RE-Blog #15: FAMILY HOMES ON RESERVE AND MATRIMONIAL INTERESTS OR RIGHTS ACT

Originally Posted: June 17, 2013 - http://batchelorstammlaw.com/2013/06/family-homes-on-reserve-matrimonial/

 

FAMILY HOMES ON RESERVE AND MATRIMONIAL INTERESTS OR RIGHTS ACT

THE BAD NEWS IS…

In 1986 the Supreme Court of Canada in Paul v. Paul and Derrickson v. Derrickson ruled that courts cannot apply provincial or territorial family laws on reserves governed by the Indian Act if doing so would alter individual interests in matrimonial real property on reserves.

This unique situation arises because of the nature of reserve land which is held collectively by the band.  Individual band members cannot own land outright, but may have rights to possessionallocated under a Certificate of Possession.

This means that upon the breakdown of a marriage or common law relationship, a person can ask the court to determine how to divide the matrimonial property, such as house, cash, cars, etc..  However,a court cannot force the sale of a home on a reserve or re-allocate rights of possession or occupation of a home because provincial/ territorial laws cannot change the rights of individual First Nation members to their land.

This leads to unfair situations where a Certificate of Possession has been issued to only one spouse for land where the family home is located.  The other spouse cannot even temporarily stay in the family home, even if that spouse has custody of the children.

On reserve, there are no existing laws to prevent a spouse who has his or her name on the Certificate of Possession from selling the family home without the consent of the other spouse, whose name does not appear on the Certificate of Possession. This applies during a marriage or after a separation. As a result, on‑reserve residents have unequal protections, rights and remedies in relation to matrimonial real property compared to other Canadians.

Conversely, if both spouses’ names are on the Certificate of Possession, neither spouse can prevent, even temporarily, the other spouse from staying in the family home. This differs from land located off reserve, where courts can decide which spouse gets to stay in the family home, regardless of whose name is on the title.

THE GOOD NEWS IS…

There is a move afoot to address the inequality between off and on-reserve matrimonial real property rights and protections. On June 11, 2013, the federal government’s Bill S2, “Family Homes On Reserve and Matrimonial Interests or Rights Act” passed its third reading.  This Bill will provide many of the legal protections relating to matrimonial interests or rights that are applicable off reserves to individuals on reserves.

Under Bill S-2, First Nations will have the choice of enacting their own laws related to matrimonial real property, laws that can be designed to meet their particular needs and respect their customs, or following the provisional federal rules. A 12-month transition period was added to the bill to provide some time for First Nations to enact their own laws before the federal rules take effect.

For more information, please go to http://www.aadnc-aandc.gc.ca/eng/1370978535769/1370978580800

Article authored by:

Guuduniia La Boucan, Barrister, Solicitor and Notary Public, BSc, JD,
Associate Lawyer

Email Guuduniia!

Re-Blog #14: …without (extreme) Prejudice

Originally Posted: June 7, 2013 - http://batchelorstammlaw.com/2013/06/without-extreme-prejudice/

 

 

Settling your claim without (extreme) Prejudice:

Settlement privilege and without prejudice communications

    As a guy with a law degree I get asked a lot of questions. One that seems to keep coming up is, “What does the “Without Prejudice” mean on the top of letters and emails?”  

It means that the writer wants to communicate with you off the record in the hopes of settling your claim.
 
 Without Prejudice is legal shorthand for settlement privilege. Lawyers and people who fancy themselves legally trained write it on the top of documents to let other people know that they don’t want those things showing up in court. It is a signal from the writer to you that if you try to bring it to court the writer will ask the judge to exclude it on the basis of settlement privilege.  
 

So what is settlement privilege?  

Settlement Privilege  

 Settlement privilege is a rule of evidence that allows courts to exclude documents or other communications made by people who are trying to negotiate a settlement. The point is to let people talk freely so that there is a better chance of making an agreement and staying out of court. Who would be willing to acknowledge any weaknesses or make low offers if they knew a judge would be holding it against them later?

That’s probably enough information to get you by, but to be safe I’ll break it down a bit further to make sure I don’t leave you with the wrong impression. First let me say a word about evidence and privilege generally, and then I’ll give you a few more details about settlement privilege.  

What’s the deal with evidence?

If you end up in court then odds are your trying to convince a judge of something. Judges know the law, but they don’t know the facts of your case. To figure out the facts of your case, judges rely on evidence. Evidence can either be stuff witnesses say in court, or it can be documents, or cool stuff like videotapes and murder weapons.  

The evidence you can bring to court to prove your case is limited by all kinds of legal rules called the Law of Evidence. Somewhere in the compendious volumes covering what is allowed into court, and what isn’t there is a section called privilege.  

What is Privilege?  

If evidence is privileged it means the court won’t consider it, unless the holder of that privilege decides to waive privilege and let it in. In a way you could say that someone has the privilege of keeping this evidence out of court.  

The most talked about privilege is solicitor client privilege. Solicitor client privilege prevents the court from hearing what a client said to his or her lawyer when getting legal advice. The holder of this privilege is the client, meaning that if the client wants the court to hear about those discussions the client can waive that privilege and allow the evidence to come in. Getting back to Settlement Privilege.  

What is Settlement Privilege?  

As I said earlier, settlement privilege is meant to help people negotiate openly. It protects all communications that are made as part of settlement negotiations. The privilege is held by all parties to the negotiation. That means that the evidence won’t be allowed to come in to court unless both parties agree to waive the settlement privilege.  

Of course like all things in the law there are exceptions. The big exception you should know about is for Costs.  

What are Costs?  

When people go to court, other than small claims court, the loser usually has to pay the winner a portion of his or her legal fees. We call these fees costs. That means if you lose at trial, in addition to paying whatever the award is you will also have to pay costs.

 What do Costs have to do with Settlement Privilege?  

In most courts there are rules to encourage settlement. These rules may have a costs penalty for people who turn down reasonable settlement offers. An example is in some BC Supreme Court cases where if you turn down an offer and the judge doesn’t give you an award equal to or greater than that offer then you have to pay double costs for all the legal work done after the offer was refused.  

As you’ve probably guessed the court would need evidence on when an offer was made and for how much in order to enforce a rule like that. This means that settlement privilege will normally not apply to determining the amount of costs after the trial.  

Sometimes you might see “Without Prejudice (except as to costs)”. This is just being extra clear about this particular rule. The fact is that most without prejudice documents could be legitimately brought into court to determine costs.  

Bottom Line  

You got something that says “Without Prejudice” on the top. Can you use it in court? Probably not. But remember those words aren’t a magical incantation. If the document has nothing to do with settling the case then you might still be able to get it in. See a lawyer.  

You sent something out with “Without Prejudice” on the top. Can someone else use it in court? If it was about settling the claim then probably not. It was about something else, then yes it can probably be used as evidence.  

You sent out something about settling your claim, but didn’t put “Without Prejudice” on the top. Can it be used in court? Probably not. Settlement privilege should apply whether or not you used the magic words. Of course it’s simpler for everyone if you use them.  

You are worried about what evidence can show up after the trial is done to determine costs (ie. The portion of legal fees the loser has to pay). Settlement privilege normally doesn’t apply to a hearing on costs. The rules are specifically designed to look at offers to settle, so odds are that everything will come in.  

I hope that helped clear up the hidden meaning of the words “without prejudice” and remember, when in doubt see a lawyer to sort it out.  


 Article authored by:   Cody Walker, Law Student, CD, AA, JD

Re-Blog #13: Beyond the Polyester Veil

Originally Posted: May 22, 2013 - http://batchelorstammlaw.com/2013/05/beyond-the-polyester-veil/

 

 

A Personal Injury Negotiations Case Study

 

Article authored by:

Cody Walker, Law Student, CD, AA

       

Download PDF version here.

Re-Blog #12: The New Family Law Act in BC

Originally Posted: Mar. 26, 2013 - http://batchelorstammlaw.com/2013/03/the-new-bc-family-law-act/

 

   

"The New Family Law Act in BC" - Powerpoint Presentation (downloadable)

Re-Blog #11: Supervised Access

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/supervised-access-fact-sheet/

For your reference the team at Batchelor Stamm has provided a downloadable fact sheet on 'Supervised Access'.

Re-Blog #10: No Contact Orders

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/no-contact-orders/

Has your partner or someone you know taken out a no contact order against you?

What is a No Contact Order?

A no contact order is a legal decision made by a judge which restricts behaviour. You cannot contact the person who has taken the no contact order out against you. This means you cannot call, text or communicate in any way with this person. Communicating includes messages through other people, Facebook messages or Twitter updates. If you communicate with the person who has taken out the no contact order you are committing a crime.

There are four different types of no contact orders; it is important to know which type applies to you. Each type is described below.

1. A condition of release from custody before trial: If you have been arrested for assaulting or threatening your partner, a police officer, justice of the peace or judge may order that you do not contact your partner until your trial.
2. A condition of probation: If you plead guilty or are found guilty of a crime, you may be given probation, which is a court order to not do certain things for a specific period of time. One of the things you may not be able to do is contact your partner, which is the no contact order condition of your probation. A probation order lasts for up to three years.
3. A criminal peace bond: A peace bond is a court order to prevent you from committing a crime or harming someone. Your partner may ask for a peace bond, in which case you will have to attend court to see if the peace bond is justified. A peace bond may last for one year.
4. A civil restraining order: A restraining order is a civil order which mean you cannot contact, or go physically near the person who has taken the restraining order out against you. Restraining orders may last for long periods of time, based on the judge’s discretion.

IMPORTANT to keep in mind if you have been given a No Contact Order

• If your partner has taken out a Contact Order against you they have the right to change the locks at your house to make sure you do not enter. Your partner may change the locks to your house before you are released from lock up.
• No contact orders can be in effect for different amounts of time. It is vital to know how long your no contact order is so that you do not breach it.
• You cannot communicate with the person who has the no contact order against you, even if they contact you first. If the person communicates with you and you respond, you will be charged with a criminal offense.
• You can apply to the court to have a no contact order changed. A judge will decide if the order can be changed.
• Do not return to your home under any circumstances if your partner has taken out a no contact order. If you need to collect your clothes, laptop or anything else, contact a lawyer, a court worker or justice counsellor to find out how retrieve your possessions.

If you have children and a court order or a No Contact Order has been taken out against you

Your partner may have gotten a court order which allows you to see you children under supervision only. If you do not believe this is in the best interests of the children you may contact your lawyer, a family justice counsellor or see the family law website (www.familylaw.lss.bc.ca) for advice on how to have this order changed.

In order to ensure you can continue to see your children,you can talk to a family justice counsellor who will explain the steps that can be taken through family court (as opposed to a criminal court) even if your partner has taken a restraining order out against you. You may have to get a court order to have access to your children.

If you have to go to court after a domestic violence incident

If you have to attend court, you can either represent yourself or have a lawyer represent you. If you chose to represent yourself it is wise ask for help from a duty counsel or a court worker to make sure you understand the court procedures. If you do hire a lawyer, it is important to make sure they understand your position and the facts you want the judge to hear. The only time you will have the opportunity to talk to the judge directly is as a witness or after you are sentenced at the end of the trial.

Going to court

If you have been accused of a crime you will have to go to court. In court you will either plead guilty or not guilty to the crime you are accused of. If you plead guilty, you will not have to go to trial, but you will still be sentenced in a court. The prosecutor, or the lawyer bringing the charge against you, will ask the judge for a specific type of sentence. After this, you or your lawyer will explain your side of the story to the judge. Finally the judge will decide what your sentence should be.

If you plead not guilty, you will have to go to trial. A trial is an opportunity for the prosecutor to have witnesses explain the situation to the judge. You or your lawyer will then be able to put forward a defense to the judge. A defense is a legal argument to avoid being charged with a crime. During the trial, if you are found guilty, the judge will sentence you.

Re-Blog #9: I had to do it

Originally Posted: Mar. 22, 2013 - http://batchelorstammlaw.com/2013/03/i-had-to-do-it/

 

I had to do it: the defence of necessity

I had to….

• bust in the door. She had my keys and wouldn’t give them back, and I needed to go to work.
• drive the car after drinking. My car was blocking my buddy’s car and he had to pick up his kid.
• steal that food, my family was starving we would have died.
• break into that cabin, we were lost in the woods and there was a blizzard, we would have frozen.
• throw James to the hungry wolves, otherwise they would have eaten all of us.

I HAD NO CHOICE!

Introduction

The “I had to do it” defence is known in legal circles as the defence of necessity. This is what we call an excusatory defence. It allows the court to excuse you for committing the crime, even though you did it, because we are all human and sometimes in an emergency we try to save our own skin instead of obeying the law. So far it’s sounding good, but the fact is that the court takes a very narrow view of what is excusable. From the list above only one of those claims is likely to get anywhere near a necessity defence. Extra points for you, if you can figure out which one.

While you’re thinking about it, let’s talk a little bit more about how the necessity defence works. The defence of necessity can save you when three things come together:

(1) There is imminent peril (aka something really bad is about to happen);
(2) There is no legal way to avoid disaster;
(3) The harm you caused by breaking the law is less than or similar to the harm you avoided.

Imminent Peril

Those circumstances might be difficult enough to find on their own, but it gets even harder when we pin down what imminent peril means.

First of all the danger can’t befrom somebody else being violent. When somebody else is being violent and you do something to stop them we look at the law of self-defence (also defence of others, and defence of property). It also can’t be because of threats to you and your loved ones. When you have to do something because of threats we look at the law of duress. Let’s save those for another day. The type of danger I’m talking about is from nature or forces other than man. For example a huge storm at sea, a fire, a medical emergency, or wild animals.

The danger has to be both significant (ie. not you will be late for work, but someone will be badly hurt or die), and imminent (ie. happening now, not sometime in the next day or so). If it’s not a significant you’re expected to obey the law and suffer the consequences. If it’s not imminent you should keep trying to find a legal solution until it becomes imminent and you run out of choices.

The last part is that it can’t be a foreseeable harm. If you throw yourself into the lion exhibit at the zoo you should realize that the lions might attack you. That’s foreseeable. So when you start shooting all the lions you won’t have a necessity defence because you are the one who caused the imminent peril in the first place.

Okay, so we have imminent peril. If you don’t do something now people will die. It’s not your fault that you’re in this situation, it just happened but now you have to deal with it. Step 2. Is there a legal way out?

No (legal) way out!

Your standing on the street corner, your friend just got stung by a bee. He’s allergic. He needs his auto-injector and if he doesn’t get it he might die. You don’t have one and for some reason out of everyone’s control neither does he. Then you see one behind the glass of the pharmacy window right next to you, but the store is closed. You’re thinking about throwing a rock through the window and stealing that auto-injector. You probably have imminent peril, but is there a legal way out?

If you have a cellphone you should probably call 911, if not you should shout for help. If it turns out there is an ambulance around the corner, or there is someone else with an auto-injector walking down the street, your buddy can be saved without committing any crimes.

Just as in our example the legal solution that people tend to forget about is usually getting help. Make sure before you resort to crime that there isn’t a legal way to resolve things, like getting help.

You’re staring down imminent peril, there’s no legal way out, and no-one is going to help you. Your about to commit that crime. There’s only one more step before you can rely on the defence of necessity.

The scales of justice

The harm you’re about to cause has to be less than or at least roughly equal to the harm your avoiding. So breaking the window and stealing the auto-injector to save a life seems like a safe bet. Similarly breaking into the cabin in the woods to avoid freezing to death seems safe.

On the other hand it’s hard to imagine what would justify setting a school on fire, or cutting off someone’s arm. It’s even harder to imagine a case where killing someone would be excusable even though it seems to come up in the movies all the time.

Conclusion

The “I had to do it” defence is one of the better excuses to use on your friends. They nod sympathetically and say “I get it, you had no choice, you would have been late for work, you could have lost your job….” Unfortunately it’s one of the hardest defences to use in court, but….

If you had to do it because if you hadn’t

• Something terrible would have happened, and
• There was no time to wait in case the situation improved, and
• You couldn’t have avoided the situation by thinking ahead, and
• There was no legal way out (including calling for help), and
• You caused less harm than you avoided.

Then you might have a necessity defence. Otherwise all you have is explanations that make the crime seem either better or worse and effect the harshness of the sentence you will get.

Article authored by:

Cody Walker, Law Student, CD, AA

Re-Blog #8: But I was drunk?

Originally Posted: Mar. 15, 2013 - http://batchelorstammlaw.com/2013/03/but-i-was-drunk/

But I was drunk? The intoxication defence.

So you’re charged with a crime, and you would have never done it if you weren’t drunk. Or maybe you don’t even remember it happened because you were so drunk. Is that some kind of defence? The booze made me do it?

The short answer is no. The long answer is maybe, but only in very limited circumstances. The intoxication defence can be used in two scenarios:

(1) Intoxication – You were really, really drunk, and the crime your charged with is complicated and would require an ability to plan or reason that you just couldn’t have had because you were so incredibly drunk;

(2) Intoxication akin to automatism – You were absurdly drunk. That is to say, drunk beyond all reason. So drunk that you were effectively a zombie and couldn’t even appreciate that swinging your arm might make it hit something. While being this drunk you committed a crime that didn’t result in anyone getting physically hurt.

Intoxication

This is an old common-law defence that works by taking away the mental element of the crime.

As you know from reading my other excellent articles, crimes are broken down into elements. For example assault is usually broken down as the intentional, physically voluntary, touching, of another person, without that persons consent. One of those elements, “intentional” is the mental element, or Mens Rea (MR), or more dramatically the ‘guilty mind’. Most crimes have an MR element that ensures you’re not convicted of doing something bad, unless you meant to do it.

Some crimes like assault have a simple MR like intending to touch someone. We call those general intent offences. Other crimes have a more complicated MR where you do one thing hoping to bring about another, these are called specific intent offences. An example of a specific intent offence is robbery where you do the first thing, hurting or threatening someone in order to accomplish something else, to steal their stuff.

The point of this is that intoxication can be a defence to a specific intent crime if you were so drunk that you couldn’t have possibly had the end goal in mind. So for example you were so drunk when you hit that guy that you couldn’t possibly have been thinking that hitting him would make him give you his wallet. If that was the case you would be not-guilty of robbery, but you would still be guilty of assault.

The bottom line is this. If your charged with a crime that involves some larger plan (a specific intent offence), and you were so stinking drunk there’s no way you could have had that plan, then you may have a defence.

Intoxication akin to Automatism

If you are charged with a simple crime that doesn’t require ulterior motives (ie. a General Intent offence), there is still a vague possibility your drunkenness could be a defence.

This only comes up if you were so incredibly drunk you can’t tell up from down; you had the mental capacity of a potato; you didn’t understand that swinging your arm might result in hitting the guy next to you. Okay, I’m belaboring the point and those are hardly sophisticated legal tests, but suffice it to say you have to be absurdly drunk and you’ll need expert doctors to come in and talk about how drunk you were.

In addition to being that drunk the crime also has to be one where nobody got hurt. Any situation where somebody got assaulted, sexually assaulted, wrongfully touched, kicked, hit, burned, knocked down, etc… is out. Getting yourself drunk isn’t a defence to those crimes, ever.

Now there is one minor wrinkle here and that’s if you weren’t the one who got yourself drunk. And I don’t mean it was an accident, or your girlfriend made fun of you 'till you agreed to drink. I mean if gangsters held you down and forced meth into your mouth... If that happened and you ended up going out and hurting someone you may have a defence. However, short of gangsters holding you down and forcing you to do drugs, there is no intoxication defence to a general intent offence where somebody gets hurt.

The bottom line here is that this defence is so rare it almost never comes up, but in theory if you committed a general intent offence where nobody got hurt and you were so drunk you didn’t know what you were doing you may have a defence.

In Conclusion

My advise to you, is not to get drunk and commit crimes. If it’s too late and you did get drunk and commit a crime, then being drunk part is probably not much of a defence. To be safe though you have to ask yourself

(a) how drunk were you?
(b) and how complicated was the crime?

If the answer is very drunk, and a bit complicated, then you may have a defence.

If the answer is insanely drunk, and dead simple, but nobody got hurt, then you may have a highly impractical defence.

Otherwise your drunkenness doesn’t excuse the crime, it just goes to how bad the crime was and how harsh your sentence should be.

Article authored by:

Cody Walker, Law Student, CD, AA – about the author

Re-Blog #7: Hempology 101 article #1: re-release

 Originally Posted: Mar. 14, 2013 - http://batchelorstammlaw.com/2013/03/hempology-101-…e-1-re-release/‎

The article below was written by Jesse Stamm, Barrister, Solicitor and Notary Public, BSc, Bsc, JD, Junior Partner, for a local organization known as 'Hempology 101' published by Ted Smith of Victoria, BC, Canada. At the time of writing this series of articles, Jesse was still a student-at-law, these days Jesse is the 'Stamm' of Batchelor Stamm Law Corporation. Enjoy!

Hello Hempology Students! I am an articled student (graduated from law school, will be writing the bar exam in September) at Roger Batchelor Law Corporation in the Western Communities. I moved to Victoria in 1994 to attend the University of Victoria, and have spent 10 of the years since completing two Bachelor's Degrees in Biology and Psychology (with distinction) and my Juris Doctor (aka law degree).

Having spent so much time at UVic, I have seen Ted Smith on numerous occasions and have followed his involvement with the legal system throughout the years. I recently met with Ted and we discussed the possibility of running a legal advice column in the Compassion Club newspaper. While there are many aspects of the legal system that would be relevant to the other issues in the paper, we believe that the most valuable advice will relate to the criminal justice system. I will set out some of the most useful general principles in this introductory article, and will address more specific issues in later issues. Please feel free to suggest potential future topics to either myself or Ted, who will select from your messages and incorporate the answers into future articles.

While some of the obvious marijuana related issues relate to specific criminal charges such as possession, trafficking, or production, there are a number of basic and fundamental principles of criminal law that relate to any involvement with the police, and which any person in Canada should be aware of.

The first and most important principle is the right to remain silent while interacting with the police. This is an inalienable right, and there are absolutely no circumstances under which a person can be forced to speak to the police. However, there is nothing to prevent a peace officer from continuing to speak to a person under arrest, especially about unrelated topics such as hockey, football, and so on. This is a very commonly used technique, and has successfully worn down a countless number of persons to the point where they begin to engage in conversation with the police. This is always a poor decision, and should be carefully guarded against. Of course, you are obligated to identify yourself if you are driving a motor vehicle or if you have been placed under arrest; failure to do so or providing a false name is grounds for being charged with obstruction of justice, which carries a maximum penalty of 10 years imprisonment; however, identifying yourself can be done without speaking a single word. Remember, if you have been detained by the police, the only thing that you should say is “I would like to talk to a lawyer!”

This leads to the second most important principle of criminal justice: the right to legal counsel. If a person is detained or arrested by the police, they have the right to speak to a lawyer “without delay.” This right is found in Section 10(b) of the Charter of Rights and Freedoms. However, while police almost always use the word “arrest” when arresting someone, it is less common for someone to hear the word “detention.” If you are being asked questions by a police officer and you have any question about whether or not you have been “detained,” ask if you are free to go. If the answer is yes, simply walk away. If the answer is no, you are under detention and your right to talk to a lawyer springs into existence. At that point, remember the first principle!

Thanks for reading this introductory article, and I hope that there will be many questions that I can address in the next issue. Please send possible topics to info@batchelorstammlaw.com or directly to Ted.

Re-Blog #6: Sleepless Nights

Originally Posted: Mar. 8, 2013 - http://batchelorstammlaw.com/2013/03/sleepless-nights/

Sleepless Nights: Limitation periods for crime

 

“There’s no statute of limitation on murder!”

  You’ve probably heard it on American TV. The hardboiled cop spits it in the face of the villain when he knows who did it, but can’t prove anything. It means that even if the murder happened 80 years ago the murder can still be brought trial. But you didn’t commit a murder on TV in the States, so why do you care?

 You care because unlike murder some crimes do have a ‘statute of limitations’. Meaning that if a certain period of time goes by (ie. 6 months, or a year) it’s too late and the case can never be brought to trial. In essence whoever did the crime has gotten away with it. As you can see there are two sides to this. On the one hand if you’re still hoping they will get the guy who stole your bike five years ago you
’re probably out of luck. On the other hand if you’re up at night worrying about doing time for the dime-bag of weed you smoked in the sixth grade you can probably sleep easy.

 So how do long do you have to wait before your youthful, or maybe not so youthful, indiscretions no longer carry the risk of time behind bars? That depends on the crime and how the prosecutor decides to proceed.   There are literally thousands of offences in hundreds of different Acts, and each Act can have its own limitation period. So in theory if you committed an offence under the Seed Potato Act you need to look up the legislation and see what it says about limitation periods. That’s what they teach you in law school - to read the laws – and now you know one of the great secrets. Okay, but you’re not a lawyer and you don’t want to spend all day reading laws.

Good news, because even though there are thousands of offences in hundreds of Acts, people mainly commit offences under one of three Acts: the Criminal Code of Canada, the Controlled Drugs and Substances Act, and the Motor Vehicles Act. Moreover the vast majority of those hundreds of other Acts don’t set their own limitation periods, but instead rely on default provisions.

You’re saying get to the point, how long do I have to wait before the crime will forever go unpunished. I’ll get there, I promise, but just hold on, one more minute. I’m telling you all this background because I want you to know that even though I’m saying there is normally a limitation period of _____months, if you get charged with something unusual or under some little known Act, it might be different. So even though your ____months is up, don’t go running through the streets telling everyone how awesome it was to break the law. If you must do to that go check with a lawyer first, or if you can’t afford that, at the very least Google the law you’re charged under and see if it has a different limitation period.

Okay, warnings complete, here is the magic.

Indictable Offences No limitation period
  
Motor Vehicle Act Offences 12 months  

Summary Offences 6 months

What does that mean? Indictable Offences are the really bad ones (murder, kidnapping, sexual assault, robbery) and these have no time limit. Just like on American TV they can get you for murder 30 years later.  

Summary Offences are the less serious offences (nudity, public disturbance, etc…) Those need to be started by either a ticket (if it’s the kind of offence you can get a ticket for) or a sworn information within 6 months of the crime.  

 Hybrid Offences aren’t listed because they can go both ways. Many crimes can be very serious or not so serious depending on the facts. For those offences the prosecution decides whether to treat it like an indictable offence or to treat it like a summary offence. A good example is theft which can range from shoplifting to a casino heist.  

I know what you’re thinking, that means if the prosecution missed a deadline they could just amp up what would have been a summary offence to an indictable offence and they are off to the races. Although that may be true, in practice it very rarely happens. Prosecuting indictable offences is difficult and time consuming. There is no appetite to proceed by indictment on your shoplifting beef, even if it’s too late to proceed summarily. In short, if the crime was minor and six months has passed you are probably in the clear.  

Motor Vehicle Offences are special, because somebody put an extended limitation period of 12 months in the Act. This is why you really need to double check the Act you are charged under. A Motor Vehicle Act Offence must either be ticketed or started by sworn information within six months.  

That’s it: you laughed, you cried, you regretted opening your browser, but what should you take away from this?   

1) Stop worrying about those petty crimes you committed in grade school, and accept the fact that the 9^th grade bike thief will probably never pay for this crimes;

  2) If you did something dumb, and it’s been more than 6 months (12 if you were driving at the time), you’re probably off the hook, but maybe keep it to yourself anyways;  

3) If you did something really bad you are never getting off the hook and you’ll have to either own up to it or take it to your grave;  

4) If the something dumb caught up to you and you got a ticket or a criminal charge for something you did more than six months ago (twelve if you were driving at the time) you may have a limitation period defence and you should talk to a lawyer.    

Article authored by:   Cody Walker, Law Student, CD, AA – about the author

Re-Blog #5: Face to Face with the Police

Originally Posted: Mar. 8, 2013 - http://batchelorstammlaw.com/2013/03/sleepless-nights/


WHAT SHOULD YOU DO?

  It could be a sunny day, or a rainy night. Maybe your minding your own business or maybe not. Next thing you know you’re face to face with the police. What should you do?

BE POLITE AND NON-THREATENING   There is no law that you have to be nice to the police, but your chances of having a good encounter are much better if you are respectful. It is also important to be non-threatening. Whatever your feelings about the police are, they do have a dangerous job, and if you are being violent it gives them a reason, or at least an excuse, to use force against you.

YOU HAVE THE RIGHT TO REMAIN SILENT: USE IT   If a police officer walks by and says, “nice day isn’t it?” you can probably safely answer that question. Similarly, if you have called the police to help you this would be a good time to talk to them. On the other hand, if you have any reason at all to think the police might consider you a suspect then talking to the police is a bad idea.   Even honest, ordinary, good-hearted citizens can get themselves in bad situations when talking to the police and here is why.

• Inconsistent statements. The police are taking careful note of everything you say and if they do decide to charge you with something down the road you may have to account for all the things you said. Do you think 2 years down the road you will be able to remember and give all the same details you gave the police today?

 

• Providing the police with cause. The police might have no reason to detain or arrest you…that is until you open your mouth then suddenly you is frisked and in the back of a police car. This may be because you mentioned something illegal, like smoking pot, or carrying a giant knife in your pocket, or it could be because you admitted to be in the wrong place at the wrong time. Save yourself the trouble and don’t tell the police your life story.

 

• Confessing a Crime. Usually knowing right from wrong is straight forward, but sometimes we do something a little bit foolish or without thinking it through and that something turns out to be a crime. “Sir, is that your backpack?” “Yeah, it’s cool, huh. This guy just gave it to me on the street ten minutes ago, said it would look good with my shoes. ” If the backpack was stolen you may have confessed to the crime of possession of stolen property.

 

• Confessing Elements of a Crime. Finally you may admit some element of a crime. As you probably know crimes are made up of several parts called elements. For example an assault is usually broken down as: a physically voluntary, touching, of another person without their consent. To be convicted of the crime it’s a prosecutor’s job to prove every one of those elements. Each element you admit now, even if there is a good reason makes it that much easier for you to be convicted. For example, you might admit that you touched someone which in and of itself isn’t a crime. Maybe you bumped into them by accident, or maybe you shook their hand, that’s not an assault, but now that we know the contact occurred there is one less element to be proven, and one less road block between you and a criminal record.

 

• The Innocent have nothing to fear. I could go on, but I want to leave you with this final thought. People say that if you’re innocent you have nothing to fear, but if you Google wrongful conviction you will find a thankfully small but still significant group of people who would disagree. Protect yourself and don’t talk to the police without legal advice.

  YOU DON’T NEED TO CONSENT TO A SEARCH (until you’re detained or arrested)   If the cops ask if they can look in your purse, or want you to show them what’s in your pocket you don’t need to agree. Just say “NO”.

AM I BEING DETAINED?   You have been stopped by the police; they have asked you some questions. You were polite and non-threatening. You kept your hands visible and lowered; you stayed back from the officer’s. You exercised your right to remain silent. You said things like, “I’m sorry I don’t want to talk about it,” and “I know you’re just doing your job but police make me nervous. I’m not comfortable talking to you by myself.”   The police are still talking to you and asking you questions.What happened? Well, contrary to popular belief although you have the right to remain silent the police have the right to keep asking anyway. This is a good time to exit the situation.

Ask the police, “Am I being detained?”   This is the key moment.   If the answer is no then you WALK AWAY.   If the answer is yes, then you ASK FOR A LAWYER.

 If the answer is something else then you repeat the question, “Am I being detained?”   I WANT TO TALK TO A LAWYER.

 You asked if you were being detained and the police said yes or they arrested you, or they said something else but wouldn’t let you walk away. Now is the time to tell them “I want to talk to a lawyer.” Those should basically be the only words out of your mouth until they give you a phone with a lawyer on the other end.   While your mouth is busy saying “I want to talk to a lawyer,” the rest of you should be cooperating at this point. Now that you have been detained the police have the right to conduct a minimal search of your person and things you’re carrying to make sure you don’t have anything that is a danger to them or to the public (ie. Weapons).   If you are under arrest the police have the right to do a full search of you and the items in your possession to secure evidence, determine your identity and for safety. Let them search you. If they ask if you have anything that will hurt them in your pocket, and you do, tell them. Don’t let the police get hurt searching you.

Similarly,   OBJECT, BUT DON’T FIGHT THE POLICE!

So you’ve read this article and now you’re a seasoned veteran of dealing with police. Okay maybe not, but you have a better idea of what your rights are when you’re talking to them and some ideas on how to approach the situation to protect your rights.   Now you’re actually talking to the police and the real world isn’t playing out like the article. You think your rights are being infringed. This is a good time to object. “No, I don’t want you to search my purse.” “If I’m not being detained I want to leave, excuse me please.” “I just don’t want to talk, I’m sorry.” But, and I can’t stress this enough, DON’T FIGHT THE POLICE. If the cop says “I don’t care what you want, give me your purse.” Give the police officer your purse. Let the lawyers sort out your rights down the road.   Why should you cooperate, when they are breaching your rights?  

• I didn’t say cooperate. Tell them you think they are breaching your rights and you don’t want to do it, but if they insist don’t fight it.

 

• You could be wrong. Police do this every day and they make mistakes. Lawyers look at these issues everyday and they make mistakes. Sometimes judges make rulings on these issues that get overturned on appeal, those are mistakes. Let the courts decide who was right and wrong later, the street at midnight isn’t a good time for you to suddenly become a lawyer.

 

• Resisting might be a crime. Depending on how you resist, you might be committing an independent crime. If the police pick up your bag, and you snatch it back from them, you might be committing an assault. Forget whatever the original beef is; now you have a legitimate criminal charge.

 

• #1 Reason – You could get hurt. Remember back in the beginning I said the police have a dangerous job. They are used to dealing with strong violent criminals. I know that’s not you, but if you start resisting, right or wrong, they will probably start using force, and you could get hurt. Why get hurt for nothing?

   

SUMMARY SHEET

  BE POLITE AND NON-THREATENING   Hands visible and lowered.   Keep space between you and the officer.   Lower your voice.

REMAIN SILENT   “I don’t want to talk about it.” “I’m sorry I have nothing to say.” “I’m uncomfortable and I don’t want to talk to you without a lawyer.”

 DON’T CONSENT TO SEARCHES   “May I look in you’re….” “No.” “Can you show me you’re…..?” “No.”

AM I BEING DETAINED?   “No.” - WALK AWAY “Yes.” – I WANT A LAWYER

 “You’re under arrest.” – I WANT A LAWYER

Article authored by:   Cody Walker, Law Student, CD, AA - about the author

Re-Blog #4: Successful decisions for BSLC clients

Originally Posted: Dec. 9, 2012 - http://batchelorstammlaw.com/2012/12/successful-decisions-for-batchelor-stamm-clients/

At Batchelor Stamm Law Corporation, we aim to meet your legal needs and take pride in successful decisions for our clients.   One such case, is that of our client, Bob (Robert Jason) McDonald and his company "Snowflake water."   Here is a link to the Alberta Provincial court ruling.   Another client which we were able to achieve a successful decision for, involved rulings on costs in a British Columbia Provincial Supreme court, family matter.   Bird v. Kohl 2012 BCSC 1424   The team at Batchelor Stamm Law Corporation was successful in achieving costs for our client, Pamela Kohl.

Re-Blog #3: Website content

Originally Posted: Nov. 15, 2012 - http://batchelorstammlaw.com/2012/11/website-content/

Have you been involved in a motor vehicle accident (MVA)? Make sure you are informed. Check out the new ICBC / personal injury section of our website for information on what to do following an MVA.

Re-Blog #2: Facebook and Twitter

Originally Posted: Aug 27, 2012 - http://batchelorstammlaw.com/2012/08/second-new/‎

Just a reminder, you can follow us on Twitter @BatchelorStamm (http://www.Twitter.com/BatchelorStamm) and find us on Facebook at Facebook.com/BatchelorStammLawCorporation.   We are constantly "tweeting" and posting about news relevant to the legal professions and those affected by it.

Re-Blog #1 - Batchelor Stamm Youtube Channel

Originally Posted: Aug 21, 2012 - http://batchelorstammlaw.com/2012/08/first-new/


That's right, we have a Youtube channel... http://www.youtube.com/BatchelorStammLaw packed full of FREE legal advice! All episodes of "Down to Earth Legal Tips" are now available, and soon all episodes of "Island Justice with Roger Batchelor" will be live on this channel as well. Stay tuned, and check often for updates. Have a great day!