Vancouver Criminal Law

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Criminal Law FAQ

Criminal Law Questions

Criminal Law Firm Acumen Law Corporation answers some of the most common questions put to Criminal Lawyers in Vancouver B.C.

What is a Criminal Charge?

A criminal charge is a formal allegation that a person committed a criminal offence as defined in the Criminal Code of Canada.  The laying of a criminal charge is typically the beginning of the court process, which includes disclosure of particulars of the allegation, a trial to consider the evidence put forward by the prosecution and defence, and a finding of innocence or guilt.

I received a 90-day IRP Immediate Roadside Prohibition. Should I dispute it?

Absolutely. You are deemed to accept the 90-day prohibition if you don’t file an Application for Review. Normally, when we obtain the Report from RoadSafetyBC, we can tell you whether you will win or lose on the review. We maintain a library of successful driving prohibition review decisions. If we win your IRP review hearing, you get your licence back immediately, your vehicle is released and the SBC Government pays for the towing and storage.

Do I need a Lawyer for the IRP Review Hearing?

The Government would prefer that you don’t have a lawyer, because they don’t want you to succeed. We have acted for hundreds of clients who received IRPs and all but a handful are back on the road without having to serve the punishment. The legality of the IRP law is still in question and a court challenge of the new scheme is underway.

Your odds of success are much better if you have a lawyer represent you at your hearing. There are several reasons to have us represent you for your hearing:

  1. We know the law and the defences
  2. We have records for most of the breathalyzers in the Lower Mainland
  3. We know how to identify if a breath tester is malfunctioning
  4. We have a massive library of previous cases, police documents and memos
  5. Only a lawyer has privilege.

When a lawyer makes submissions, his statements are not evidence. For example, if the Report does not prove that the client was a driver, the lawyer cannot be asked if their client was the driver.

The police left a message for me to call them back. Should I call them?

NO.  If you are a suspect in a criminal case, talking to police or simply returning their call may lead them to obtain evidence to use against you.  You should contact a Criminal Lawyer right away if you believe you are a suspect in a crime.

I blew “over .08” at the police station. Does that mean I’m guilty?

No. Our research indicates that breathalyzer results from the BAC Datamaster C instrument, used by the police in BC, may be inaccurate by as much as 100mg in 100ml of blood. Also, the police often violate the driver’s rights under the Charter of Rights in obtaining the sample. In most cases, depending on the type and severity of the Charter violation, the Court may refuse to consider the evidence of the breath sample.

Am I only allowed one phone call?

The Charter of Rights guarantees your right to counsel, i.e. to have legal advice from a practicing lawyer, and to be represented by a lawyer.  You are entitled to make reasonable efforts to contact a lawyer who you trust and who can provide complete legal advice.  You may make however many phone calls you need to contact your lawyer of choice, provided your attempts are genuine.

What is a Criminal Record?

A Criminal Record is a record held by the RCMP of criminal convictions for each individual who has been convicted of a criminal offence and not discharged by the court. Although they are not criminal records, conditional discharges are recorded in the same system, but purged from the record 3 years from the completion of the sentence, i.e. 3 years from when the conditions are fulfilled. The record typically contains the name of the individual, their history of criminal convictions, their date of birth and their personal characteristics.

I’ve been contacted by the police. Do I need a lawyer?

If you are a suspect in a crime, the police will usually attempt to contact you to obtain evidence to use against you in court.  Only lawyers can provide the protection granted by solicitor-client confidentiality.  A lawyer working for you can deal with the police for you, and discuss your case off the record.

 

A lawyer can’t be compelled by the prosecution to give evidence against you. Unlike your dad, relatives or friends, only lawyers have solicitor-client privilege to protect you from the police.

Can the police arrest me at work or school?

Yes. Sometimes this is a technique the police use to gain information to use against you. To deal with this threat we contact the police before you’re arrested to protect you from the humiliation of a public arrest.

What is a Roadside Breath Test?

The police may demand that a driver provide a sample of their breath into an Approved Screening Device (ASD). In BC the device is usually an Alco Sensor IV DWF Screener. The ASD is usually set to display “fail” if a person provides a sample over .100 mg%, “warn” if a person blows between .06 and .099 mg% and the actual blood-alcohol concentration in the event that the person blows under .06 mg%.

What if I blow a “Fail” at the roadside?

In BC the police have the option of either issuing you a 90-day IRP Immediate Roadside Prohibition or detaining you for a criminal investigation. Since September 20, 2010 the police in BC are almost exclusively issuing 90-day IRPs and not conducting criminal investigations. Although it is not a crime to blow Fail at the roadside, the new IRP punishment is the close equivalent with even harsher consequences. Historically blowing Fail at the roadside into an Approved Screening Device (ASD or “roadside tester”) carried no punishment, but the police could then detain you for a criminal drinking-driving investigation. A “Fail” in conjunction with other evidence, may permit an officer to make a demand for samples to be taken to determine the concentration of alcohol in a person’s blood.

What if I blow a “Warn” at the roadside?

Depending on your driving record, you will be issued a 3, 7 or 30-day driving prohibition which begins immediately. Your vehicle will be seized and you will be required to pay a fine. In the event that you receive a 30-day prohibition, you will be required to have an interlock installed in any vehicle you drive and you must take a course called the Responsible Driver Program (RDP).

RoadSafetyBC mailed me a Notice of Intent to Prohibit me from driving. What should I do?

You have only 21 days from the date on the Notice of Intent to Prohibit to retain your lawyer and have him/her prepare and submit a written argument explaining why the proposed prohibition is wrong. It is important, therefore, to contact your lawyer as soon as possible to arrange for written submissions to be made to the Superintendent of Motor Vehicles/RoadSafetyBC. We have a proven formula to deal with driving prohibitions proposed due to an unsatisfactory driving record. Call us now for a free initial consultation.

What about mouthwash? I’ve heard it can beat the breathalyzer.

Most mouthwash contains alcohol. If you use mouthwash shortly before providing a Roadside breath test, (i.e. less than 20 minutes before) you may register a “warn” or “fail” on the test. In such a case the police may, in good faith, mistakenly issue you an IRP or arrest you and take you to provide samples to determine the concentration of alcohol in your body. Simply put, mouth wash may cause elevated results at the roadside.

Is there such a thing as “off the record” if I talk to the police?

NO. The police may not honour such a guarantee. The role of the police is to collect evidence which is commonly used by the prosecutor to prove their case. That is their job. Anything you say to the police usually will be used against you. It is a simple fact of the court process that statements made to the police almost never assist an accused. Because of lawyer–client privilege, a lawyer may have “off the record” conversations with the police.

Why do you know so much about the Breathalyzer?

Because at our law office we own all of the breath-testing instruments normally used in BC, and a number that have been used over the years. We have four ASDs, a Breathalyzer, two of the BAC Datamaster which is used at the police station and the equipment that the police use to calibrate and test them. We have all of the manuals. We have taken them apart to examine the components and the workings of the devices. In BC the police normally use an Alco-Sensor IV roadside and a BAC Datamaster at the police station. We have disassembled and analyzed the BAC Datamaster, examined how it works, and determined its weaknesses. We have observed these breath-testers produce inaccurate results and I know the reasons why they sometimes fail.

 

We exposed the problems with the Alco-Sensor IV to the media causing changes to the law in BC. We have a library of maintenance and testing records for most of the Approved Screening Devices in the Vancouver area as well as from police detachments in other parts of BC.

Is the Breathalyzer reliable?

We don’t trust them. In BC the police usually use an Alco-Sensor IV at the roadside and the BAC Datamaster C when back at the station. We have obtained reams of documents showing problems with breathalyzers in British Columbia, ranging from minor calibration errors to catastrophic malfunctions.

 

If the device is functioning properly in a controlled setting and all procedures are followed correctly, the results may be reliable. However, often the device in question is not functioning properly, and proper procedures are rarely followed. Our own research and tests indicate that breath tests are not necessarily reliable and may provide readings far in excess of the subject’s true blood alcohol content.

 

We have obtained and compiled a vast assortment of records on the breath-testing devices used in BC. Many of the breathalyzers have a history of providing inaccurate results and malfunctions. In our view, the courts should re-affirm that no one should every be punished on the basis of a roadside test. Unfortunately, right now in BC you can face the harsh punishment of an IRP based on an unreliable roadside breath test.

I’ve got a friend who is a cop. Should I call him?

No. Your friend has a job, which is more important to him than your friendship and besides, there’s nothing he can do to help you.  His job is to investigate crimes, so anything you say to him may be evidence used against you.  Call us.  We’re Criminal Lawyers and we know how to handle this.

What is CPIC?

CPIC is an acronym for the Canadian Police Information Center which manages a computerized database accessible to police officers throughout Canada. The database contains information about alleged offences, personal characteristics of suspects, cautionary warnings (e.g. Violent), a list of prior convictions and in some cases fingerprints. It is operated by the RCMP in Ottawa.

Can’t my dad phone the police for me?

Only a practicing lawyer has the power of solicitor–client privilege to protect you from the police. If you discuss your case with your dad, friends, relatives etc., they may become witnesses in your case. The prosecution can force them to testify against you. ONLY LAWYERS are exempt from the reach of the prosecution. A lawyer cannot be compelled to testify against their client.

 

Solicitor-client privilege is a principle of fundamental justice and so is protected under section 7 of the Charter of Rights and Freedoms.

What does ‘Beyond a Reasonable Doubt’ mean?

Beyond a reasonable doubt’ is the standard of evidence that is required to validate a criminal conviction in Canada. The Crown bears this burden and must prove their case to this standard. In other words, in order for a judge or jury to convict, the Crown must prove their case to the extent that there is no reasonable doubt left in the mind of a reasonable person that the defendant is guilty. A reasonable person is often described as an outside, objective observer. It is based in common sense and reason.

 

For further information on the meaning of Beyond a Reasonable Doubt in Canadian Law, please see:

 

R. v. Lifchus [1997] 3 SCR 320
R. v. W. (D.) [1991] 1 SCR 742
Boucher v. The Queen [1955] SCR 16
Criminal Code, RSB 1985, c C-46

What is a ‘Promise to Appear’?

When a person is charged with a crime, and subsequently released by police, they can expect to be given a piece of paper called a ‘Promise to Appear.’ This paper creates a legal obligation that requires them to appear in court on a specific date, at a specific time. The person must appear at that location, on that date and time, for their First Appearance Date. Alternatively, they can arrange to have a lawyer attend on their behalf. If the person named, or their lawyer, fails to attend as required, they can expect a warrant issued for their arrest. A Promise to Appear must be taken seriously.
If you have been issued with a Promise to Appear, you should contact legal counsel as soon as possible.

 

For further information on what is a Promise to Appear, please see:

 

JusticeBC – Criminal Justice Information and Support
The Canadian Bar Association – British Columbia
Criminal Code, RSB 1985, c C-46

Who brings criminal charges against a person in Canada?

In Canada, individual people generally do not charge other individual people with criminal offenses. Rather, a crime is seen as a societal issue, since all citizens have an interest in the preservation of the rule of law. Therefore, the government acts on behalf of individuals in bringing forward criminal charges. Police officers investigate when they have reason to believe that a crime has been committed. If they are satisfied that a crime has been committed, they will lay charges. In British Columbia the police recommend charges in their file which is forwarded to Crown counsel lawyers acting on behalf of the Justice Minister (A.K.A the Attorney General, A.K.A. Criminal Justice Branch, A.K.A CJB) of BC or to the Public Prosecution Service of Canada (A.K.A PPSC). There, a lawyer employed by the government will review the allegations and decide whether or not to proceed with the charge. Once the charge has been approved, the Crown counsel lawyer will act as an agent of the state and will represent the government in court.

 

For further information on Who brings criminal charges against a person in Canada, please see:

 

British Columbia – Ministry of Justice
Criminal Code, RSB 1985, c C-46

Where does criminal law come from?

In Canada, the federal government is solely responsible for all things criminal. This means that different provinces cannot have different criminal laws. The exclusive authority of Canadian Parliament to make criminal law is derived from the British North American Act, which was passed in 1867. Prior to 1867, all criminal law was inherited from English settlers in the form of common law. It largely remained this way until 1892, when the Canadian Parliament created the Criminal Code. The Criminal Code is a consolidated list of crimes, along with the procedures that address them, contained in a single document. It is a living document, which has been updated and amended many times over the last century.

 

For more information on this topic, please see:

 

The British North American Act, 1867, SS 1867, c 3
The Constitution Act, 1867, 30 & 31 Vict, c 3
Criminal Code, RSB 1985, c C-46

How can a criminal record affect my life?

Having a criminal record can seriously affect your future. A criminal record holds information on your past criminal activities, including any convictions that have been entered against you. A criminal record can tarnish your personal and professional reputation and can hold you back from many opportunities. For instance, employers are permitted to conduct a background check on potential hires to see if they have ever been convicted of a crime. You may not be considered for certain jobs or may be completely ineligible for certain fields of employment as a result of your criminal record. You may also have difficulty when traveling abroad. Many countries, including the United States, can refuse entry to visitors with a criminal record. If you are in danger of getting a criminal record, you should contact an experienced criminal lawyer as soon as possible. You can also obtain a certified criminal record check through the police.

 

For further information on this topic, please see:

 

Royal Canadian Mounted Police
BackCheck
British Columbia – Ministry of Justice

I have been charged with a criminal offense. How do I know what kind of evidence the police have against me?

Although you may be able to speculate, you will not know what kind of evidence the police have until the first appearance date. The first appearance date is the first day that you are required to attend court to address the allegation. On that date, either you or your lawyer can expect to receive the disclosure of the Crown’s case against you. This is called the initial disclosure package. It typically contains a police narrative, along with notes and statements from any witnesses. As your case progress, new disclosure might become available. You should not assume that the initial disclosure package contains all of the evidence against you.

 

For more information on this topic, please see:

 

Criminal Code, RSB 1985, c C-46

If I am arrested by police, what are my rights?

Every citizen has rights upon arrest. These rights are guaranteed under section 10 of the Charter of Rights and Freedoms.

 

Everyone has the right on arrest or detention:
(a) to be informed promptly of the reasons therefore;
(b) to retain and instruct legal counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

 

In other words, this means that the police must tell you the reason why you are being arrested immediately upon arrest and they must also tell you about your right to contact a lawyer. This must be a lawyer of your choice and the police must give you an adequate opportunity to contact that person. Finally, if the reason for your arrest is invalid, you must be promptly released.

 

For more information on your rights upon arrest, please see:

 

The Constitution Act, 1982, Schedule B to the Canadian Act 1982 (UK), 1982, c 11
R. v. Tremblay, [1987] 2 SCR 435
R. v. Suberu, 2009 SCC 33, [2009] 2 SCR 460
R. v. Greffe, [1990] 1 SCR 755
Section 10(a) – Right to be Informed of Reasons for Arrest by Graham Garton

Your success rate is really good — unparalleled in some respects, yet I checked around and your fees seem lower than most law firms. Why is that?

The practice of law has changed dramatically in the last decade. Governments have tried to weaken the authority and power of lawyers because we identify problems with their laws and stand in the way of their political agendas. The internet has made it so people no longer simply contact their dad’s lawyer, who in any event may not have been the best person for the job given their particular expertise. One consequence is that many law firms, particularly in big cities like Vancouver, Richmond, Victoria and Surrey have become more focused on certain areas of the law.

 

Not only are we focused on certain areas of the law, we are particularly creative in finding information, evidence and new ways to defend our clients. Traditions in law provide us with continuity and ensure stability in our society. However, as Governments exploit legal and technological changes to diminish our rights, we cannot simply be reactionary. Lawyers need to be progressive to respond to the changing landscape of the law and our society.

 

To that end, we review the traditional methods lawyers use so that we can discard the inefficient or ineffectual steps. We regularly review our own methods to determine how we can accomplish the best results for our clients at the lowest cost. Our methods work and so our fees are often lower than you might expect.

What the heck does “Acumen” mean anyway?

Acumen refers to the the ability to make good judgment calls and quick decisions, typically in a particular field of endeavour. Acumen comes from “acuere” which is “sharp” in Latin.

 

We’re sharp lawyers with good judgment who often have to make good decisions quickly.

We have provided this Criminal Law FAQ to help our guests with some quick answers to their legal questions. If we can be of assistance with any legal problem, particularly a criminal or driving matter, please give us a call at 604-685-8889.

 

If you require more information about a DUI in BC, simply give us a call or visit our IRP Law FAQ page.

 

For more FAQs about Criminal Law in BC, visit our Criminal Law FAQ page.

 

We are experienced criminal lawyers. If you have a Criminal Case in British Columbia, call us.

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