Articles, discussion or information pertaining to criminal defence | Eleanor Funk | Calgary Criminal Lawyer - Part 2

Drunk pilot gets 8 months’ jail sentence

The sections of the Criminal Code that prohibit impaired driving of vehicles on our roadways also apply to impaired operation of aircraft.

On December 31, 2016, the pilot of a plane set to take off from Calgary was removed from the plane after passing out in the cockpit. His blood alcohol levels exceeded three times the legal limit to operate a vehicle, or aircraft. In addition to the co-pilot and other flight crew, there were approximately 100 passengers on board.

Last month, the pilot pleaded guilty to having ‘care and control of an aircraft while intoxicated.’ The Crown sought 1 year jail; defence sought a 3-6 month jail sentence. Today, a judge imposed a sentence of 8 months’ jail – one of the few cases of its type in Canadian law.

If you have been charged with a criminal offence, you need the assistance of an experienced Criminal Defence Lawyer.  Contact Eleanor Funk today at 403.681.9788 or email at info@eleanorfunk.ca

When pot will be legal in Canada; and what the new system may look like

Marihuana may be legal in Canada by July 1 of next year, 2018.  In the next few weeks, the Federal Government will begin to roll out the legislation that will make that happen.

Early reports suggest the Federal Government will set the legal age for the use of marihuana at 18 years old; but will allow the Provinces to increase the legal age within each province.  Just as the legal age for drinking alcohol is different from province to province, the age for the legal purchase and use of pot may differ from province to province.

Each of the Provincial Governments will be able to decide how and where marihuana will be bought and sold; and at what price.  Similar to the way in which Provincial Governments currently control how alcohol is bought and sold.  The Federal Government will be in charge of licencing pot producers.

How much money with the Federal and Provincial Governments make from the sale of legal pot?  Will the police be ready to adapt to these changes in the laws?  Some insight can be gained by looking south of the border, to Colorado – a US State that legalized pot over 4 years ago.

Overall, the legalized system in Colorado appears to have worked well.  They have not seen a spike in teenage use of marihuana; they have not seen an abuse of edible products; and have not seen a real increase in marihuana consumption that some feared might happen with legalization.  The people that did not use marihuana before legalization, continue to not use marihuana after legalization; those that used illegal pot, continue to use marihuana, now in its legalized form.

In the third year, the legalized marihuana industry in Colorado was worth a billion dollars.  The challenges have surrounded how to create the legal framework, from scratch: knowing how to regulate the edible marihuana products was one issue – making sure the THC content in those products was not too high; and not allowing those products to look like candies, or otherwise be too attractive to young people

For now, the production, possession and distribution of marihuana continues to be illegal in Canada; the laws have not changed yet.  As we move forward with the anticipated legalization, expected challenges may include how to tax legal pot at the appropriate rate to minimize an ongoing black market for pot; and how to deal with public safety issues – keeping pot out of the hands of young people; giving police the proper tools to deal with drivers impaired by marihuana.

If you have been charged with a criminal offence, you need the assistance of an experienced Criminal Defence Lawyer.  Contact Eleanor Funk today at 403.681.9788 or email at info@eleanorfunk.ca

Yes, you can video record police actions in public; No, the police cannot take your phone away

Increasingly, we see news stories that include video recordings of police interacting with members of the public.  Unfortunately, the types of videos that most often hit the news are those that include some form or violence or alleged violence on the part of the police.  In cases of alleged police violence, as in cases of all alleged crimes, the persons involved are presumed innocent in law until such time as they are found guilty in court.  Nonetheless, these videos depicting police violence against members of the public are often upsetting.

So what are the rules about filming police actions in public?  There are no rules or laws against filming police interactions with the public.  This includes the disturbing instances of alleged violence; and the good-news stories of police officers interacting with the public in more helpful, kind ways.  The restriction is the filming of a police interaction cannot reach the point of obstructing lawful police work.

If the police want to seize someone’s phone after the person has recorded a police interaction, the police cannot simply take the phone; they cannot merely demand the person hand over the phone to police.  If the police want to take possession of the phone, with the video, they have to do so lawfully – this means, they may ask the person’s consent to surrender the phone; or they may try to get a search warrant to seize the phone.

If you have been charged with a criminal offence, you need the assistance of an experienced Criminal Defence Lawyer.  Contact Eleanor Funk today at 403.681.9788 or email at info@eleanorfunk.ca

Without ever being charged or convicted of drug use, simply admitting to marihuana use could result in being banned from US entry

As Canada moves towards legalizing the use and possession of marihuana, and a handful of American states have already made these legal changes, US border guards can still deny Canadians entry into the US simply for admitting to past marihuana use – even if the person has never been arrested; charged; or convicted in relation to any type of drug offences.

There is a process by which Canadians can obtain a US entry waiver visa – even with such a waiver, individual US border guards maintain discretion to turn travellers away who admit to past marihuana use.

Canadian laws have not yet changed in relation to marihuana, or any other drugs. It remains a criminal offence to possess; traffic in; possess for the purpose of trafficking; grow; import and export marihuana in Canada.

If you have been charged with a criminal offence, you need the assistance of an experienced Criminal Defence Lawyer. Contact Eleanor Funk today at 403.681.9788 or email at info@eleanorfunk.ca

I’ve been arrested. Do the police have the right to take my fingerprints?

Yes.  It is true that every person charged with a criminal offence is presumed innocent until proven guilty in court.  It is true that every person has the right to “life, liberty and security of the person”.  It is true that every person has the right to be free from unreasonable search and seizure.   With all of these truths, it may seem wrong or counter-intuitive for the police to be able to take someone’s fingerprints and photograph while that person is still presumed innocent.

Under a Federal law, called The Identification of Criminals Act, the police may photograph and fingerprint any person charged or convicted of an indictable offence.  Further, the Criminal Code creates a criminal offence of “failing to attend for fingerprints” that allows the police to obtain a warrant to arrest and to charge a person who refuses or fails to show up for fingerprinting.  In 1988, the Supreme Court of Canada considered these powers of the police to take fingerprints in light of every person’s guaranteed Charter rights.  The Court found these police powers to be proper and lawful and not a breach of anyone’s Charter rights.

If you’ve been charged with an offence, and if the police give you a piece of paper called a “Promise to Appear” that includes a date to attend at a police station for the purpose of fingerprinting, your interests are best served by showing up and allowing the police to take your fingerprints; failure to do so will likely result in further criminal charges.

If you have been charged with a criminal offence, you need the assistance of an experienced Criminal Defence Lawyer.  Contact Eleanor Funk today at 403.681.9788 or email at info@eleanorfunk.ca