On the chopping block & for good reason…
This is the newest weapon in the British Columbia government’s arsenal to take your assets. Even if you don’t get charged with a crime, the police may seize your money, your valuables, and even your house.
The Globe & Mail recently published a story explaining the ins and outs.
We have experience in dealing with these cases, when illegal searches lead to seizures remember you have rights!!
Lately you’ve probably heard a lot in the news about the Civil Forfeiture Act and how the Province is now regularly applying to seize the houses of persons found growing marijuana illegally. While the seizure of someone’s property would seem to be punitive, technically the Civil Forfeiture regime is not considered to be an area of criminal law and therefore is different and independent from a prosecution by the Courts. What that means is that even if you aren’t actually charged, or if charges are dropped, the Province can still apply to take your house under the Civil Forfeiture Act. Seems sort of unfair, right? Well the Courts don’t think so and as long as the law is there, it will continue to be used.
We represent a number of clients who are subject to this regime and whom we’ve been fighting for to help them keep their houses. Last week we had a case where the Director of Civil Forfeiture was attempting to seize our client’s house despite the fact that he had already had a trial on the merits in the criminal sphere and was acquitted by the Judge after He found a large number of Charter infringements and ruled all of the drug evidence was inadmissible. No surprise – the police were not happy about the acquittal so they referred the matter for Civil Forfeiture. We argued that it would be clearly contrary to the interests of justice to allow the Director to use the drugs for a Civil trial after another Judge had already ruled the evidence inadmissible for the criminal sphere. Before getting an official ruling from the Judge on the matter, the Director decided to abandon its case.
If you are dealing with similar issues and your house is subject to seizure by the Director of Civil Forfeiture, give us a call.
With Christmas just around the corner; the malls are bustling with shoppers and Christmas decorations are going up everywhere. If you need a little jump start to get you into the holiday spirit here are some great events 🙂
From kids and family fun to theatre events or taking advantage of our Kelowna wine heritage check out the events happening in and around Kelowna this season.
Theatre:
November 21st to December 1st – Theatre Kelowna Presents Cinderella and the Silver Twig:
“Theatre Kelowna Society’s ‘Cinderella and the Silver Twig’ kicks off the Festive Season with a Traditional Pantomime. Cinderella is still trying to get to the Royal Ball. It seems she is destined to miss the dance once again due to her never-ending list of chores. If only she could meet her prince, fall in love and live happily ever after. She may stand a chance of this ‘dream’ if only a kind, slightly confused Twig peddler can make wishes come true.”
December 4th to December 22nd- Shrek the musical:
“Join Shrek and his loyal steed Donkey, as they set off on a quest to rescue the beautiful (if slightly temperamental) Princess Fiona. Add the diminutive Lord Farquaad, a gang of fairytale misfits and a biscuit with attitude, and you’ve got the must see musical comedy – SHREK THE MUSICAL!”
December 6th and 7th- The Nutcracker Ballet
“There is no more loved classical ballet than the perennial favourite The Nutcracker. Filled with fantasy and magic, it has captivated generations of families around the world making it a seasonal tradition. Join Clara as she delights in the Christmas gift of an enchanted Nutcracker that takes her on a magical journey from the comfort of her home to The Land of Snow and to The Land of Sweets”
December 17th to December 21st- A Christmas Carol
“Celebrate the season with us as we travel with Scrooge and Marley into the past, present and future to discover the true meaning of love, family and Christmas. This Dicken’s classic will delight young and old and will be performed in the historic Laurel Packinghouse.”
Family Events & Craft Fairs:
November 30th- A touch of Christmas fair
“One of the largest Fairs of the Season, this charity fundraiser is hosted by Hands in Service, benefiting mobility and health challenged community members. Your unique one-stop Christmas experience featuring 60+ crafters and vendors, silent auction, gift baskets, live entertainment, door prizes, and more. Partnering with Kelowna Community Food Bank.”
December 7th- 11am to 7pm- 25th Annual Downtown Kelowna Light Up!
“We’re excited. Like it’s-gonna-be-so-super-sweet excited. Santa is comin’ to town for the 25th Annual Downtown Kelowna Light Up! on Saturday, December 7, 2013 and we want to celebrate. Decorate a cookie to devour. Street hockey. Listen to live tunes, and then make some of your own at the Musical Petting Zoo.”
December 7th at Big White- KGH Foundation Big White Sweater Ball
“Saturday, December 7th Happy Valley Day Lodge Reception: 6:30pm Dinner: 7:30pm Pull those vintage sweaters out of the closet and enjoy an evening of retro fun while celebrating Big White’s 50th Anniversary. Come down to the Happy Valley Day Lodge to take in some deluxe food, themed drinks and dance the night away with Easy Fix to the greatest hits from the last 50 years.”
Wine Tours:
November 22nd to December 24th- Winter Wonderland Ice Wine Tour
“Join Distinctly Kelowna Tours on an informative and exciting winter tour featuring late harvest and ice wines from four unique wineries on the Westside Wine Trail.”
November 1st to December 22nd- Christmas Magical Wine Tour
“Come and enjoy the holiday fun! Visit 3 Christmas spirited wineries and taste award winning Okanagan wines and take care of your holiday shopping at the same. Enjoy listening to the sound of Christmas cheers! Please bring a food item for the food bank. A Christmas appetizer and a holiday drink at Cabana Bar and Grille makes this tour memorable”
We live in such a beautiful city and to really appreciate all that Kelowna and the Okanagan have to offer, get out in your community and take advantage of all the great activities that are available. For a full list and calendar of events vist theTourism Kelowna website for more information.
Cheers to the season!
Tessmer Law does not traditionally support political parties but rather supports particular policies that better humanity. We support the decriminalization of marihuana. It makes no sense that alcohol and tobacco are legal but you can get a criminal record for possession of marijuana (if you don’t have license for medical marihuana). More violent and dangerous crime is related to alcohol than anything else and the health costs associated with alcohol and tobacco are well known. Further, the law against pot is bad for democracy and the rule of law. Bad laws invite disrespect for the law and create an opportunity for organized and unorganized criminal groups to profit. So Tessmer Law supports Justin Trudeau in his efforts to decriminalize cannabis possession. Its time we voted on this issue!
This morning the Federal Crown prosecutor dropped marijuana production & possession for the purpose of trafficking charges against a client of Tessmer Law.
While the crown doesn’t have to specify the precise reason charges are dropped, we believe the decision was made because the police violated several constitutional rights in obtaining the evidence including subjecting the defendant to a strip search……
Note: A strip search is only justified if the the police if the police have reasonable grounds to believe a detainee has hidden evidence or a weapon under their clothes.
* If you have been subjected to an indignity you should get in touch with us, we may be able to use this to help you in your case *
A few years ago, a lovely young man contacted me in a bit of a bind. He was engaged to the girl of his dreams and planning a big wedding. Only problem was that he had already gotten married in Vegas to a friend of his a few years prior!
He called me to find out if the Vegas marriage was valid – since they were drunk and never lived together afterwards – because he really didn’t want to have to break the news to his fiancé that he was already “kinda” married.
After asking him a few questions and establishing that he did in fact get legally married in Vegas, it became clear that the hard reality was that his marriage to his friend in Vegas was considered a valid marriage in Canada. I wish I could have told the young man something different, but – whether or not it is Elvis, the captain of a ship, or a person who was ordained over the internet – if they are qualified to perform marriages in the location you are getting married in …. You. Are. Married.
Some countries require the marriage to be registered in their jurisdiction in order for the marriage to be recognized in their jurisdiction. Canada is not one of these jurisdictions. A marriage is recognized as long as you meet the requirements of the jurisdiction in which you got married … and unfortunately dumb and drunk are not bars to marriage in Vegas … or so I’ve been told.
Because he had married his friend but never lived with her (or consummated the marriage according to him) our unfortunate friend would have been able to have the marriage annulled if he had made an application within a small window of time. However it had been well over two years by the time he contacted us, so annulment was not an option.
In these situations, we can complete a quick divorce for you, provided you have a marriage certificate and you can still locate your “spouse”. These types of divorces are usually uncontested and called “desk order divorces” because everything is done by filing paperwork as opposed to appearing in court.
If you have a divorce where there are no outstanding issues other than getting a divorce, you can obtain one of these divorces. The process takes about 3 – 6 months and we usually charge a flat fee for them based on whether or not there are children of the relationship. If you find yourself in a situation like the one I mentioned above, or just want to finalize your divorce and there are no other issues to deal with – call us to discuss how we can help you obtain a desk order divorce.
Oh … and one more thing … after you get one of these divorces … you are really divorced too. So if you plan on remarrying – you need to disclose this divorce on your next application for a marriage licence.
DRUG SNIFFER DOG SEARCHES approved of again by the Supreme Court of Canada. In two decisions released on Thursday, the Court has allowed the use of drug dogs to conduct searches in the absence of consent or search warrant.
A tale of two cases…
In Regina v Chehil, the Court allowed drug dogs in restricted areas of the Halifax airport to do a sniff search on a traveller’s bags, finding 3 kilos of cocaine in the subsequent search, after the dog indicated the smell of narcotics.
In Regina v McKenzie the Court authorized the use of the drug dog, after a traffic detention between Calgary and Regina, who located several pounds of marihuana.
In both cases the Court authorized both the sniff search, and the subsequent arrest based on the positive indication by the drug dog.
The Supreme Court has authorized the use of the sniffer dogs, in cases where there is a lesser expectation of privacy, ie. airports, automobiles, if a police officer has a ‘reasonable suspicion’ of a criminal offense – in these cases, drug possession. To arrest someone there must be reasonable and probable grounds to believe they have committed a crime.
The Court reiterated that the test for a reasonable suspicion is based on a constellation of objectively verifiable facts. In particular, the police only need facts supporting a ‘possibility’ of a crime. Would be drug traffickers should know that one way tickets on Westjet, paid for last minute with cash, can amount to, and did amount to reasonable grounds for a drug sniff search in the case of CHEHIL. Further, even though the dog indicated the presence of drugs in another piece of luggage, (a cooler) where none was found, the Court still found that the subsequent arrest of the defendant was based on ‘reasonable and probable grounds’, and was therefore lawful.
In McKenzie, the sniff search was based on the fact that the defendant had quickly slowed down his car when being monitored for speeding, and parked the car on the side of the road before being pulled over by the police; he exhibited extreme nervousness, had pink eyes, and jerky hand movements, and changed his story about his travel between Calgary and Regina. Surprisingly, the officer testified that Calgary was a source of drugs and Regina a destination for same. The defendant had been acquitted because the trial judge found a lack of reasonable suspicion for the drug dog search, but the Supreme Court found in split decision that he did not give proper weight to the officer’s training and experience, which led to the officer’s opinion.
In short, if an officer can justify his opinion based on his experience and training, the Courts are bound to consider that in determining whether there is a ‘reasonable suspicion’ to justify the dog sniff search.
Both cases left upon the possibility that if there had been better and more probing cross – examination, of the officer’s conclusions, and the dogs training, the results may have been different.
I always get excited when a person comes in to incorporate a company. It’s the start of a very exciting period of a business’ life and one that it is fun to be a part of. There are so many aspects to changing from doing business by yourself (a sole proprietor) to becoming a corporation.
When a person or a business decides to incorporate another entity is created. I describe the corporation to my clients as a totally different “being”, and like any addition there are extra roles and responsibilities associated with incorporation.
The basic steps of incorporation are done by filing a number of documents with the Registrar of Companies in Victoria. In our age of technology a lot of that can be done online, so the actual incorporation can take place within a day. However there are some other things that need to be in place before completing the incorporation:
1. Most people don’t know this, but you cannot automatically use whatever name you want for your company and incorporate. The default name in a company incorporation is the incorporation number of the company followed by the words “B.C. Ltd”. If you have a name for the company that you are heart set on using, you need to get approval to use that name. This requires obtaining a name approval from the registry which can take a couple of days. This needs to be done before you incorporate. It’s a simple process that we can complete for you.
2. You also need to think about the share structure (who will own the company and in what percentage) and the directors of the company (who will be responsible for the company). A company in British Columbia must have outstanding shares and at least one director. It is no longer required that a company have officers, like a secretary.
3. Once you have decided on all of the above, you need to think about the rules that are going to govern the company (these are called the company’s Articles). The registrar provides a standard form articles (called Table A articles) however if you want any specific rules attached to the shares, you need to come up with a specific set of Articles. A company’s articles consist of 20 plus pages and deal with all sorts of rules that govern how the company will run. Generally, if we are incorporating a company, we also create their articles for them.
4. Once all of that is done, you incorporate with the Registrar.
Now you have a company! Yay! However you are only halfway there at this point …
1. Since the company is an entity in itself – it needs to approve all of the things that we have just discussed and put them into place. This requires a series of resolutions by the shareholders and the directors.
2. Once we have a nice big pile of paperwork, those documents go into the company minute book – which is basically a binder of all of the legal paperwork that will be generated by the Company now that it is in existence.
3. Also, your bank will want a pile of documents related to the incorporation in order to set up your business account – we can generate that package for you.
Any company in British Columbia is required to comply with the Business Corporations Act (the “BCA”). There are some general “housekeeping” requirements in the BCA that a company needs to meet and that it is helpful to have a lawyer for.
1. The first is that a company has to have a Registered and Records Office. This is a place that is open during business hours on Monday to Friday where any member of the public can go and look at parts of the company minute book. Now, this doesn’t usually happen except when a business is being bought or CRA is doing an audit – however it is a requirement of the CBA. Since most business owners are busy running their business, it is beneficial to have a third party make sure that they have the minute books in case someone wants to look at them. We act as the Registered and Records office for most of our clients, because we have already created the minute book, we are always open during regular business hours and we also know what documents should be made available to what people.
2. As well, you need to file documents each year with the Registrar to confirm that the business is still open. We contact our clients when these Annual Reports are due and file them for the clients.
3. Finally, you will have other things come up during the year, like taxes and reporting dividends etc. We can often take instructions from your accountants on preparing resolutions to “paper” the financial decisions that the business has made.
At Tessmer Law Offices, we have experience incorporating companies and act as registered and records offices for a number of companies. So feel free to contact us about those services.
We are open for business to do conveyancing! We have been offering it as a value added service to our clients, however we are able to take on some other transfers on a first come, first served basis.
In light of our new area of business, I thought I would make a quick post on something that is so very simple, but if not done – can cause some very big problems! The number of stratas are growing in Kelowna and we are finding lots of conveyances of strata property. When we do a conveyance of strata property, there is a few additional steps required, the main one is obtaining a Form B signed by the strata management. This is the form that states if there are any strata fees in arrears / parking stalls / big budget items planned for etc.
Now, while we are good, we are not mind readers – so unless the seller discloses the strata management in their property disclosure statement, the only way we can find out who to contact to complete the Form B is by doing a search of the B.C. Land Titles. If a strata management isn’t registered there … well, we have to take the seller’s word that there is no official management company and take their word on if strata fees are owing or not. So, if a seller does not disclose outstanding fees, the management will have to try and get that money back from the seller.
If you are a strata owner and part of the strata board, please make sure that the management company is registered with B.C. Land Titles. There is a nominal cost, but in the long run, it is way cheaper than paying lawyers if things go sideways.
As always feel free to contact us with any questions you may have.
tessmerlaw.wordpress.com 