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

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

Edmonton police lay ‘manslaughter’ charge in fentanyl-related death

In a rare move, and in response to the rising death toll from fentanyl use, police in Edmonton have charged an alleged drug trafficker with “manslaughter” following the death of one of his alleged drug customer’s fentanyl overdose. In January of this year, the individual was found dead as the result of an apparent drug overdose. The police have now charged the alleged dealer with manslaughter in relation to that death.

A charge of manslaughter does not require proof the alleged dealer intended the death or planned the death; rather “manslaughter” requires proof of an unlawful act (here, the alleged unlawful act is providing the drug), knowing the unlawful act is likely to cause bodily harm; and that death was caused by taking the drug.

While this case is still before the courts, and the alleged dealer has not been convicted of any offences, this is a further example of the tough stance law enforcement intends to take in response to fentanyl trafficking and its side effects.

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

Alberta judge hands down 5 ½ year sentence in fentanyl case: calls the drug a ‘scourge that has to stop’

Yesterday, in an Edmonton court, a 21-year old offender, who pleaded guilty to a number of drug-trafficking related offences, including having 1000 fentanyl pills, received a 5 ½ year jail sentence.

Calling fentanyl a ‘scourge that needs to stop’, the Judge indicated he would have handed down a longer sentence, but for the young age, lack of criminal record, and remorse of the offender.

By way of context, convicted drug dealers in Alberta often received jail sentences in the 3-4 year range for similar quantities of drugs where the offences involve cocaine or MDMA. The Court of Appeal of Alberta has set a ‘starting point’ sentence of 3-years jail for most street level types of cocaine trafficking cases.

What makes this case different?  Why was this sentence longer? The answer is simple: because the drug was fentanyl. Drugs like cocaine, MDMA, heroin have historically received higher jail sentences than many other drugs because of the addictive nature of these drugs. In 2015, there were close to 300 fentanyl-related deaths in Alberta; more are expected in 2016.

As police in Alberta continue to investigate and lay charges in fentanyl cases, and as these types of cases move through the court system, it is expected Crown Prosecutors will seek higher sentences for offenders convicted of offences involving fentanyl; and the Courts will likely respond with longer jail sentences for these offences.

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

Canadian doctors weigh in on the legalization of marihuana

As Canada moves closer to legalizing marihuana, the Canadian Medical Association has weighed in with its recommendations. With concerns over the long term effects of marihuana use in young people; the group suggests any legalization of pot should be limited to those aged 21 years and older. The group of doctors also suggests limiting the amount of pot any one person can purchase at a time; restricting marketing practices (similar to restrictions on cigarette marketing); and banning high-potency pot products, like marihuana cookies and other edibles. Critics are worried these types of regulations will push young people to continue to buy and use ‘black market’ marihuana.

As the government moves toward legalization of marihuana, it will continue to consult with a number of interest groups. For now, the possession, production and sale of marihuana remains illegal 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.

Should texting and driving be a crime?

As most provinces in Canada move to increase penalties for distracted driving, police are catching more distracted drivers than impaired ones. Presently distracted driving is treated as on offence under the Traffic Safety Act in Alberta, and similar provincial statutes across Canada – that is, it’s a traffic ticket, with penalties including fines and in some provinces, like Alberta, demerits.

A number of stake holders are urging Parliament to change the Criminal Code to create a criminal offence for those caught distracted driving – such a change to the law could increase the penalties for those convicted of distracted driving to include jail, and the long term stigma and consequences of a criminal conviction.

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.

How smoking pot can keep you out of the U.S.

If you are asked at the U.S. border if you’ve ever smoked pot, and if you answer ‘yes’, you may face a life-time ban from entering the United States. Under the little known American Controlled Substances Act, an admission to smoking pot is as good as a conviction in terms of keeping you out of the U.S.  American border guards can refuse entry into the U.S. even though marihuana is legal in a number of States and is likely soon to be legal in Canada.

Faced with this type of travel ban, Canadians may apply for a U.S. Entry Waiver Visa – once granted these waivers must be renewed regularly and involve police checks; fingerprints; and medical exams by U.S. approved doctors. These waivers presently cost $750 but are anticipated to go up to $1200. Nexus holders, who can normally fast-track at the border, could lose their Nexus passes for life if given this type of travel ban into the United States.

One option for travellers asked this question at the border is to refuse to answer; return to Canada; and hope the question is not asked the next time.

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.