Thursday, 4 April 2013
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.
- 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.
- 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.
- 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.
- 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!
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/
“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 9th 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
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