Tag Archives: Kamloops lawyer

Getting off on a “technicality”: Criminal charges and your rights

Critics of Canadian criminal law sometimes complain about people getting off on a “technicality.” Usually the so-called “technicality” is that the police violated an accused person’s Charter rights. The prosecution often can’t use evidence that was gained that way. As a result the prosecution’s case falls apart. No surprise then, that your average person may think the Charter mostly protects criminals.

But what is the Charter, and what does it stand for?

The Canadian Charter of Rights and Freedoms is a guarantee that everyone in Canada has certain rights when dealing with the government. It’s such an important guarantee that it’s part of the Canadian constitution.

Basically, Charter rights are aimed at ensuring that we receive fair treatment at the hands of the government. Things like the right to call a lawyer upon being arrested by the police, or to expect that they won’t show up to search your home without a warrant.

Sounds reasonable, right?

I’ll bet that if you happened to be the one whose rights were violated you’d want to make sure someone was held accountable. That’s what the Charter does. It’s the legal means by which individuals like you and me can hold the government accountable for the rights we all enjoy.

Sure, when a judge tosses evidence in a criminal case because police violated rights of an accused it may mean a guilty person gets acquitted. But that’s only part of the picture. What most people don’t realize is that when judges uphold the constitution they’re protecting us all. It’s called the rule of law – that the law applies to everyone, including the police – and it’s one of the reasons we live in such a great country.

So talk to a criminal defence lawyer

You need an experienced, knowledgeable and skilled criminal defence lawyer in your corner when your liberty is at stake. Someone who isn’t afraid to hold the government accountable. Guilty or not, you need to have your rights protected and defended. It protects you. It protects us all.

5 questions to ask when hiring a criminal defence lawyer

If you’re facing criminal charges, who you hire to be your criminal defence lawyer is a crucial decision. Here are five questions to ask to help you chose the best criminal lawyer for your situation. The first 4 questions are for you to ask the lawyer. The last question is for you to ask yourself.

1. What percentage of your practice involves criminal law?

If the lawyer says less than 50 percent, you may be dealing with someone who dabbles in criminal law. The practice of law has become highly specialized. You wouldn’t want a doctor who specializes in foot problems doing surgery on your brain. If you’re facing criminal charges, you need a lawyer with a deep knowledge of criminal law and procedure.

2. How long have you been practising criminal law?

If the lawyer says less than five years, you may be dealing with a beginner. As in most things in life, when it comes to practising law, there really is no substitute for experience. The energetic young lawyer, fresh out of law school, simply won’t have the same level of knowledge or courtroom experience as the lawyer with 15 or more years of experience.

3. Have you done any cases involving charges like mine?

If you’re facing a particularly serious criminal charge, you may be served best by a lawyer who specializes in those types of cases. Canadian criminal law prohibits you from doing many things. When you include regulatory offences, there are literally thousands of ways to get in trouble with the law. Look for a lawyer with expertise in your type of case.

4. Will you do all the important work on my case?

Many criminal lawyers pass along important work on a client’s case to junior lawyers or articled students. They do so for a variety of reasons. Whatever the reason, it increases the chances that something important to your defence might get missed in preparation. When your liberty is at stake, you need to know that the experienced lawyer you hired is the one who will actually do all the important work on your case.

5. Do I trust this lawyer?

When you’re facing criminal charges, there is a lot at stake. You may not be looking at jail time, but a criminal record for even a minor offence can affect your freedom in many ways, such as your ability to travel outside Canada, particularly to the United States.

It is extremely important that you trust the lawyer who will be responsible for protecting your rights and defending you against the power of the state.

So ask yourself, do I trust this lawyer? If the answer is no, nothing else matters. Hire someone else.

Drug charges: Doda tea poor man’s heroin

Doda tea, also known as poor man’s heroin, is illegal in Canada. It’s derived from the opium poppy and contains substances like morphine, codeine and thebaine. That means it’s prohibited under Schedule 1 of the federal Controlled Drugs and Substances Act, along with the most dangerous other illegal drugs like heroin, cocaine and methamphetamine.

Doda is produced by grinding dried opium poppy husks to create a tea-like substance. It’s consumed like tea, and is popular with users because of its effects. But, like other narcotics, it’s also potentially addictive.

Most people in Canada probably haven’t even heard of doda. Yet, it’s reportedly very popular with many members of the South East Asian community, particularly in Toronto and Vancouver, where users apparently buy it under the counter from certain local shops.

Supply is down, prices are up

So where do the dried opium poppy husks used to make doda tea come from? They have traditionally been imported into Canada from places with favourable growing climates, such as Arizona in the southern United States. However a crackdown by law enforcement in recent years has squeezed supply, which has meant higher prices for the end consumer, and potentially lucrative profits for those who are willing to risk operating along the chain of distribution.

More law enforcement and prosecutions?

Despite all this, there haven’t yet been many prosecutions for doda-related offences in Canada. One reason could be a general lack of awareness within the law enforcement community. But if doda is as dangerous as experts claim, that might change. If it does, there could be more law enforcement and prosecutions for doda-related offences.

Canadian prostitution offences unconstitutional

In December the Supreme Court of Canada released it’s much anticipated decision in Canada (Attorney General) v. Bedford 2013 SCC 72 in which it found three Canadian prostitution offences unconstitutional. The three Criminal Code offences involve keeping  a brothel, pimping and communicating in public about sex for sale. The high court gave the government a year to make changes. It it doesn’t, those activities will no longer be illegal in Canada.

A number of people have asked me if this means prostitution is now legal in Canada. They’ve all been surprised to learn that prostitution – the sale of sex for money – wasn’t an offence before the Bedford case, so the decision hasn’t changed anything in that regard.

The Bedford case actually concerned the prostitution-related offences regarding brothels, pimping and communicating in public about sex for sale. The nine appeal judges unanimously found each of the three offences unconstitutional because they violate a prostitute’s Charter right to security of the person in a way that is contrary to the principles of fundamental justice. The federal government didn’t seriously attempt to justify the violation.

Basically, the court accepted the argument that these provisions put the safety and lives of prostitutes at risk, and are therefore unconstitutional.

The context within which the decision was made is obviously important. Prostitution, although legal, clearly poses significant danger to prostitutes. Indeed, the decision makes several references to the case of notorious serial killer Robert Pickton in support of this seemingly uncontentious proposition.

“Keeping a common bawdy-house”

This is the offence that prohibits keeping a brothel. It was found to prevent a prostitute’s ability to do in-calls – in which clients attend at prostitutes’ residences (regarded by prostitutes as the safest environment within to engage in prostitution); when more dangerous out-calls – in which prostitutes attend at clients’ residences, are permitted.

“Living on the avails of prostitution”

This is the offence that prohibits pimping. It was found to prevent a prostitute’s ability to hire services such as security for out-calls – things like a professional driver (although the decision notes the offence even prevents the hiring of business services such as accounting).

“Communicating in a public place”

This is the offence that prohibits prostitutes and their customers from communicating in a public place about the sale of sex for money. It was found to prevent a prostitute’s ability to screen for “bad dates”.

So what does it all mean?

The court gave the government a year to make changes to the offences. If the government declines to do so, these activities will no longer be criminalized. If it does make changes, it will be interesting to see what form they take.

In the meantime, prostitution remains legal. I don’t anticipate any police or prosecutorial enthusiasm for investigating or laying charges for these offences, and criminal defence lawyers who did a lot of these types of cases will need to consider broadening the scope of their practices.