Articles, discussion or information pertaining to criminal defence | Eleanor Funk | Calgary Criminal Lawyer - Part 10

One more crushing effect of ‘civil forfeiture’

A few times throughout this blog, I’ve discussed ‘civil forfeiture’. This is a legal action by the Provincial Government, in civil court not criminal court, in which the Province applies to forfeit property (e.g. houses, cars, money), where there are allegations the property was somehow used in connection with criminal activity (i.e. houses used for marihuana grow op’s or used to store stolen goods; cars used for drug trafficking; cash seized in connection criminal investigations, etc.).

Under this ‘civil forfeiture’ legislation, the Provincial Government can successfully apply to have property forfeited even where no criminal charges have been laid, or no findings of guilt are made in criminal court. Where criminal charges are laid, the property owner is then faced with the costs of two sets of legal proceedings: the criminal charges and the civil forfeiture proceedings. Many property owners cannot afford both, and will choose to walk away from their property because they simply cannot afford to pay for the court proceedings, even where there are valid defences to the civil forfeiture action. The financial consequences for many property owners is crushing.

Here is one more crushing financial consequence: if the Provincial Government seeks to forfeit a home, and if there is a mortgage / line of credit on the home, the Bank may cancel the mortgage / line of credit due to the allegation of criminal activity being a breach of the loan agreement. What this means is, without any findings of guilt in criminal court, or any finding of illegal activity in the civil forfeiture proceedings, property owners may lose their homes by being forced into foreclosure when the banks cancel the loans for these alleged contract breaches.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108) or email at info@eleanorfunk.ca.

If I have a criminal conviction in Canada, can I still travel to the United States?

The short answer is:  it depends.

Entry into the United States will always be at the discretion of the individual border guard.  Most often with criminal cases, we see clients charged and / or convicted of drug offences may have difficulty gaining entry into the US.

More recently, I dealt with a situation where an individual had travelled to and from the US many times over many years, with no difficulties at all. Then, during a recent family vacation, the person was delayed at the US border due to a 35 year-old conviction for ‘mischief to public property’. Eventually, the person was allowed to enter the US for his family vacation, but now has to travel with a copy of his criminal records check every time he travels to the US. At the time of the conviction, 35 years ago, this individual received a small fine and probation as a penalty, but was recently told by US border guards that if the maximum penalty for the offence, back in 1979, was 15 years or more, he could be denied entry into the US. Forever.

The moral of the story is, any conviction, no matter how small, and how historic, may result in travel difficulties to the United States.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (Ext 108) or email at info@eleanorfunk.ca.

Is “sexting” illegal?

In some cases, yes, ‘sexting’ or face booking or instagraming or tweeting about sex or sending any kind of sexual pictures can be a criminal offence.

Under the Canadian criminal law, the age of consensual sexual activity is 16 years old. But under the ‘child pornography’ laws, any pictures or written material depicting sexual activity of individuals under the age of 18 years can be considered illegal child pornography.

What this means is, if young people, 16 or 17 years of age, are ‘sexting’, that is sending typed messages containing sexual content, or sending naked or semi-naked pictures by text message, or over the internet, these activities could be considered criminal offences, under the crimes of making, possessing, or distributing child pornography, even if the activities are completely consensual. If charged and convicted of these offences, the penalties can be quite serious. If, for example, an 18 year old has a girlfriend or boyfriend that is under the age of 18, and they ‘sext’ to each other, or in any way send sexual messages / photos, the 18 year old could face mandatory jail time if charged and convicted of any of these ‘child pornography’ related offences.

If you’ve been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

How a small amount of pot can have very long term travel consequences

It’s easy to think sometimes that being caught with a small amount of marihuana, and being charged with possession of marihuana, is not a big deal. Realistically, if someone is convicted of possession of a small amount of marihuana, he may be sentenced to paying a small fine. For most people, this is not a big deal at all.

Where this becomes a bigger deal is when that person tries to travel to the United States. Entry into the US will always be at the discretion of the individual border crossing guard, but many times, any type of drug conviction, or even outstanding drug charges will be sufficient reason for the US border guards to deny a person entry into the United States.

Under Canada’s new pardon laws, it takes much longer (5 or 10 years, depending on the offence) to apply for a pardon, and the process of applying for a pardon or US travel waiver can be costly and time consuming. What this means is, being caught with even a small amount of marihuana could result in not being able to travel to the United States for many, many years.

If you’ve been charged with a drug offence, or any crime, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

The Supreme Court struck down the prostitution laws. What happens next?

In December of 2013, the Supreme Court of Canada struck down some of Canada’s prostitution laws, and gave Parliament one year to respond by either re-writing these laws, or not. What will prostitution laws look like in the future?

The act of selling sex for money is not a crime in Canada. The criminal law has instead made it a criminal offence to communicate for prostitution in public; to ‘live off the avails’ of prostitution; or to operate a ‘bawdy house’. These laws have now been struck down. While it is too soon to know how the Government of Canada will respond, there are a few possible options.

If Parliament chooses to do nothing, by not re writing any of these laws, then the business of prostitution will be legal and not regulated in terms of where this business may be conducted. This means that ‘brothels’ may start showing up in residential, business and industrial neighbourhoods; street prostitution may become more out-in-the open, etc.

If the new laws are focused on creating safe places, aimed at reducing the risks and dangers associated with prostitution, then Canadian cities may start to see the development of areas such as ‘red light’ districts, where brothels are legal and regulated, and taxed, like any other legitimate business.

Another possibility is for the new laws to focus criminal attention on the ‘johns’ and pimps, and not the prostitutes. Through this type of approach, we may see programs aimed at encouraging prostitutes to safely exit the sex trade; public awareness campaigns aimed at focusing attention on the ‘purchasers’; and education campaigns aimed at shining a light on the realities of human trafficking.

In the meantime, the old prostitution laws are still in place, with uncertainty as how police departments and Prosecutors offices will respond to the Supreme Court decision.

If you’ve been charged with a prostitution-related offence, or any crime, you the need assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

When someone gets up in your face, just walk away

We all know that arguments happen. Very quickly a verbal dispute can turn physical. Under the Criminal Code, any form of non-consensual touching is a criminal ‘assault’.

It’s easy to imagine a situation where two people are engaged in a verbal argument, they both may be yelling at each other, swearing at each other, and ‘egging’ each other on. So far, there is nothing criminal about this behaviour. As soon as one person touches the other, even to push the other person out of his face, the actions become criminal and the person doing the pushing may be charged with assault, even though no punches have been thrown.

In a situation like this, where both people were equally involved in the verbal argument, only one person may be criminally charged if he chooses to end the argument by shoving the other person away. The moral of the story of this, no matter how much another person may be ‘up in your face’, to avoid the risk of being criminally charged by pushing that person away, just walk away.

If you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

Prostitution laws in Canada struck down – what does this mean?

On December 20, 2013, in a land-mark decision, the Supreme Court of Canada ruled some of the laws against prostitution are unconstitutional and violate a person’s right to ‘life, liberty and security of the person’. What does this mean?

As a starting point, the exchange of sex-for-money is not a criminal offence in Canada. Instead, ‘keeping a common bawdy house’ (i.e. brothels, certain “massage parlours”, and other places where people go to specifically engage in prostitution-related activities) is a criminal offence. ‘Living off the avails’ of prostitution is also a criminal offence. We often think of people who ‘live off the avails of prostitution’ as pimps, but may also include receptionists, body guards, drivers or other security personnel employed in prostitution- related businesses. Also, ‘communication for the purpose of prostitution’ in a public place is a criminal offence – this means the communication between a “john” and prostitute on the street, or other public place, is a criminal offence.

There is no argument that prostitution can be a dangerous business. Many have argued over the years the current criminal laws make it impossible for people involved in prostitution-related activities to do so in a safe way, when it’s a criminal offence to have brothels or to employ drivers or security personnel, etc.

In the decision of R. v. Bedford, the Supreme Court of Canada agreed these current laws may act to increase the inherent dangers of prostitution and found these laws to be invalid. Rather than striking down these laws right away, the Supreme Court has given the Parliament of Canada one year to respond to this decision and effectively ‘re-write’ the prostitution laws. The Court acknowledged Parliament may still impose limits on where and how prostitution is conducted and gave Parliament one year to devise a new approach.

For now, the current prostitution laws are still in place, but the legal landscape is changing fast and within a year, Canadians may have a whole new set of prostitution-related law.

If you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

“Cruel and Unusual Punishment” – how some courts are responding to mandatory minimum jail sentences

Over the past several years, Parliament has made a number of changes to the Criminal Code and Controlled Drugs and Substances Act. The result of these changes have 1) created mandatory minimum jail sentences for some crimes; and 2) increased existing mandatory minimum jail sentences for some crimes.

For example, any person convicted of ‘discharging a firearm into or at a place, knowing that another person is present at that place’ would face a mandatory minimum jail sentence of at least 4 years. As another example, any person convicted of ‘possessing a loaded prohibited or restricted firearm’ would face a mandatory minimum jail sentence of at least 1 year, and possibly 3 or 5 years as minimum sentences.

The Canadian Charter of Rights and Freedoms protects everyone from being subjected to ‘cruel and unusual punishment’.

In certain circumstances, judges will ‘strike down’ minimum jail sentences if they find such sentences amount to ‘cruel and unusual punishment’. What this means, is sometimes judges will find these mandatory minimum jail sentences are, in fact, not valid laws and should not apply.

Recently, in Manitoba, the court found the 4-year minimum for ‘discharging a firearm into a place knowing a person was present’, was cruel and unusual punishment. Also, recently in Ontario, the court found the 3-year minimum penalty for ‘possessing a loaded prohibited or restricted firearm’ was cruel and unusual.

So what does this mean in Alberta? For now, the minimum penalties are still the law. With these cases from Manitoba and Ontario, likely in the next couple of years the Supreme Court of Canada will decide if these minimum penalties are valid, or not.

The bottom line is this, if you’ve been charged with a criminal offence, you should speak with an experienced Criminal Defence Lawyer to discuss all of your options. Call Eleanor Funk today at 403.262.7722 (ext 108) or email at info@eleanorfunk.ca.

I’ve Been Charged with a Criminal Offence. The Crown has offered me “Alternative Measures”. What does this mean?

The Criminal Code allows for a number of different options once a person is charged with a criminal offence. One of the best options, for an accused person, is the Alternative Measure Program, or AMP.

The Alternative Measures Program is a program that is authorized by the Prosecutors’ office and most often involves an accused person performing some community service hours (or sometimes making a financial donation and / or writing a letter of apology), at the completion of which the criminal charge(s) is completely withdrawn, resulting in absolutely no criminal record for the person charged with an offence.

Typically, the Crown Prosecutor will allow an accused person to enter into the Alternative Measures Program if: 1) the person is charged with fairly minor offences (e.g. shoplifting of small amounts; minor assault charges; possession of very small amounts of a drug) and 2) the person has no previous criminal convictions and has not previously participated in the Alternative Measures program.

The advantages for an accused person are many, with the outcome of there being no criminal convictions being the greatest benefit. If you’ve been charged with an offence, there is no guarantee the Crown Prosecutor will offer Alternative Measures as a possible resolution and you should always consider speaking with a Criminal Defence Lawyer before you make any final decisions.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722 (Ext 108).

The stakes keep getting higher

Throughout this website, there are references to the recent changes to the laws in Canada that result in more jail sentences, and longer jail sentences. Here’s another example:

Under the new drug sentencing laws, some drug offences now have mandatory minimum jail sentences, when certain ‘aggravating factors’ are present. Under the old laws, if someone trafficked in a small amount of most drugs (or possessed small amounts of drugs for the purpose of trafficking), the penalty on conviction could range from probation to ‘house arrest’ to a relatively short jail sentence. Under the new sentencing laws, trafficking in small amounts of some drugs in or near schools, or other public places regularly frequented by people under 18 (whether or not young people are present at the time), now may carry a mandatory minimum jail sentence of 2 years, with the Prosecutor holding exclusive discretion to seek the minimum penalty, or not.

Now, more than ever, if you’ve been charged with a drug, or other criminal offence, you need an experienced Calgary criminal defence lawyer in your corner.

If you have been charged with a criminal offence, you need the assistance of an experienced criminal defence lawyer. Call Eleanor Funk today at 403.262.7722
(Ext 108).