by Jason Tarnow | May 5, 2015 | Crime, Police
Ian Pumphrey, who was acquitted of the allegation that he was talking on his cellphone while driving, was in the Yukon Court of Appeal this week where an Appellate Court Judge ruled that he was indeed guilty of using a mobile device while driving.
In the Yukon Supreme Court, Pumphrey successfully argued that because his cellphone was wedged between his ear and shoulder, he technically was using his device “hands free”. The Crown appealed the decision of the Supreme Court Judge, and, when the case was heard in the Yukon Court of Appeal earlier this week, a Judge agreed with the Crown and found Mr. Pumphrey guilty.
The Judge stated that the Supreme Court Judge had erred when he ruled that he had no jurisdiction to interpret the ambiguous language of the Motor Vehicle Act. The Appellate Court Judge advised that it is the Courts duty to interpret language where it is unclear. He went on to say that in his interpretation, hands-free means “use without being held by the operator in any fashion”. He imposed a suspended sentence and one day of probation on Pumphrey. He also advised that he had wished to grant Mr. Pumphrey an absolute discharge, due to the work he had done in representing himself, but declared that he did not have the jurisdiction to impose such a sentence.
Bottom line: If you have to take that call, just pull over.
Link to story here: http://www.cbc.ca/news/canada/north/appeal-judge-convicts-yukon-man-in-hands-free-cellphone-case-1.3061799
by Jason Tarnow | Apr 17, 2015 | Legal Aid, Police
Ian Pumphrey was back before the Yukon Courts earlier this week to represent himself in an Appeal launched by the Yukon Government.
In January of 2015, the Honourable Judge Luther found that Pumphrey wasn’t breaking the law by talking on the phone while driving, having his cellphone suspended between his ear and shoulder. It is, of course, illegal to drive while talking on your cellphone in the Yukon Territory – however, hands free devices are permitted. Since Mr. Pumphrey clearly was not using his hands to talk on the phone, he was not in violation of any regulations of the Motor Vehicle Act.
The Yukon Government appealed Judge Luther’s decision before a Supreme Court Judge, saying that in dismissing the ticket, he took the meaning of “hands free” too literally.
Mr. Pumphrey is of the opinion that the Government’s appeal is a waste of time and money – that would be better spent clarifying the legislation. He also stated that he will be seeking $15,000 in compensation from the Yukon Government in relation to all of the time he has spent working on the Appeal.
The Supreme Court Judge reserved decision on the matter.
by Jason Tarnow | Apr 2, 2015 | Police
This week a Kamloops case made headlines across British Columbia where a 76 year old man was sentenced to jail for growing 150 marijuana plants. The judge had no discretion in what to sentence him to – there is now a mandatory minimum of 6-months jail for anyone found guilty of possessing 6 to 199 marijuana plants.
The story can be found here:
http://www.theprovince.com/news/year+grandfather+gets+mandatory+month+jail+term+small+marijuana+grow/10938062/story.html
Coincidentally, I was in Nelson, B.C. this week for a trial and before my trial commenced, I witnesses a 56-yr old man get sentenced for the exact same offence, though it was for 110 plants. The man had a young family and serious health conditions. The judge’s hands were tied and the man got 6-months in the bucket. It was very sad to see.
We are in very strange times here in British Columbia and all of Canada when it comes to our drug laws. Above B.C. we recently saw Alaska decriminalize recreational cannabis, and the same has happened below us in Washington state. Other American states have recently followed suit. The Americans have realized that their “war on drugs” does little to deter usage.
But Canada, under the Federal Conservative Gov’t, continues to enact laws that take away the discretion from sentencing judges but imposing mandatory minimums. The results are what we saw in Kamloops and Nelson – families being torn apart, judges having no/limited discretion in how/what to sentence people to.
Mandatory minimum sentences do not work. It didn’t work in the U.S. and why our Federal Gov’t has implemented them, after seeing how they failed down South, I will never understand. I chalk it up to fear-mongering and vote-getting. But the human cost is severe.
I specialize in defending drug offences and represent people all over Metro Vancouver, Richmond, Surrey, and all regions of British Columbia. Being charged with a criminal offence is daunting and can effect one’s employment and ability to travel.
by Jason Tarnow | May 18, 2011 | Police
Yesterday in the news there were various reports that the Liberal Government is abolishing the current police complaint scheme that has existed in BC and switching it to a system that is one where police complaints are investigated and handled by a civilian-led commission, rather than ‘the police investigating the police’. This is great news for British Columbia, though it a LONG overdue. (Story here)
I know and fully appreciate that police officers have a very difficult job. I think we can all agree on that. The individuals who sign up for this job also appreciate that they will be held to an extremely higher standard in the manner in which they conduct themselves – on and off – the job. But it is when police officers stray from this high standard of conduct and find themselves embroiled in controversial actions that could see their conduct as disgraceful (a term found in the Police Act) or even unlawful, is when we need to carefully consider how to handle the situation.
When a police officer is charged with a criminal offence (such as assault, uttering threats, possession or distribution of illegal narcotics, impaired driving etc) most usually a police force from a different jurisdiction other than the one the accused works for will handle the investigation and correspond with Crown prosecutors.However, criminal charges against a police officer are often coupled with a Police Act investigation that will determine (separately from the criminal process) whether the officer’s actions violated that high standard of conduct that not only the Police Act stipulates, but that we as citizens expect from our police officers.
When these Police Act investigations occur, they are conducted by senior officers, either from within the same detachment as the subject of the complaint, or sometimes (often due to public outrage in recent cases) farmed out to a police force in another jurisdiction in an (lame) attempt to give off the impression that the investigation is “independent”. Right.
The Blue Wall
I’m writing about this topic because I have seen firsthand how our current police complaints procedures have failed us. Miserably. I will describe a case of mine as an example of how “police investigating police” just doesn’t work….
My client JW was leaving a pub on a Saturday night in the Kitsilano area of Vancouver when a rather agitated sergeant (Sgt. DT) from the Vancouver Police Department came on the scene in his police car and began yelling and swearing at people to “hurry up and go home”. My client (and numerous other witnesses) tells me that Sgt. DT drove his police car up on the curb of the sidewalk, threatened people over his loudspeaker, then exited his vehicle and began using his police baton in a very threatening and intimidating manner towards people. Please understand that these people were simple leaving the pub at closing time and trying to make their way home by walking, waiting for rides, and hailing taxi cabs. Oh, and I have the CCTV video to prove it. (actual story is here: http://tinyurl.com/63kfmme)
On the video my client is seen walking down the street, texting on his cell phone, when Sgt. DT comes sprinting at JW, full speed, and cross-checks him in the neck with his baton, sending JW flying on to his back, hitting his head on the sidewalk. JW suffered only minor injuries. Luckily.
Now, as I said, we managed to secure the CCTV footage of the event. We have 30 minutes of tape that shows a peaceful area, calm and order. The only person who acted violently was Sgt. DT, who we later learned was a 23-yr veteran of the VPD. We were all shocked.
Sgt. DT was convicted of assault and the courts did their job in handling Sgt. DT’s criminal matters. I am not going to go into detail about that process. It is the Police Act investigation that is an absolute JOKE.
We filed a complaint with the Police Complaints Commissioner and learned that the person who would be in charge of the Police Act investigation would be Sgt. JK, a 21-yr veteran of the Vancouver Police Department. “You have got to be fucking kidding me?!” I said to myself AND the Police Complaints Commisioner – on numerous occasions.
So here we have a 21-yr veteran of the VPD investigating a 23-yr veteran of the VPD. These are two senior officers who have worked alongside one another for virtually their entire careers. And Sgt. JK assured me that “I am confident that I can do this in an unbiased manner”. I called bullshit from the very beginning. (and I was right…. )
This was a high-profile case. Everyone in Vancouver read about it in the papers and it was splashed all over the news, largely because we had the incident “caught on tape”. I kicked and screamed to the Complaint Commissioner that this investigation could not properly proceed in this way. They disagreed, and let the investigation continue….
This incident happened about 18 months ago and the VPD investigators asked for, and was granted, extension after extension in order to complete his report. I had basically thrown my hands up and given up all hope on this file, when I got a surprising call from the Complaint Commissioner. He said that Sgt. JK had submitted his Report for final approval and that the Commissioner felt that there were many oversights within it, witnesses not properly interviewed, basically, it was garbage. The Commissioner then decided that this investigation had to be switched to someone new……… so they handed it off to someone else, this new investigator was ALSO a member of the VPD. I hope that you can see the sarcastic smile of disbelief on my face while you read this.
So one VPD investigator couldn’t do the job properly of investigating one of his colleagues of a serious complaint, so the Commissioner handed it off to another person within the VPD to tidy it up. Police cannot and should not investigate themselves. It does not work. If bias does not actually exist, it sure gives off the impression that it does exist or that it COULD exist.
The investigation is still ongoing. With the change of investigators, the VPD got another extension. 18+ months later I am more convinced than ever that we need a civilian-based investigation scheme when complaints are levied at the police.
Why do you think of the liberals proposals to change the system to a civilian-led body?
