.
License Reinstatement Fees:
If you are given a driving prohibition by the Court, or a driving prohibition is issued to you as a result of receiving a traffic ticket, you will be responsible for paying the license reinstatement fee charged by ICBC. This is a $250 fee, issued to anyone anytime their license is suspended and then reinstated. You will not usually be informed of this when you are issued the driving prohibition, so it can come as a surprise to many people when they go to renew their license.
In order to renew a suspended license, you are required to pay off all outstanding debts and money owed to ICBC for everything listed above.
As happens every so often, a Member of Parliament has brought a Petition to Parliament requesting stricter penalties for impaired driving offences which result in death. The one before Parliament at present is known as the Thomas Petition, after an individual who was killed by an alleged impaired driver. It isn't unheard of, and it's probably unlikely to have any impact.
Personally, I disagree with mandatory minimums for these offences. But I particularly disagree with mandatory minimums in excess of that set out for the impaired driving simpliciter offence in cases resulting in death or injury.
The mandatory minimum penalty for impaired driving is a $1000 fine and a one-year driving prohibition. In cases where there is a death, the potential exists for life imprisonment. It is rare to see cases where individuals aren't sentenced to some lengthy term of imprisonment in cases of death. I mean, sure, we all heard about the individual who received 90 days in Chilliwack. But those sentences are the exception to the rule. Remember Carol Berner? She received 30 months upon conviction. Her sentence was appealed as being disproportionate, and was upheld on appeal. The Supreme Court of Canada refused leave to appeal the conviction.
The point is that the Courts of this country take these cases seriously. There is no need, in my view, to tie the hands of judges with mandatory minimums when the sentencing process is treated with the utmost solemnity and seriousness. Nobody in the justice system takes impaired driving deaths lightly. Sentences like the one imposed in Ms. Berner's case are upheld on appeal because they are within the range of sentences given to similarly situated offenders.
Jail time does very little to "solve" the problem of impaired driving. Just look at PEI, which has an informal policy of 3-day jail sentences on first conviction for impaired driving. And yet, they have one of the highest rates of impaired driving of all the provinces. And that rate of impaired driving incidents actually increased after the policy was implemented.
The goals of the sentencing process, as set out in Section 718 of the Criminal Code are not very well-served. Sure, general deterrence may be met. But nobody who drinks and drives sets out to injure or kill people. It's a by-product of the unlawful act that is generally not punished by jail time, and so jail sentences in death cases have little to do with deterrence from what I can tell. If PEI is any example, jail doesn't keep people from drinking and driving. Maybe it's the simply fact that alcohol impairs judgment, (See also: any Vine video, ever) which means that people who choose to get behind the wheel aren't necessarily thinking about the consequences. I think it's important to keep in mind that intoxication is a defence to most criminal acts (a notable exception being, of course, impaired driving.)
And so to bind the hands of judges, who see cases similar and different, and individuals of all backgrounds, with mandatory minimum sentences for the more serious impaired driving offences is something that really strikes a blow against the interests of justice. Judges are trained and capable of considering the particular circumstances of an offender and determining the appropriate sentence based on the principles of sentencing and the offender's circumstances. I trust that Parliament recognizes that, which is why these attempts to create mandatory minimums each time have failed.
I would trust, in any event, that there would be a Constitutional challenge to such provisions, similar to the recent challenge to the minimum sentence provisions for firearms offences.
EDIT: After writing this post, I found this story about a 10-year prison term for a man convicted of impaired driving causing death. The article, I think, highlights why this sentence was much longer than the average. And that, folks, is sentencing principles at work.
Vancouver Criminal Lawyer focusing primarily on DUI, impaired driving, and Immediate Roadside Prohibition cases.