Smartphone? Set Up A Passcode Now

Today, more and more of us are carrying around Smartphones. I know my iPhone is usually within arm's reach. Have you ever thought about how much personal information is stored in your phone? Names of contacts, phone records, and text message conversations. So much of our conversations are now happening over text message which is incredibly convenient but it also documents and logs information in your phone the way a telephone conversation doesn't. Oh, and internet browsing history is saved on your phone too.

If you own a Smartphone, you need to make sure you are protecting your data from unwanted eyes. In my experience, police officers definitely meet the criteria of "unwanted eyes." But if I have nothing to hide, why do I need a passcode? The simple answer is that you should value your privacy, whether the information you want to keep private is a record of your criminal dealings or not. Most importantly, if you have any information on your phone that you don't want a complete stranger to see, you need a passcode.

Here's another reason, if the police can access your phone, they may be able to use it to further their investigation or for a more nefarious reason. I had one case where a client was under arrest for a drinking and driving. He was handcuffed and placed in the rear of a cruiser car. His Blackberry was in his vehicle, which was now parked on the side of the road. He was able to escape from the cruiser car and and he ran away, cuffs and all. At some point after his escape, his Blackberry accessed his FaceBook page and posted that he was a jerk. It didn't really say jerk, but something along those lines - just a bit more crass. I suppose it is possible the tow truck driver could've accessed his phone but it seems more likely it was the police officers. Was he being a jerk... yeah sure, he escaped lawful custody. Should someone else have used his phone and posted that on FaceBook... no. Absolutely not. And to be honest, there isn't a lot he can do after the fact to get justice from the police officers. With any anecdote I tell involving police misconduct, I like to always state the following:  police officers are people and like people there are always good ones and bad ones. Never let one bad egg spoil the rest. I know many outstanding officers who work hard to uphold the rights of citizens and I appreciate they have a job not many of the rest of us can or want to do.

I also recommend using a passcode lock that uses either numbers or letters. If a picture of your face can unlock your phone (like on some Android devices) or your fingerprint on the new iPhones, it is possible to unlock your phone even if you don't want to unlock your phone. Someone can just place your finger on the phone or hold it near your face and they now have access to everything. Use a passcode that is stored in your head. And don't fall prey to tricks from police officers like, "You have to tell us your passcode" or "We will find out all the information anyway." If the police think they can bypass Blackberry or Apple's security, let them put in the effort of trying. Don't just hand over your passcode.

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Are you guilty?

Oftentimes, when I sit down with my clients for a first meeting, they have already decided that they must plead guilty. After all, the police wouldn't have charged them if they weren't in the wrong, right? My job is to look closely at the case and determine if there are facts that would prove a criminal act occurred and if there are issues that could be raised at trial that would raise a reasonable doubt about guilt. In more simple terms, there are two types of guilty:  factual guilt and legal guilt.

Factual Guilt

Factual guilt means that you actually broke the law and committed the act. For example, if I was to punch Jerry in the face, I would be factually guilty. Sometimes, people are charged with a crime when they are factually innocent.

I had a case once where the police charged a client with unsafe storage of a firearm or ammunition. The client had a box of shotgun shells in his room but he didn't own a firearm, his roommate did though. The argument by the police and the Crown Attorney was that the ammunition was stored unsafely. I examined the Criminal Code along with the Firearms Act and Regulations and I did not think the law made it illegal to have shotgun shells in a bedroom. I did not think the client was factually guilty in that case. Ultimately, the Crown Attorney dropped those charges after some significant pressure from me. This was a case where a person did nothing wrong but was still charged with a crime.

Legal Guilt

Legal guilt means can the Crown Attorney prove beyond a reasonable doubt that you are criminally responsible. In some cases, the Crown Attorney may not be able to prove you are guilty in court.

1.  Witnesses - the Crown Attorney must be able to have all of the necessary witnesses or complainants attend court. If a key witness or complainant moves away or loses contact with the Crown Attorney's office, it may become impossible to prove the case in court. Having said that, it is a criminal offence (and a very serious one at that) to try and pressure or influence a witness from attending court. If you do that, you could be charged with obstruction of justice and face a serious jail sentence. Basically, the justice system makes it clear that witness tampering is serious and will be met with serious penalties.

2.  Breach of Charter rights - we have the Canadian Charter of Rights and Freedoms in Canada, often called "the Charter" for short. It contains legal protections to people in Canada in sections 7 to 14 (link) like the right to be free from unreasonable search and seizure and the right to obtain and instruct a lawyer without delay upon detention or arrest. If the police conducted their investigation improperly and did not follow one of the rules in the Charter, you can apply to the court to have evidence excluded (like a statement or breath samples in DUI cases) or you can apply to have the court enter a judicial stay of proceedings (drop the charges), but that is quite rare. For example, if you are facing a charge of simple possession of marijuana but the drugs are excluded by the judge after a Charter breach is argued, the Crown Attorney is then unable to prove its case.

3.  Active defences - in some cases, you can argue an active defence like self-defence or necessity where you agree as to the facts of what happen but that you are not criminally responsible because you had a defence. For example, if I punched Jerry in the face because he was pointing a loaded gun at me, I think using a punch to combat potentially deadly force would be a great example of self-defence. It would also make me incredibly brave, or foolish, or both. To be frank, these cases are quite rare. In many cases where people claim it was self-defence, the legal test says that they used too much force and are guilty because they went overboard. It is important to ask a lawyer if an argument of self-defence could be possible or not. Necessity defences are very tough because many judges would look for alternative non-criminal choices that would have been available and agree you could have done something else.

Where The Two Meet

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Domestic Violence - Drop the Charges

In my practice, the two most common types of cases I see are DUIs and domestic assault. Domestic assault would include any sort of assault charge like simple assault, assault causing bodily harm, assault with a weapon, and aggravated assault. It would also include utter threats (to cause death or bodily harm). Domestic charges are between two people were in a romantic relationship at the time of the allegation including dating, common law, or marriage.

Now, many accused individuals want to know how the charges can simply be dropped. What many people do not understand is that the decision is NOT up to the victim, the complainant, or any witness. The decision about whether to proceed with charges or not is only up to the Crown Attorney. Having said that, many Crown Attorneys consider the input from victims and complainants.

In Manitoba, there is a government agency called Victim Services that is designed to help provide information and support to victims and complainants. Victim Services relays information to the Crown Attorney's office. To phone Victim Services in Winnipeg you can call (204) 945-6851. 

So, even if the victim or complainant does not want to come to court or testify, that decision may not be up to him or her. If the Crown Attorney is proceeding with the charges and a trial date is set, any witnesses that are needed for trial will be served with a subpoena (or there will be an attempt to serve them with a subpoena). A subpoena is a court order that requires a witness to attend court and provide evidence (testimony). If a witness is served with a subpoena and does not attend court, the Crown Attorney can request a warrant for his or her arrest. If a witness attends court and refuses to testify, the Judge may hold the witness in contempt of court - which is a criminal charge. Court proceedings are serious and many people need to learn that the charges may not simply be dropped if someone does not want to testify. That's why I recommend everyone who is charged with a domestic charge to contact me so you can have a criminal defence lawyer on your side. Criminal charges are serious and you need help to face them in court.

In almost every domestic violence case, there is a no contact order put in place either by the police or by a Judge. Sometimes, the victim or complainant requests a no contact and in other cases they don't, but it is up to the police or the Judge to decide what conditions are appropriate for bail. The order is on the person who was charged, which means he or she cannot contact or communicate with the victim or complainant. Typically, the no contact order is only one way - and the victim or complainant is legally allowed to contact the accused but if the accused responds, then the accused is breaking the law and can be charged with a new criminal offence. The accused can apply to delete the no contact order but it is in effect until the change is approved by a Crown Attorney or a Judge. 

The Criminal Code tells us that when someone is sentenced for a domestic violence crime, the judge must impose a more severe punishment. In other words, we want to deter crimes against domestic partners because the trust in the relationship is abused when there is domestic violence. Crimes against children and police officers also require a more severe punishment after a guilty plea or conviction. The consequences can be serious and long-lasting, so if you are charged with a domestic violence offence, you should contact me immediately to set up an appointment. Click here to visit the Contact page.

Related articles

• Domestic Assault (michaeldyck.ca)
• Preventing a Break and Enter in Your Home: Tips From a Criminal Defence Lawyer (michaeldyck.ca)
• Can you have alcohol in your car? (michaeldyck.ca)
• Cell phones and driving in Manitoba (michaeldyck.ca)

About the author

Michael Dyck is a partner at Rees & Dyck Criminal Defence. He represents clients primarily from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit his partner's website TomRees.ca.

Firearms in Canada - Basics

Heads up! These are very simplified definitions about firearms that are designed to give you some basic knowledge. In reality, the rules and laws around firearms are more complex and detailed. If you have a specific question, please contact me to answer your questions or seek legal advice.

I have found many people do not understand some basics about firearms in Canada, including how you can get a firearm, who can get a firearm, and what kind of firearm you can buy. I think firearm are fascinating and the laws around them are technical and challenging.

In Canada, you need to have a firearms licence to be able to purchase, own, and store firearms and to purchase ammunition. If you do not have a licence, it is probably illegal for you to own or store a firearm. If you applied today, you would apply for a Possession and Acquisition Licence, also called a PAL. Much like a driver's licence, you need to take a course before you can apply for your licence called the Firearms Safety Course. You can contact Dennis Wiebe with 1st Shot Firearms if you want more details about taking the course. The course usually costs around $80. You could also simply challenge the exam too, if you are so bold. After you successfully complete the course, you apply to the government for you licence. The application form is lengthy and requires a photograph and two references. It is designed so that unsafe or higher risk individuals do not qualify for a firearms licence. The application fee is around $60-80. If your application is granted, you will be issued your PAL and your licence will arrive in the mail.

There are three classes of firearms in Canada.

1. Unrestricted firearms:  these are typically called long rifles and they include shotguns and rifles. The entire length of the firearm has to be a certain amount, so the barrel or the stock cannot be too short. Semi-automatic firearms are allowed along with bolt action, pump action, and single shot. For some of these rifles (semi-automatic centrefire), there is a maximum magazine of 5 rounds. You can use these types of firearms for hunting and target shooting.
2. Restricted firearms:  these are typically handguns and shorter barrelled rifles. Once again, the entire length of the firearm has to be a certain amount. Some handguns are considered too small and are not in this group. Once again, they can include semi-automatic firearms. You can only use these types of firearms for target shooting at a gun range. There are very strict rules about transporting these types of firearms and you are only permitted to go directly from your home to the gun range. You must get an Authorization To Transport (ATT) certificate and have it on you at all times.
3. Prohibited firearms:  these are typically firearms that only police or military can possess. They include small handguns, fully automatic firearms, larger magazine semi-automatic centrefire, and smaller rifles. In criminal cases, we sometimes see people charged with possessing a prohibited firearm if they have sawed off the barrel or stock of a rifle or if they tampered with a semi-automatic centrefire rifle to hold more than 5 rounds.

Firearms offences can be very serious in Canada and several have mandatory minimum jail sentences. However, there are some cases that have challenged the fairness of mandatory minimum jail sentences that I expect will work their way to the Supreme Court of Canada. Overall, firearms are only as dangerous as the hands they are in. If you are trained on the safety measures and have the appropriate licence, hunting and target shooting can be fantastic hobbies. If you do not have appropriate training or a licence, you need to make sure you do not become involved with firearms because the criminal consequences can be severe - and for good reason.

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit TomRees.ca.

First court date jitters, part two

Okay, so you know the basic rules about for attending a first court date, but what actually happens when you get there? Do you have to enter your plea of guilty or not guilty right away? Most of my clients have no clue about what actually happens at a first court date, but this blog should give you a lay of the land. 

The first thing the magistrate or the judge will ask you is whether or not you would like a lawyer. If you have hired a lawyer already, the lawyer should be attending the court date with you or sending a student to address the court. Sometimes, lawyers email the Crown attorney or the Crown attorney's assistant so that they know what the plan is for the first court date. If you haven't hired a lawyer already, the court will gladly give you time to do that. If you need to apply for legal aid, you can apply with legal aid directly or you can visit the lawyer who you want to assist you. Most lawyers can complete a legal aid application with you at their office. I know that I do this all the time.

The court will want to know if you want to proceed in either English or in French.  Pick the language you feel most comfortable with because ALL of the legal proceedings must be done in the language selected. If you require an interpreter, you can request one as well but the court wants to know if the proceedings should be in English or French.

The Crown attorney or the Crown attorney's assistant will likely have disclosure to provide to you. Usually, it is a stack of 20-30 pages of materials. Disclosure is all the evidence the Crown attorney intends to rely upon to prove the case against you. Disclosure can include police narratives, police notes, written or video statements from complainants and witnesses, DVD video surveillance, forensic evidence like fingerprints or DNA, medical reports, expert reports, and the list goes on. You typically only received one copy of the disclosure, so it is important you keep it safe because your lawyer will want to review it with you at your first meeting.

Finally, the charges will be remanded to a new court date. What that means is, you will return to court in a few weeks to provide some updates.  

If you would like to, you are able to enter a guilty plea and be sentenced on your first court date. However, it is recommended that you take the time to seek some legal advice before you make any decision.  I would never recommend entering a guilty plea on your first court date.

The court will typically give you 2 to 3 months to complete the legal aid application process or to properly retain a lawyer. At a certain point, the court may mark your matter quote "for plea." If that happens, then you must confirm a date for a guilty plea and sentencing or a date for a hearing, such as a trial or preliminary hearing.

I hope this has been helpful to describe how a first court appearance works in Manitoba when you've been charged with a criminal offence. 

About the author

Michael Dyck is a criminal lawyer at Tom Rees and Company. He represents clients from Winnipeg, Steinbach, and rural Manitoba. He has extensive experience helping people charged with criminal offences and focuses on building legal strategy with clients. To read more of his articles, please visit TomRees.ca.