by Jason Tarnow | Apr 15, 2016 | Crime, Criminal Attorney, Legal Rights, Media, Police, Wheels Of Justice
A man from Saanich, B.C., has learned that he will not face charges of sexual assault stemming from complaints received from 4 women.
The man was arrested and a criminal investigation was pursued by RCMP and several senior Crown prosecutors. Upon reviewing the available evidence, assessing the credibility of the complainants, and considering possible defences that could be raised by the Accused, Crown Counsel determined that there was not a substantial likelihood of conviction, and announced that no charges would be filed.
The charge assessment standard of Crown Counsel takes many factors into consideration when deciding whether or not to lay charges. With respect to sexual assault cases, there are many important elements to acknowledge – failure to do so can result in charges that are ultimately stayed, or receive an acquittal at Trial. The stakes are high both for the Accused and for the complainants.
On the part of the Accused, being formally charged with sexually related offences is much more than simply embarrassing: it can result in the loss of employment, the breakdown of relationships, and can destroy the Accused’s’ reputation in general – even before the case has gone to Court. Once charges have been laid, it seems that notion of “innocent until proven guilty” is thrown out the window. A stay of proceedings, or a trial that results in an acquittal, is met with rage and disgust from the public.
On the part of the complainants, it is well known that going to Trial is a stressful and potentially damaging experience. Testifying and being cross examined can be disturbing – recalling horrific memories is emotionally and mentally harmful. Since there is never a guarantee to the complainant that the Accused will be convicted, it seems logical that a well advised complainant would only want to go through such an ordeal if there was a substantial likelihood that the Accused would be convicted.
In this case, the Crown determined that there were a number of operable defences that could be raised by the Accused, including the honest, but mistaken belief of consent.
The identity of the Accused person will remain uncirculated by the media for privacy reasons.
The number of sexual assaults in Metro Vancouver, and in particular, Surrey, have increased exponentially over the past few months. Many of the attacks have taken place in broad daylight, in high traffic areas such as the Vancouver UBC campus. The brazen nature of the attacks is extremely concerning to authorities.
Individuals charged with these offences are encouraged not to proceed self-represented – this area of law is extremely complex, and the penalties are significant. Being convicted can result in mandatory jail time and requirement to register as a sex offender, and other serious lifelong consequences. If you have been charged with any sexually related offences in British Columbia or the Yukon Territory, don’t hesitate to contact David or Jason Tarnow for your free, confidential consultation. Aside from providing legal advice with respect to your criminal charges, our lawyers will be able to help (if it is your desire) refer you to programs and treatment options to address any underlying issues that may have led you to the situation you have found yourself in.
by Jason Tarnow | Feb 26, 2016 | Crime, Criminal Attorney, Legal Rights, Media, Police, Politics, Wheels Of Justice
Apparently, the truth is stranger than fiction, even when it’s like something straight out of George Orwells Nineteen Eighty-Four: injectable GPS tracking devices for notorious criminals.
That’s what Williams Lake City Council members voted on this week – unanimously. With a population of roughly 14,000 people, the community is now grappling with serious, unrelenting criminal activity. The Canadian Federal government keeps track of the statistics with respect to crime in municipalities across the country, sourced from Statistics Canada Crime Severity Index. While no one was surprised to see Williams Lake make the list (it has for many,many years) there was new concern this time around when the city was ranked at the top of the Index. Concern escalated when this past Monday, surveillance captured 2 males stealing another males bicycle at gun point in broad daylight. The brazen nature of the crime set alarm bells sounding.
It has been reported that out of the community of roughly 14,000 people. Between 20-100 of them are known to police as being prolific offenders – that is, individuals who are frequently at odds with the law. On paper, Williams Lake RCMP have 13 local residents on their prolific offender list, 7 of whom are currently behind bars. The rest are being closely monitored.
City Councillor Scott Nelson was quoted saying “For the privacy of few who don’t even believe in law, we need to use the technology to the benefit of the society as a whole,” when defending the Council’s unanimous vote for injectable GPS trackers. Indeed, having a GPS device located on an individual who is a high-risk to re-offend would probably result in peace of mind for a community ravaged by crime – but it comes at a high cost to a society that is increasingly leery of police presence.
As it stands, there is no legal authority for the use of injectable GPS tracking. GPS monitoring for other Canadian offenders is tightly regulated and requires judicial authorization. Civil liberties lawyers have responded to the Williams Lake City Council by advising that there is little to no likelihood that such a system would ever be found to be constitutional.
For now, Williams Lake will have to rely on good old fashioned police work and vigilant, community minded residents to do their part in keeping the small northern town safe.
by Jason Tarnow | Feb 12, 2016 | Crime, Criminal Attorney, Legal Rights, Media, Police, Politics, Wheels Of Justice
When a defence lawyer gets a new file that involves the search and seizure of evidence from their client, the first thing they will want to investigate is if the search was lawful. An unlawful search can often result in evidence being excluded from Trial. Laws surrounding search and seizure are ever-changing, but the fundamental rights laid out in our Canadian Charter of Rights and Freedoms are enduring. Section 8 of the Charter protects Canadians from unreasonable search and seizure, which means that police are often required to obtain a warrant (judicial authorization) before proceeding to collect any evidence they wish to use at Trial.
There have been several pivotal developments in this area of the law recently, one coming from the Court of Appeal. Rodney Fedan of Kamloops, B.C., lost the appeal of his dangerous driving causing death conviction after he argued that his Charter rights were violated when RCMP collected information from his truck’s “little black box” without a warrant. The little black box I am referring to is known as a Sensing Diagnostic Module (“SDM”); they are commonly installed by manufacturers in passenger vehicles. Their main purpose is to monitor the condition/deployment of the airbags, but they have become increasingly more intelligent over the past decade, and are coveted by accident re-constructionists for the data they record and store. Re-constructionists can download the data from the “little black box” and use it to develop insight into the nature of a motor vehicle accident. In Mr. Fedan’s case, the 5 seconds of data recorded by the SDM immediately preceding the crash (which is generally all they record) was all that was needed to prove that Mr. Fedan was travelling at approximately 106 km/hour when he veered off of the winding road he and his passengers. The ensuing accident resulted in the death of 22 year old Brittany Plotnikoff and 38 year old Ken Craigdallie.
Fedan argued that his reasonable expectation of privacy was breached when RCMP officers seized the data from his SDM without a warrant. Unfortunately for him, 3 B.C. Court of Appeal Judges disagreed when they held that the Supreme Court Judge was reasonable in allowing the material into evidence at Trial.
It is crucial to note that Mr. Fedan was not aware that the SDM was capable of downloading and storing data that would be useful to the RCMP in such an investigation. Since he had no knowledge of the data’s existence, he could have no reasonable expectation over its privacy. This is in stark contrast to the level of privacy a person would expect to have over the information stored on their computer or cellphone – warrants are generally required to seize and search these devices (unless searching them is considered to be incidental to arrest).
When the case was originally heard in October 2014, Mr. Fedan was sentenced to 3 years in jail and was banned for driving from 3 years. He was not convicted of impaired driving after the blood samples obtained were ruled to be inadmissible.
Impaired driving cases are complex, and are taken extremely serious by the police and the Courts. If you are facing charges related to drinking and driving, contact Jason and David Tarnow for a free consultation. Our office is conveniently located in central Richmond, easily accessible from anywhere in the lower mainland.
by Jason Tarnow | Apr 9, 2015 | Wheels Of Justice
In a move that has lawyers and legal advocates cringing, the B.C. Government announced its plan to move ahead with the eradication of Traffic Court in the Provincial Court system. But what does it mean for you?
As it stands today with the “old system”, any individual who is given a traffic citation (violation ticket) has the right to dispute the allegation in Court before a Provincial Court Judge. At their hearing, one may hire a lawyer to represent them, tender evidence, and present witnesses. It also provides an opportunity for the Accused person to confront their Accuser (in this case, the police officer(s) who issued the ticket) and cross examine them on their evidence. It is a perfect illustration of how the adversarial system – essential to the administration of justice in common law – works, and has worked over the past hundreds of years. Unfortunately, it is soon to be a thing of the past.
The proposed new system involves diverting traffic matters to an adjudicatory body, similar to the one that handles Immediate Roadside Prohibitions. Here’s a breakdown of how the new system will work:
1) Police will now issue tickets via an online “e-ticketing” system, which will also be used for payment
2) Disputes will first be handled by the Office of the Superintendent of Motor Vehicles. Offenders will be offered incentives to plead guilty (a reduced fine, time to pay, etc)
3) If you decide to proceed with your dispute, you will be directed to the Driving Notice Review Board. You will have a pre-hearing date where you will be required to submit any evidence you will be relying on to supplement your argument. Then, you will have your hearing before the Driving Notice Review Board (either in person, over the phone, or by writing). The Board will consider your evidence and the officer’s evidence and will render a final decision. Once that decision has been rendered, there is no opportunity for appeal or judicial review.
What it boils down to is citizens being stripped of the right to their day in Court. The fact that there is no opportunity for review is one of the most frightening things – and it ties in perfectly with the Ministry of Justice’s explanation that the new process will encourage “system efficiencies”. Obviously if you cut out an entire part of the process, things will move at a quicker pace.
All in all, the Government’s scheme to save money comes at a dire price for the citizens of British Columbia, and I can’t help but wonder – what are our rights worth?
by Jason Tarnow | Aug 15, 2011 | Riots, Wheels Of Justice
In my last post, I briefly touched upon what was unfolding in the U.K. and the rioting that was spreading from London to many more of that country’s major cities. The violence and looting that was broadcast to the world was shocking to many. There were hundreds of reported arsons, thefts, burglaries, assaults, and even murders. David Cameron, the Prime Minister, and many other politicians made strong statements to the media on how order will be restored and those found to be responsible for these crimes will feel the full effect of the law. We heard similar cries from British Columbia’s politicians when Vancouver experienced its riot 2-months ago. However, what I found intriguing was the speed at which justice has been delivered in the UK compared to what was have seen in Vancouver.
In London, as the riot raged out in the streets, the courthouses remained open throughout the night to deal with those individuals charged with riot-related offences.There were bail hearings held and guilty pleas entered. And the sentences were heavy. However, In Vancouver, we have yet to have a single person charged with a riot-related criminal offence. This is quite perplexing to many when we have heard of people turning themselves in to the Vancouver Police admitting to their criminal conduct in the riot. Why would it take so long for rioters in Vancouver to be charged, especially when many have admitted their guilt to the police?
There is one significant difference between the manner in which charges are laid in Canada versus the U.K. that may explain the speed of justice delivered in each country. In Canada, police investigate a crime then make their recommendation of charges to Crown counsel, who then have to decide whether to approve the charges based on the evidence the police have gathered. In the U.K., police themselves lay the charges. It appears to be a much quicker, or streamlined process.
However, there is growing debate as to which country’s system is better, or more efficient. The general public in both countries wants to see rioters face swift and significant repercussions. In Vancouver, the passage of time with no charges laid has left the public wondering if our justice system is broken altogether. The Vancouver Police have said that they are still sifting through mountains of photos and video to ensure they have a careful and complete body of evidence for those whom are eventually charged. Vancouver citizens hear of how rioters have been dealt with in the U.K. and they are wondering why it is so remarkably different. But in the U.K., the Law Society has now warned judges to “not hand down rushed justice“.
Which system do you think is better: one that is swift and immediate or one that is more cautious and takes more time?
I think the swifter U.K. version provides greater immediate deterrence to the public but I also think that B.C.’s slower, more cautious system provides the justice system with a ‘sober second thought’ on how to properly sentence those before the courts. There are pro’s and con’s to each. I hope both countries can learn from one another and make improvements to each of their justice systems.
