ICBC Claims Feed

Don't Answer That Phone, You're Driving in BC

jon@dykstraandcompany.com (Blog Author)24684 — Thu, 07 Jan 2010 08:00:00 EST

It's a traffic offence to drive while talking on a cell phone

As of January 1 this year in BC it's a mass return to listening to our radio stations in our cars.

In BC we now have to let our cell phones ring through to voice mail while driving; our government passed a law saying we can't use hand-held devices while operating a motor vehicle.

It turns out though that all of us in BC will effectively have a one-month grace period until police officers issue tickets. I suppose the one-month grace period is designed to give us 30 days to put into practice the art of driving without being on the phone.

If you have a wireless bluetooth ear-piece or some form of ear piece and can dial your phone without using the actual hand-held device, you're in luck in BC. Our law only applies to hand-held devices.

Traffic fine is $167

Don't take this law lightly. It's easy for officers to spot hand-held use and fine is an expensive $167. Surely a chat while you drive is not worth $167.

For those learner or novice BC drivers, you can't even use hands-free devices. The new law mandates that you not talk to anyone except live passengers.

So why the new law that will no doubt impede our driving lifestyle where we evade driving boredom by conversing our entire commutes? Death, destruction, widows, orphans, and injury.

On the one hand it seems odd that it took this long for governments to pass this type of law. On the other hand once the dialogue in North America about passing this type of law started not too long ago, many provincial and state governments are following suit.

So while we've been planning for a January 1, 2010 start to silent driving, or at least returning to our satellite radio players, we have until February 1, 2010 until we'll see the red and blue lights for chatting on the phone.

With mobile phones practically becoming the new personal computer, this type of law will probably get drivers to again focus on driving rather than working and being entertained.

Conditional Threat Can Result in Uttering Threats Charge in BC

jon@dykstraandcompany.com (Blog Author)23189 — Thu, 10 Dec 2009 08:00:00 EST

If you say you will harm a person “if they do or don’t do something” you can be charged and found guilty of uttering threats, an offence set out in section 264.1 of the Criminal Code of Canada.

This type of threat is a conditional threat.

The Ontario Court of Appeal in R. v. Ross (1986) 26 C.C.C. (3d) 413 held that conditional threats are threats under the uttering threats offence.

In the case R. v. Ross, the accused said to a police officer “if he [another officer] does not leave he will be shot.”

The Ontario Court of Appeal in arriving to finding that such a conditional threat is a threat, referred to both the Shorter Oxford English dictionary (Oxford) and Black’s Law Dictionary, 5th ed., 1979 (Black’s).

Oxford def.: a denunciation to a person of ill to befall him; esp. a declaration of hostile determination or of loss, pain, punishment, or damage to be inflicted in retribution of or conditionally upon some course; a menace.

Black’s def.: The term, "threat" means an avowed present determination or intent to injure presently or in the future. A statement may constitute a threat even though it is subject to a possible contingency in the maker's control.

In the end the Ontario Court of Appeal held that “a conditional intention is capable of being an intention” and therefore held that a conditional threat is in fact a threat contemplated under the offence uttering threats in s. 264.1 f the Criminal Code of Canada.

Random Police Breathalyzer Testing for DUI and Impaired Driving?

jon@dykstraandcompany.com (Blog Author)23015 — Mon, 07 Dec 2009 08:00:00 EST

Canadian Justice Minister Rob Nicholson announced in October 2009 that the Canadian government is considering enacting a law that would allow police in Canada to randomly force breathalyzer tests to motorists.

Presently, a police officer must suspect impaired driving before requiring a breathalyzer test. This means a police officer must establish the grounds to ask for a breathalyzer test - such as slurred speech, erratic driving, alcohol odour, physical impairment and so on.

Countries in Europe and Asia have such laws and according to their statistics, car accident fatalities decreased with random breathalyzer testing.

Opponents to the potential law state that random breathalyzer testing would infringe on our Charter rights, and in particular our right against unreasonable from search and seizure.

Another concern is the potential for profiling on race, economic geography, criminal records, driving records (i.e. 24 hour driving prohibitions), and perhaps other profiling.

Time will tell whether Canada follows Europe and parts of Asia with randomized breathalyzer testing.

Delayed breath sample may result in "not guilty" from DUI charge

jon@dykstraandcompany.com (Blog Author)19601 — Tue, 06 Oct 2009 08:00:00 EST

At what point after driving a car can a police officer get a breath sample from a breathalyzer?

Consider this not uncommon situation:

A person driving a car causes a car accident. I’ll call this person driver X. Driver X gets out of the car and remains at the scene. A police officer arrives 15 minutes after the crash. The officer starts investigating the crash, including talking briefly to driver X, then continues wrapping up the investigation. Then, 15 minutes after arriving on the scene – once the investigation is winding down, the officer returns to driver X and offers driver X a ride.

During the second conversation between the officer and driver X, the officer smells alcohol on the driver X’s breath. The officer demands a breath sample. Driver X gives a breath sample and fails. The breath sample is given 18 minutes after the officer arrives at the scene and 33 minutes after the crash.

These were the facts in a recent BC provincial court case (R. v. Redgrave, [2008] B.C.J. No. 938).

The result? Not guilty.

The reason for the ‘not guilty’ DUI decision was that the delay between the time the officer arrived at the scene and the officer demanding a breath sample was unreasonable. As such, the breath sample was not authorized by law, resulting in an unreasonable search and seizure within the meaning of section 8 of the Canadian Charter of Rights and Freedoms.

If there is a delay between the time a police officer arrives at the scene of a crash and demanding a breath sample, and if that delay is long enough – longer than it is reasonably necessary for the officer to investigate (the accident or whatever else is being investigated) – then there is a possibility that the breath sample evidence won’t be admitted in court.

Section 254 (2)(b) of the Criminal Code states “to provide forthwith a sample of breath…”
The word forthwith means immediately.

Accident victims and accident scene safety are always a priority over obtaining breath samples. However, once safety concerns are over, the police officer must investigate for impaired driving. Any delay beyond that which is necessary is unreasonable. When this happens, impaired driving evidence may not be allowed to be used against you in court.

Note: police officer delay is not to be confused with an intentional delay caused by a driver.

No right to a criminal lawyer before roadside breathalyzer

jon@dykstraandcompany.com (Blog Author)19600 — Tue, 06 Oct 2009 08:00:00 EST

Section 10(b) of the Canadian Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

The obvious question arises: Am I entitled to talk to a lawyer before providing a breath sample and/or performing a roadside sobriety test?

Short answer: no.

The Supreme Court of Canada addressed this matter in the case R. v. Orlanski [2005] SCJ No. 37. Canada's top court found that, yes, being pulled over and asking to provide a breath sample is being detained, and therefore one is entitled to a lawyer. However, section 1 of our Charter states that our guaranteed rights are subject to reasonable limits declared by law.

Section 254 of the Criminal Code of Canada, which sets out Canada's criminal offences, declares that upon suspicion of impaired driving a police officer can demand a breath sample and/or demand a roadside sobriety test. Section 254 is a law that limits the 'right to counsel' Charter right. What our top court decided was that demanding a breath sample and/or roadside sobriety test without an opportunity to contact a lawyer is a reasonable law.

What this means is that one is not entitled to talk to a lawyer before breathing into a roadside breathalyzer and/or performing a roadside sobriety test.

3 main criminal offence classifications in Canada

jon@dykstraandcompany.com (Blog Author)17442 — Tue, 25 Aug 2009 08:00:00 EST

If you've been charged with a crime in British Columbia, which court and how it proceeds depends on the classification of the offence. The Criminal Code of Canada sets out 3 main offence classifications which are as follows:

1. Purely summary conviction offence;
2. Purely indictable offence; and
3. Hybrid offences.

The summary conviction offences are the most minor, followed by hybrid offences, and then the most serious offences are purely indictable offences.

The majority of criminal charges in Canada (and therefore B.C.) are hybrid offences. For example, DUI and assault charges are hybrid offences.

Hybrid offences can proceed summarily (less serious) or by indictment (more serious). The prosecutor chooses the classification.

To view a detailed compare and contrast table of the 3 main offence classifications, click here.

How the breathalyzer works and possible ways to defend a DUI charge in BC

jon@dykstraandcompany.com (Blog Author)15961 — Tue, 28 Jul 2009 08:00:00 EST

Police in British Columbia use breathalyzers as one of their primary tools to test for impaired driving. A blood alcohol concentration reading reading above .08 is cause for arrest for DUI / impaired driving.

There are 3 types of machines used to test for for blood alcohol concentration. They are (1) the breathalyzer, (2) the intoxilyzer, and (3) the alcosensor. These 3 devices use different chemical reactions in order to provide a blood alcohol concentration reading.

There are several ways a blood alcohol concentration reading can be inaccurate. If a criminal lawyer can show that the breathalyzer equipment wasn't maintained properly, this could be grounds for the reading not be used in court during your trial. Also, if the breathalyzer machine wasn't calibrated properly, this too could mean the reading (i.e. the .08 and above reading) will not be admitted as evidence during a trial.

These are just two examples of how a criminal lawyer can defend an impaired driving charge. Read our article "Breathalyzers and how a criminal lawyer can defend a DUI charge in BC" to learn more ways to defend a breathalyzer reading of .08 and above.

What must be proved for a criminal conviction in BC

jon@dykstraandcompany.com (Blog Author)15604 — Tue, 21 Jul 2009 08:00:00 EST

Just because you do the act of a crime doesn't mean you'll be convicted in a BC court. The prosecutor must prove beyond a reasonable doubt that you also intended to commit the crime.

This means the prosecutor must prove that you (1) committed a crime, and (2) intended to commit the crime. For example, if you're in a car accident and it's your fault, but you didn't intend to cause the car crash, that isn't enough to be convicted of a crime in BC. If that was the case, many car accidents would result in criminal convictions. However, if you crash your car into someone intending to hit them, similar to intending to punch someone, then you could be charged with assault.

That said, and using the car crash example above, the prosecutor (called Crown Counsel in BC) must prove (1) that you crashed your car into a person and intended to crash your car into a person.

Beyond a reasonable doubt is more than just proving something is more than 50 percent likely. Beyond a reasonable doubt means leaving very little or no doubt in the judge's mind that you (1) did a criminal act, and (2) intended to do the criminal act.

Gordon Dykstra, a criminal lawyer in the firm Dykstra & Company, has over 25 years experience defending people charged with a crime.

BC ignition interlock program for DUI / impaired convictions

jon@dykstraandcompany.com (Blog Author)15119 — Fri, 10 Jul 2009 08:00:00 EST

The Office of the Superintendant of Motor Vehicles (British Columbia) now (as of February 1, 2009) requires drivers to install an ignition interlock device in all vehicles they drive if:

An alcohol-related Criminal Code or Motor Vehicle Act conviction,
Three 24-hour prohibitions within 5 years, or
Two Administrative Driving Prohibitions (ADP) within 5 years.

The more offences, the longer the device is required.
An ignition interlock device requires a driver to breathe into an into a breathalyzer type device before the vehicle will start. If there's alcohol in the breath, the vehcile won't start.

Drivers with the interlock device will need to go to an interlock installation centre every 1 - 2 months to download the information recorded. The yearly cost for an interlock device is $1,600. If a person required to install the interlock device drives another vehicle for work, they need to install a separate device in that vehicle also at an additional $1,600 per year.

Nanaimo signs encourage calling 911 to report drunk drivers

jon@dykstraandcompany.com (Blog Author)14786 — Fri, 03 Jul 2009 08:00:00 EST

The City of Nanaimo, British Columbia is unveiling a project in which it will post signs encouraging motorists to pull over safely and call 911 to report suspected drunk driving.

This initiative is a collaboration of the Nanaimo RCMP, Office of the Superintendent of Motor Vehicles, MADD Canada, the City of Nanaimo and BCAA Traffic Safety Foundation.

Call centres will be set up to serve these calls. The article "Call 911 to report impaired driving: BCAA" in Canadian Driver dated June 23, 2009 sets out the harrowing cost and damage of drunk driving in BC alone.

I note that the road signs to be installed will suggest to "pull over" and dial 911. There's plenty of dialogue these days about banning cell phone use while driving - 25 percent of car accidents are caused by driver distraction according to a recent BC government report. While drunk driving is dangerous to all motorists, so is cell phone use while driving according to some reports (Washington State has a ban on cell phone use while driving). I wonder if cell-phone while driving is banned in BC, whether signs will be installed encouraging calling 911 to report cell phone use while driving. I suppose with today's electronic signs, they could toggle back and forth between messages.

I wonder whether 911 already fields such calls and if so, do police follow up on them? I'll be interested to see how many calls the specially set up 911 call centres will receive reporting drunk drivers and whether sufficient policing resources will be available to go out and follow up on all the tips.

Safe roads are a significant concern to BC citizens. One way to help police, I suppose, is engage the public to get involved.

Dykstra & Company is moving June 24, 2009

jon@dykstraandcompany.com (Blog Author)12084 — Sat, 16 May 2009 08:00:00 EST

On June 24, 2009, Dykstra & Company's office will be moving to:

#201 - 2692 Clearbrook Road
Abbotsford, BC V2T 2Y8
Canada

During this transition our office will be closed from Wednesday June 24 through Wednesday July 1, 2009. We apologize for any inconvenience this may cause. We hope to have our computers up and running by Monday June 29 to check e-mails.

Thank you for your understanding.

Free BC Criminal Law Book

jon@dykstraandcompany.com (Blog Author)12082 — Sat, 16 May 2009 08:00:00 EST

If you've been charged with a crime, you probably need some answers. Gordon Dykstra, the founding lawyer of Dykstra & Company, wrote "Am I Going to Jail?" for people charged with a crime such as a DUI, assault or any other criminal offence in British Columbia. This book is available to you at no cost and no obligation.

Am I Going to Jail talks about the consequences of a criminal record and what you might be able to do to avoid a conviction, get a reduced charge, or a lighter sentence.

Your case may be stronger than you think - and that's the point of the book. Check it out by ordering a the Dykstra & Company homepage - it costs nothing and could help your case.

Dykstra & Company's First Blog Post

jon@dykstraandcompany.com (Blog Author)12079 — Sat, 16 May 2009 08:00:00 EST

Welcome to Dykstra & Company's law blog - all about our law firm and British Columbia law in general. This blog will be about a variety of legal issues - primarily discussing our practice areas which include ICBC claims, WCB appeals, family law, and criminal law. Who knows, we may also diverge a little off the seriousness of law and talk about us and what we're doing other than legal work.

We're thrilled to launch our new all-in-one website and blog for our clients and persons looking for a lawyer in British Columbia.

You can stay up-to-date about our latest articles, announcements, and news items by subscribing to this blog - just click on the RSS button at the top right to subscribe.

Time to hang up the cell phones and start paying attention driving

jon@dykstralaw.com;info@dykstralaw.com (News Author)12108 — Thu, 07 Jan 2010 08:00:00 EST

On January 1, 2010 in BC it became illegal to use a handheld device while driving. If caught, you're looking at a $167 fine. That's pretty steep, but not nearly as bad as causing a car crash.

Personal background checks doubled in BC this year

jon@dykstralaw.com;info@dykstralaw.com (News Author)11670 — Thu, 10 Dec 2009 08:00:00 EST

On December 10/09 the Province Newspaper reported that personal background checks have doubled in BC this year.

More and more occupations require personal background checks that include criminal record checks. This means that having a criminal record makes it harder to get more and more jobs.

If you've been charged with a crime, don't simply plead guilty no matter how good you think the sentencing deal from the prosecutor is. Find out if you have a defence. The best outcome is a "not guilty" verdict or the charges being dropped.

Lawyer claims Chicago officer made false DUI arrests

jon@dykstralaw.com;info@dykstralaw.com (News Author)10738 — Wed, 07 Oct 2009 08:00:00 EST

A Chicago lawyer for a man who was arrested for DUI claims the arresting police officer had no grounds for the DUI arrest. The lawyer bases the claim on the video footage of the roadside sobriety test performed by the arrested man. Read the entire lawyer DUI story by Kristen Schorsch in the Chicago Tribune newspaper here.

BC jails overcrowded according to guards

jon@dykstralaw.com;info@dykstralaw.com (News Author)9984 — Fri, 14 Aug 2009 08:00:00 EST

Some British Columbia jail guards report that BC jails totally overcrowded - in some cases have twice as many people for which the jail was built. In 2002 and 2003 the BC government closed facilities and laid off guards. Read more about BC jail overcrowding here.

Taser maker not happy with BC findings

jon@dykstralaw.com;info@dykstralaw.com (News Author)9986 — Fri, 14 Aug 2009 08:00:00 EST

Taser maker is going to court in BC to challenge the BC findings on Taser safety. Specifically, Taser isn't happy about the "19 recommendations on police use". These recommendations are a result of the investigation and inquiry on the death of man in Vancouver International airport. Read more about Taser's challenge here.

102,000 reported drug offences in 2008 in Canada

jon@dykstralaw.com;info@dykstralaw.com (News Author)9629 — Tue, 28 Jul 2009 08:00:00 EST

The latest Statistics Canada report concludes there were about 102,000 reported drug offences in 2008. Half of those were the drug charge "possession of cannabis" - a 5 percent increase from 2007.

In 2007, 13 percent of all cannabis offences were for trafficking and 11 percent for production. 60 percent of cannabis production were in a residence, 32 percent in an open field, and 3 percent in a commercial location.

Read the full Statistics Canada Study: Trends in police-reported drug offences here.

More drug enforcement on the Canada-US border

jon@dykstralaw.com;info@dykstralaw.com (News Author)9630 — Tue, 28 Jul 2009 08:00:00 EST

The U.S. Border Patrol tripled the number of agents along the Canada-US border and will soon use unmanned surveillance aircraft to further monitor the border.

Two drugs Canada exports to the USA are marijuana and ecstasy laced with crystal meth. In return, cocaine is smuggled into Canada from the USA. In 2006 5.2 million ecstasy dosage units was seized while cocaine seizures tripled from 2004 to 2006. Much of the Canada-US border is not patrolled and is very remote making it difficult to stop the cross-border trafficking.

According to Rob Gordon, a criminologist with Simon Fraser University, B.C. marijuana exports is British Columbia's third largest industry behind tourism and logging.

Read more about cross-border drug smuggling between Canada and USA here.

We now accept Visa and MasterCard

jon@dykstralaw.com;info@dykstralaw.com (News Author)9556 — Wed, 22 Jul 2009 08:00:00 EST

We're pleased to announce we now accept Visa and MasterCard. Note that we still do contingency fee arrangements for ICBC claims, and in some circumstances, WorkSafeBC appeals. This means we don't collect a fee until you collect.

However, if you've been charged with a crime such as impaired driving, DUI, assault, or a drug charge; injured at work and have a WorkSafeBC claim or appeal, or have a family law matter such as getting a divorce, you can now retain Dykstra & Company using Visa and MasterCard.

New Surrey Law Office

jon@dykstralaw.com;info@dykstralaw.com (News Author)9509 — Tue, 21 Jul 2009 08:00:00 EST

Dykstra & Company has expanded with a Surrey law office located at #202-15388 24th Avenue, South Surrey, BC V4A 2J2. If you have an ICBC claim, been charged with DUI, assault, or drug charges, have a WorkSafeBC appeal, or a family law matter in and around Surrey, BC, Dykstra & Company is now located in the Surrey area to serve you.

Located on 24th Avenue, just west of the King George Highway in South Surrey, our new office location expands our ability to serve clients throughout the Lower Mainland.

Breathalyzer in every car?

jon@dykstralaw.com;info@dykstralaw.com (News Author)9382 — Fri, 10 Jul 2009 08:00:00 EST

In the USA, Congress has a pending bill which would require persons with multiple DUI / impaired convictions to pay for and install interlock systems in their vehicles. An interlock system is a breathalyzer system which will prevent a vehicle from starting if alcohol is detected.

Mothers Against Drunk Driving (MADD), along with the Alliance for Automobile Manufacturers and the Insurance Institute for Highway Safety have been influencers in the interlock system push in the USA.

Read more about this in the Time Magazine article "Coming Soon: a Breathalyzer in Every Car".

British Columbia has the highest drug crime rate in Canada

jon@dykstralaw.com;info@dykstralaw.com (News Author)9298 — Fri, 03 Jul 2009 08:00:00 EST

British Columbia, as of 2007, has the highest drug crime rate in Canada. Additionally, Vancouver is the city with the most drug crimes in Canada, followed by Victoria and then Abbotsford.

Cannabis (marijuana) accounted for two-thirds of all reported drug crimes; however the use and production of synthetic drugs in Western Canada is on the rise. Read more...

Our firm newsletter is available for free download

jon@dykstralaw.com;info@dykstralaw.com (News Author)9299 — Fri, 03 Jul 2009 08:00:00 EST

Dykstra & Company, Lawyers, published their first newsletter in June 2009 coinciding with their move to #201-2692 Clearbrook Road, Abbotsford, BC. The newsletter is called the Bulletin and is available in PDF for a free download here.

Dykstra & Company hope to publish the Bulletin two times per year - its intention to keep clients up-to-date about the firm and offer informative articles. If you wish to receive a hard copy of the Bulletin, please click here and complete the contact form. In the form please specify you would like a hard copy mailed to you.

The Spring 2009 issue introduces our new website, our new office, our technology endeavours, and an informative cycling article.

Passports now required when driving to the USA

jon@dykstralaw.com;info@dykstralaw.com (News Author)8889 — Thu, 04 Jun 2009 08:00:00 EST

As of June 1/09 you need to bring your passport, enhanced driver's licence, or nexus card when going to the USA. However, the rule will be "gently enforced". Read more about what to expect "for now" if you don't have your passport with you when driving to the USA.

We're moving on June 25, 2009

jon@dykstralaw.com;info@dykstralaw.com (News Author)8607 — Tue, 19 May 2009 08:00:00 EST

After 26 years on McCallum Road, Dykstra & Company is moving. Our new address as of June 25, 2009 will be:

#201 – 2692 Clearbrook Road
Abbotsford, BC V2T 2Y8.

All our other contact information (telephone, e-mail and fax) is staying the same. Just so you know, while we make our transition, our office will be closed from Wednesay June 24, 2009 through Wednesday July 1, 2009. We apologize in advance for any inconvenience this may cause.

Why are we moving?

Gordon J. Dykstra opened his law office at the McCallum Road location in 1982. In 2005 his son, Jon Dykstra, joined him. Since then, the firm has grown and expanded to include new staff. Our growth has meant that we’ve outgrown our old offices and need more space.

MRI or CAT Scan?

jon@dykstralaw.com;info@dykstralaw.com (News Author)8665 — Tue, 19 May 2009 08:00:00 EST

MRI or CAT scan? When should either be used? Car accident injuries and many other injuries are sometimes hard to diagnose. Proper imaging procedures can help a great deal in diagnosing - but it's not always clear which imaging procedure is best. Read and watch (1.06 minute video) Paul Christo, M.D., Director, Pain Treatment Center, Johns Hopkins Hospital and Health System explain the difference between an MRI and CAT Scan on abc News Health website.

abc News Health website offers plenty of infromation, articles, and videos about many health issues - including pain treatment.

Dykstra & Company Launches Our New Website

jon@dykstralaw.com;info@dykstralaw.com (News Author)8608 — Sat, 16 May 2009 08:00:00 EST

Obviously if you're reading this you're on our new website. We're very proud of it and hope that it will offer lots of information about us and about our legal practice areas.

We will add new articles weekly and monthly. We will alert our clients and readers to our new articles on our blog. When we find relevant and interesting news items, we'll post it for you.

Our goal is that dykstralaw.com will be a resource for our clients and for anyone who is injured in a car accident, injured at work, going through a separation or divorce, or charged with a crime.

We welcome your comments and questions - just contact us by telephone or the contact boxes on this site.

Drinking and Driving Still on BC Roads

jon@dykstralaw.com;info@dykstralaw.com (News Author)8613 — Sat, 16 May 2009 08:00:00 EST

Early in 2009 the RCMP in the Okanagan made numerous drunk driving arrests as a result of their anti-drinking and driving campaign. Check out the PentictonWesternNews.com article Police see no shortage of impaired drivers.