Articles, discussion or information pertaining to criminal defence | Eleanor Funk | Calgary Criminal Lawyer - Part 3

A few words about the presumption of innocence…

In the last few weeks Calgary has suffered a devastating loss after the discovery of the senseless murder of a young mother and her very young daughter. Crimes like this are almost impossible to understand. Emotions run high; public opinion about any person charged with the deaths is strong; and we all grieve for these tragic losses.

In the midst of this grieving, we can honour the lives lost while also remembering the appropriate role of our Justice system in dealing with all accused persons, from the most minor of crimes to the most serious: every person charged with any crime is presumed innocent until, and only until, a court of law determines the person’s guilt. The police; the Prosecution; the Defence; and the Court all play very important roles in ensuring the system works properly. We remember the importance of the presumption of innocence because when shortcuts are taken and we rush to quick judgments, we can get wrongful convictions.

We honour the loss of these young lives without jumping to conclusions about the guilt of any persons charged; we grieve for the heartbroken families and friends while allowing the Justice system to do its job, knowing that within the Justice system the facts will be presented by the Crown; tested by the Defence; and ultimately determined by the Court.

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.

Is it illegal to carry large amounts of cash? Can the police seize my cash, even if I’m doing nothing wrong?

Cash, alone, is not illegal. If the police find you in possession of large amounts of cash, they may seize the money and keep it for 90 days, or longer, even if you are not charged with any criminal offences. And you may have to pay a lawyer to help you get your money back.

When the police find people in possession of large amounts of cash, they are naturally curious and suspicious about the source of the money. Even though there are many legitimate cash-based businesses, there are also a number of illegitimate cash-based businesses.

Most often if the police find a person in possession of drugs (even if only a small amount of drugs) and a large sum of money, the police may arrest and charge the person with possession of the drugs (or possession of drugs for the purpose of trafficking) and ‘possession of property obtained by crime’ in relation to the money – the allegation being the money must have come from drug trafficking.

Sometimes the police will seize large sums of money and charge a person with ‘possession of proceeds of crime’, even if they don’t find any drugs or any other indication of criminal activity. Sometimes the police will seize the money and not charge the person with any criminal activity at all. If this happens, you will mostly like need to hire a criminal defence lawyer to help you fight the criminal charges in court; or if you are not charged with any offences, you may have to hire a lawyer to help you make an application in court for the return of the money. The Criminal Code allows the police to seize and hold property, including money, for up to 90 days even if no one is charged with any offences. After 90 days, the owner of the property / money may bring an application in court for the return of the property.

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.

New Supreme Court Decision May Result in More Cases Thrown Out for Unreasonable Delay

The Canadian Charter of Rights and Freedoms guarantees every person charged with an offence to be tried within a “reasonable time”. Once the time to get to trial becomes “unreasonable” judges can dismiss (i.e. throw out) the charges if it’s determined the accused persons’ Charter rights have been violated.

Determining when delay is “reasonable” and when delay becomes “unreasonable” is an issue many courts have grappled with over the years; resulting in inconsistent and unpredictable outcomes, and no real certainty in answering this question.

Last week, the Supreme Court of Canada revisited the legal test to be applied in determining whether or not trial delays are reasonable – under the new test, courts may be throwing out more cases and the various levels of government may have to respond by hiring more prosecutors and judges in an effort to reduce court delays.

Under the old test, an accused person would have to demonstrate some sufficient degree of “prejudice” to his / her Charter rights (security of the person; liberty; fair trial) before courts would dismiss charges. Under the new test, the law will impose “presumptive ceilings” (18 months for trials in provincial courts; 30 months for trials in superior courts). Once cases exceed these limits, prosecutors will have to justify the delays by showing some “exceptional circumstances”.  Absent exceptional circumstances, the charges should be dismissed.

At the time of the new Court ruling, there are tens of thousands of criminal cases already in the system; while the new rules will apply to these existing cases, they will be applied with some flexibility to allow the court system time to adapt to the new rules. We won’t see tens of thousands of existing cases thrown out immediately; over time though, the new legal framework should result in more charges being dismissed if the court system cannot accommodate trial times within these limits.

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.

Calgary Cops Bust First Fentanyl Drug Lab

After speculation about HazMat members coming and going from a house in SE Calgary for the past few days, reports now suggest Calgary Police may have discovered the first fentanyl lab in Calgary. The police have not yet completed the search, and no one has been arrested or charged at this time.

Fentanyl is a fairly new drug to Calgary. The police have been providing public warnings about the dangers of this manufactured drug for the past several months.

Legally, Fentanyl is included in Schedule I of the Controlled Drugs and Substances Act, along with the other “big” drugs, including cocaine; morphine; heroin, etc.  As the police conduct more fentanyl investigations, and these cases start making their way through the criminal courts, it’s expected the Crown and Court will take a very serious view of this drug and will impose tough sentences for those convicted of trafficking and producing fentanyl. For those convicted of producing any schedule I substance, there is a mandatory minimum jail sentence of at least 2-3 years jail.

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 need to hire a Criminal lawyer. How much will it cost?”

This is a question that everyone has; and an answer everyone deserves to know.

Unfortunately, it’s a question your lawyer will not be able to answer in the first conversation, or maybe the first few conversations.

No two Criminal files are the same. When I meet with a new client and try to answer this question, I always explain that I need to see all, or most, of the disclosure before I know how complicated the matter might be; how time consuming it might be; how much court time might be involved; are we likely to get the Crown to drop the charges, or will we have to fight it out?  These are all answers I need to know before I can provide an accurate fee quote. Without this information, trying to give an accurate fee quote is a bit like trying to forecast the weather next month.

Most lawyers, including me, will ask for an initial retainer (fee) in order to open the file; order disclosure; start making court appearances, etc.; and then will provide an accurate fee quote at the earliest opportunity once we start to receive and review the disclosure.

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.

Being Rude is Not a Crime

We’ve seen recent stories in the media that go something like this: a drunk person gets into a cab; the drunk person is rude to the cab driver; perhaps the drunk person uses racial slurs in this rude behaviour to the cabbie.  Most, if not all, taxis in Calgary are equipped with audio / video cameras, so this rude behaviour is captured on video. When these stories hit the media, they get a lot of attention because the general public gets to see the drunken rudeness – and everyone gets to weigh in with their opinions.

If racial slurs are used, the media reports will often say the person has been charged with “hate crimes”. Is this drunken rudeness illegal? Is it a crime?

First, racial slurs, generally speaking, are not a crime; and they are not a “hate crime”.

Sometimes, if the taxi passenger is being rude and says something along the lines of “I’m going to fuck you up”, to the cab driver, the police may charge that person with “uttering threats”. Are these words a “threat” in law?  That depends. Most times the charge of “uttering threats” is actually an allegation of “uttering threats to cause death or bodily harm”. Those words (“I’m going to fuck you up”), together with clenched fists, or a weapon, or some type of threatening gesture may meet the legal test for uttering a threat to cause death or bodily harm. If those words are not accompanied with any type of threatening gesture, it may be very difficult for the crown to prove those words, alone, conveyed a threat to cause death or bodily harm.

The bottom line is this – being rude to taxi drivers, or anyone, is never acceptable. Racial slurs are never appropriate. But these types of words / actions are not necessarily a crime.

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 I talk to the police?”

This is a question many people ask Criminal lawyers. The answer is very straight-forward: if you are under arrest; or if you have been detained as part of an on-going police investigation; or if you are a suspect in a crime; or if you are a friend or family member who may know something about a crime, you have no legal obligation to speak to the police.

What this means is, the police cannot force you to talk to them. You cannot get into any trouble for not talking to the police.

I always tell clients, when they ask this question, “You have no idea what information the police have about you; you have no idea what the police are looking for.  Why would you help the police find information they will likely want to use against you?”

The police can and will use all sorts of tricks to try to get you to talk: “you’re not a bad person”; “we’re just trying to get to the bottom of this”. The police are also allowed to lie to you: they may say they have evidence against you that they don’t really have (e.g., the police may say they have your fingerprints, even if they don’t have them; they may say that someone gave a statement against you, even if no one gave a statement). The law allows the police to use these tricks. The bottom line is this: you do not have to talk to the police.

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.

Assisted Suicide is now Legal in Canada – where does this leave patients?

A year and a half ago, the Supreme Court of Canada struck down the Criminal laws against assisted suicide. At the time, the Court gave Parliament 1 year to enact new laws; the new laws are to create a legal framework for medical professionals to legally assist patients with their deaths. With the election and change in Federal Government, the Court granted a further extension, to June 6, 2016.

As of today, the Liberal Government missed that June 6th deadline to pass the new laws, meaning until a new law is in place there are no laws in place neither prohibiting nor creating legal guidelines for medically assisted death. One of the criticisms with the newly proposed law is that it is too restrictive in granting access to patients who may wish to seek medical assistance at the end of their lives.

In the interim, each Province can create their own protocols for doctor-assisted death, which may result in a patch-work of inconsistent practices across the country and inconsistent access for patients looking for this type of medical assistance.

Some doctors will start assisting patients immediately, now that the procedure is no longer illegal. Through the Supreme Court ruling, doctors have guidelines on which patients may be eligible for this assistance.

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 will police deal with “drug driving” when pot is legal in Canada?

Driving while impaired by drugs is already a criminal offence in Canada.  Presently, if the police suspect a driver is impaired by drugs (or a combination of drugs and alcohol), the police may demand the driver submit to a serious of tests performed by an officer designated as a “drug recognition expert”; the results of these tests may lead to the police demanding a blood or urine sample from the driver, to send for analysis to test for the presence of drugs.

As Canada moves towards legalizing marihuana in the near future, one question is how police will detect illegal marihuana limits in drivers without a blood or urine sample; and how much marihuana will be allowable for legal driving.  Unlike DUI / alcohol, where the law is clear the legal limit is .08, there is no such limit for how much marihuana may be allowed in a person’s system to lawfully operate a vehicle, once marihuana is legalized.  Also, unlike DUI / alcohol investigations, where police have road side devices and breathalysers to measure blood-alcohol concentration, so far, there are no such devices to measure the amount of marihuana in a driver’s body.

For now, marihuana is still illegal in Canada – it is a crime to possess; traffic; possess for the purpose of trafficking; produce / grow; and import /export 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.

Canada to Legalize Pot in Near Future

The federal government introduced today, April 20, it intends to introduce legislation in the Spring of 2017, to legalize marihuana. The new laws may be in place by 2018.  Today’s announcement signals a dramatic change in the Government’s approach to drugs and the “war on drugs”.

While none of the details of the proposed legislation are known at this time, there are hopes it will include increased access to drug treatment programs. Once the laws change, Canadians will likely see legal marihuana shops popping up, as well as regulations for the legal sale and possession of marihuana.

For now, marihuana remains an illegal substance in Canada – this includes possession; production / growing / cultivating; trafficking; possession for the purpose of trafficking; and importing / exporting.

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.