The Blog

The Right to Silence

The right to silence is a constitutional right in Canada under s.7 of the Canadian Charter of Rights and Freedoms.

The Police have the right to investigate and question you but you have the right to tell them "I do not wish to give a statement or answer any questions" then remain silent and you should exercise that right to silence. Anything you say to the Police is considered a statement and can be used against you. The Police are sophisticated with their interviewing techniques, but until you speak with a legal professional you can + should stay silent.

Wills, Power of Attorneys, Representation Agreements, and Personal Declarations

Will

A Will is testamentary documents done to set out your last wishes upon your passing. A well-drafted Will can ensure your last wishes are met and reduce confusion for friends & family.

In your Will you will set out your Executor(s) who you appoint to administer your estate and follow things as you've set out in your Will. When drafting your Will, we recommend that you place some thought into the legal rights of children and spouses to reduce the risk of a Wills Variation Action. We highly recommend speaking with a legal professional when drafting your Will to ensure that it is done properly and takes into account all possibilities.

Power of Attorney

A Power of Attorney (POA) authorizes a trusted person (or two, or with alternate) to make financial decisions for you when you are alive, on your instruction. Or, if you are incapable (i.e. significant dementia or a coma), on your behalf. It is a powerful document, and is effective only during your life - once you pass away the POA is no longer valid. It can be used to transfer land, access bank accounts, sign cheques, sign contracts, and more. If you are planning on using it for Land transactions (ie. selling or buying) then there are certain requirements in order to ensure the POA is valid for these specific purposes - something that our office can help with! Contact us to discuss our reasonable rates and ensure your POA is done right.

Representation Agreement

A Representation Agreement (RA) authorizes a trusted person (or two, or with alternate) to make health care decisions for you when you are alive but when you can no longer make those decisions (i.e. significant dementia or coma). It is a helpful and important document which lets your family and medical professionals know who would make those decisions for you if you can't. These decisions can be things such as: where you'd live, the treatment you'd receive, and other medical decisions. We recommend it anytime, but particularly for blended families to ensure everyone knows your choice, and certainly for those where your health is of a concern. This document can be signed with two witnesses (non-lawyers), but we do recommend a review with a lawyer along with signing with a lawyer to ensure a professional has notes about your mental capacity at the time of making. Contact us to discuss our reasonable rates and ensure your RA is done right.

Personal Declaration

A Personal Declaration (or Living Will) is essentially a well-written letter to the world setting out your wishes in the event you are in dire straights, death is imminent, and there is no real chance of recovery. It can be written in many ways, but the standard wording includes "no heroic steps" if you are in extreme pain and no chance of recovery. It is not a legally binding document, but gives those in a position where they are making decisions for you, to let them clearly know your wishes. Having a Personal Declaration can be helpful to ensure that your family and friends can make the tough decisions knowing what you would want.

Electronic Devices and Driving

The Use of an Electronic Device while Driving

Getting a ticket for using an electronic device while driving is costly, and if you receive multiple violations, can result in your license being suspended.

The Motor Vehicle Act prohibits the use of electronic devices while driving. The most ubiquitous electronic device is the cell phone, however, the term does encompass other devices.

In order to prove the offence, the officer must establish “use” of the device. The term “use" is defined broadly and includes holding the device in a position in which it may be used, operating one or more of the device’s functions, and using the device’s speakerphone or voice recognition technology. Even the act of picking up the device to plug it in while driving, is an offence. If its "held by the driver" in a position it can be used, its an offence (hand, lap, wedged). However, as long as the the driver is not operating any of the device’s functions, (GPS has a special exclusion, see below), simply having a cell phone resting in the vicinity of the driver, such as on the center console or on the passenger’s seat, is not an offence, even if it is plugged into the vehicle.

See section 214.1 and 214.2 here: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96318_06#section214.2 (the "Act")

And the related regulation here: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/308_2009 (the "Regulation")

There are significant exceptions to the general rule stated above.

Telephone Use Hands-Free: Perhaps the most important exception is that a driver may use certain functions of the device if the device is “securely fixed” to the vehicle. This means the device must be held in a cradle or similar apparatus that is mounted to the vehicle and does not obstruct the driver’s view of the road. Simply having the device in a cupholder or resting on the center console is not sufficient for these exceptions to apply. While the device is securely fixed to the vehicle, the driver may use the hands free telephone functions and navigation systems for one-touch use (regulations s.7). The driver must not touch the device while operating the vehicle, except the driver may use a single touch to accept or terminate a call. This exception does not apply to Class 7 (novice) or Class 7L (learner) drivers.

GPS Use: GPS has a broader exception (no one-touch restriction as in s.7 for telephone use) but the device must still be mounted and secured (see s.8 of the Regulation), and pre-programmed (see regulation). The "one-touch" rule doe not apply in s.8 exceptions, but certainly you have to keep your eye on the road anyway and not be distracted otherwise, or a "without due care and attention" charge could arise, even if in compliance with this particular section.

If you have received a violation ticket for using an electronic device while driving, please call our office to speak to a lawyer that can assist you. If you want our prompt assistance, email to admin@wozniakwalker.ca, a copy of the Ticket (and a copy of the Notice of Hearing if you have it) and we'll send you our retainer options by email.

Traffic Court - Appear by Phone

Did you know that counsel can appear for disputants by telephone to defend their ticket? Section 15.2 of the Offence Act has long had a specific section allowing Judicial Justices to adopt procedures that are "conducive to justly and expeditiously determining the matter". This original section arguably gave Judicial Justices the right to approve phone appearances by defendants for some time, and was utilized to allow officer's to testify by phone (as well as prosecute). Recently, the legislature passed a new piece of legislation (section 15.2(3) OA), allowing a defendant to defend themselves by telephone. And, via section 57(2) counsel may appear for the driver. This section, in our opinion is permissive. It is an option of the disputant (.. "the disputant... may appear). This section allows disputants to appear to defend their cases where previously it may have been impractical or practically impossible to do so. This makes sense in a mobile world, and in a world where the legislature and the courts have an obligation to facilitate reasonable access to the justice system. As a result it is our opinion all but the most complex matters should be permitted to appear by phone, (or where a phone appearance is simply not possible).

As a result, it is our opinion that the law supports that in all circumstances where counsel is appearing for a disputant, an initial phone appearance should be allowed, to potentially resolve the matter or if a trial is proceeding for the hearing judicial justice, after hearing from both sides (crown and defence) can decide if it is appropriate for a trial in this format. In most cases we respectfully submit, it should be (where counsel is appearing). This is because any defence (most tickets are resolved without hearing), would be by cross-examinations and submissions only (via counsel), relatively easily done by telephone. In this case, there would be no defendant testimony, no exhibits to submit, no translation issues, from the defence side. Accordingly a telephone appearance by counsel is viable, practical, meets the aims of the legislature set out in 15.2(1) and 15.2(3), and meets a fundamental purpose of the court: to provide access to justice.

The pandemic transformed the way people think about accessing services, and the court system has transformed as a result, for the better in all levels allowing remote access. This has given people a practical way to dispute their ticket and access justice. It also, from a broader, and hopefully the court's perspective, is another tool to mitigate the potential for (wrongful) convictions that result automatically when a disputant does not attend (even if the Crown were not present to provide evidence).

In summary, phone appearances are available and most JJ's approve at least a first appearance (not all, but I remain hopeful that is evolving). Given the fundamentals of the court and purpose of the legislation, I am hopeful telephone appearances will continue to be approved generally for counsel to give disputant's a practical opportunity in court. The Judicial Justices have some discretion to deny phone appearances, but in my opinion this should not be done lightly, and should be done only rarely. I look forward to reviewing developments in the Supreme Court on this matter, which I expect will give more certainty to the lower courts and provide more consistency in how and when discretion should be used by the Judicial Justices in requiring disputants to appear in person (per s.15.2(1) OA).

The Blog

The Right to Silence

Wills, Power of Attorneys, Representation Agreements, and Personal Declarations

Electronic Devices and Driving

Traffic Court - Appear by Phone

DISCLAIMER: The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained by a legal professional.