The Motor Vehicle Act states that “[a] person must not use an electronic device while driving or operating a motor vehicle on a highway.” This is commonly referred to as a prohibition on distracted driving. For simplicity’s sake there are two key aspects to this offence. Firstly, an electronic device and secondly, that device being used. Use includes holding the device in a position in which it may be used.

The COVID-19 outbreak is presenting significant challenges for the legal system in British Columbia. Courts at all levels have adjusted operations to minimize the need for in-person appearances to help mitigate spread of the virus. While the courts remain open at present, and urgent matters such as in-custody trials and bail hearings will proceed as scheduled, many cases are expected to be adjourned into May 2020 and beyond.

The presumption of innocence is the golden thread running through the Canadian Criminal Justice System. It is a fundamental principle of justice. As such, it is critical in any trial in which an accused person testifies that the analysis of the evidence follows an approach that respects the paramount importance of the presumption of innocence and does not transfer the onus of proof onto the accused. These principles apply even in traffic court trials.

The Crown has an obligation to disclose all relevant information in its possession. Disclosure is an essential component of the right to full answer and defence and as a result has been recognized as a principle of fundamental justice under s. 7 of the Charter of Rights and Freedoms.In the majority of cases complete disclosure is provided without issue. There will however, be cases where problems arise. In this blog post we will review what happens when evidence is lost or destroyed.

One of our recent blog posts addressed mandatory minimum sentences. Researching that post lead to the discovery of the National Justice Survey 2017: Issues in Canada’s Criminal Justice System. A review of the survey is certainly recommended but a few highlights are worth noting.Firstly, on the topic of mandatory minimum sentences there was little public support for them. Only one in six Canadians believe that such an approach leads to fair and appropriate sentences.

Liberty is at the heart of a free and democratic society. In R. v. Le the Supreme Court of Canada excluded a firearm and drugs from evidence as a result of a breach of Mr. Le’s s. 9 Charter right to be free from arbitrary detention. This right is meant to protect individual liberty against unjustified state interference. A detention exists in situations where a reasonable person in the accused’s shoes would feel obligated to comply with a police direction or demand and that they are not free to leave. The case tackled a number of issues. The focus here will be on policing racial minorities.

A salacious headline caught my attention but the substance of the case ended up being much more noteworthy. In R. v. Koenig the Provincial Court found the mandatory minimum sentence for the offence of child luring unconstitutional resulting in the youthful accused being sentenced to a conditional sentence order rather than a jail sentence. Having argued constitutional challenges to mandatory minimum sentences previously, this case falls in line with so many others in recent years.

The annual festivities surrounding 4/20 served as a reminder of both the developments in relation to the legalization of marijuana and the many issues which remain to be addressed.

Though legislation will outline an offence, the courts will end up clarifying the scope of the offence. Inevitably when a new offence is created various cases will allow the courts to comment on the elements of the offence and address factual scenarios which either support or fall short of proving the offence.

A new lawyer has joined Pender Litigation - meet Catherine Rose.

Pender Litigation is expanding. You will still be able to find us at our Vancouver office space but for those on the other side of the Fraser River, you will now be able to meet with our lawyers at our new Surrey office space.

The focus of today’s blog is on judicial review hearings. Textbooks have been written about judicial review so we will only deal with the absolute basics here. These hearings are unlike trials and appeals as they involve the court having oversight of external processes. There are a significant number of decision making bodies outside of the courts. The decisions made by these tribunals are subject to review by the courts but often within a narrow framework.

The fundamental principle of sentencing is that a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. On its face this may seem simple, but in practice this can be a challenge. No two offences or offenders come before the court in identical situations. There are simply so many variables involved in crafting a sentence that this can be one of the most challenging decisions a judge has to make.

Awareness continues to grow in relation to the frequency of false confessions. There are many famous examples where people have been exonerated years after confessing. With the knowledge that false confessions do occur, the question becomes how does the court handle situations where an accused alleges at trial that their confession was false.

Police officers must have reasonable grounds to believe that someone has committed or is about to commit an indictable offence before arresting them. The Supreme Court of Canada has rightly made clear that, "[w]ithout such an important protection, even the most democratic society could all too easily fall prey to the abuses and excesses of a police state".

The concept of an alibi is fairly simple. In the context of a prosecution, an alibi is a claim that a person – usually a person charged with an offence – was elsewhere when the allegedly criminal conduct took place, and thus it was impossible for him/her to have committed it.

Courts face a difficult task in finding facts at trial. Judges must determine who’s evidence they believe. Judges are able to accept some, none or all of a witnesses’ evidence. The question of which evidence to accept can only be answered by a proper analysis of the evidence of all of the witnesses -- considering the internal consistency of each witness' evidence, its consistency with other evidence found to be reliable and its consistency with common sense and ordinary human experience.

It wasn’t that long ago that judges would routinely impose double time for pretrial custody (counting two days for every one day in jail awaiting trial or sentencing). Sometimes judges would even grant three-for-one, or four-for-one credit. The rationale was twofold—first, no consideration is given for early parole eligibility in pretrial custody, and second, conditions of confinement in pretrial facilities are generally more onerous due to a lack of programs and other facilities for inmates.