Supreme Court of Canada re-approves use of dogs in searches without consent or warrant.

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.

Stan Tessmer

Becoming a corporation, the birth of a new entity.

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.

Paule Seeger BA LLB

We now offer conveyancing 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.

 Paule Seeger BA LLB

Who needs a will.

Who needs a will? Anyone with kids, with assets, who is over 19 …. Pretty much all of you out there!

Who has a will?  …… radio silence …

Even though I am a lawyer and practiced in the area of wills and estates, I didn’t have a will for the longest time (bad lawyer!!).  I thought about this often and realized that while I can chat about estate planning and the importance of appointing a guardian for your kids and pets, when it actually came to facing my own immortality …. I choked!

I do have a will now, but the process got me thinking about how many people speak to me and say “oh yes, I need a will”, but it always get put to the end of “the list”.  Which is ironic because “the list” is usually made up of items that increase our wealth, look after our children and generally look after all of the things we need to protect both in life and death.  So having a will should be at the top of that list!!

A couple of interesting points about wills for you to mull over:

1.       British Columbia does not recognize holograph wills (except in very, very specific cases – and if you are not on the front lines in Afghanistan, you don’t fit into the circumstances!) so writing on a piece of paper that “I leave all my worldly goods to Skip the dog” just doesn’t cut it in British Columbia.

2.       If you use beneficiary designations on life insurance / RRSPs and other investment products, they do not go through your estate at your death and you do not pay probate fees on the value of these items.

3.       A will is automatically revoked upon marriage.

4.       Divorce revokes only the parts of your will that provides a gift or benefit to your ex.  Now many of us are happy of this by the time the divorce comes through … but if there is no one who is to get those gifts / benefits in place of your ex … where do they go?

5.       In British Columbia we have a statute called the “Wills Variation Act”.  It is a very old statute and the bane of many, however it creates a lot of work for lawyers.  The basic premise is that if you do not provide for a person to whom you owe an obligation (read: children and spouses – including estranged but not divorced spouses), those people can bring an action in Supreme Court for a portion of your estate.  It’s a pain and it’s specific to British Columbia, but if you are considering leaving out a child or in the process of getting divorced – see a lawyer to discuss how to protect your estate.

6.       If you make a direct gift to a minor child in your will (as opposed to creating a trust for the minor), the Public Guardian and Trustee will step in and manage that trust until the child turns of age.  The Public Guardian and Trustee is a government agency that is overworked and understaffed – your minor child’s trust will be managed at a cost and will be invested in accordance with the very specific rules set down by the PGT.  There is no discretion, there is limited flexibility and someone will be dealing with the government every time they want to use some of that gift.

7.       Finally, if you leave money to a disabled adult or child directly (as opposed to setting up a disability trust), you could actually cause them to lose some or all of their disability income.

So now that you are thinking of this, don’t put it at the end of the list – call us and set up an appointment to get this process going!!

Paule Seeger BA LLB

Urgent message concerning legal grow-ops.

Tessmer Law currently has a Marijuana grow-op case where the police failed to contact Health Canada first to ascertain if the resident had a license to grow. We are aware of other instances of legal grows being destroyed by police. Residents have been subjected to arrest because the police did not contact Health Canada first to see if a license was in place.

Please contact us if you or someone you know has been subject to such violation of their rights. We can use this information to help win our case and strengthen the civil rights of all growers and help prevent such indignities / privacy violations in the future. You may also have a possible civil suit against the police.

Stan Tessmer

The Family Law Act.

As many of you are aware,  new family legislation has come into effect in British Columbia.  The Family Law Act came into force on March 18, 2013 and replaces our old Family Relations Act.  It is not a complete overhaul of everything but rather different levels of changes to various traditional issues to bring the legislation in line with our current reality.  As well, the Family Law Act has legislated aspects of our family practice that were not included in the Family Relations Act – such as definition of family debt (yes, until March 18, 2013, our family law legislation had NO definition for family debt!).

I am going to briefly touch on the changes, provide a quick rundown on the three major themes of this new legislation and then address some myths that have arisen from the new legislation.  I will get deeper into various issues in my future blogs – so if there is something you really want to hear about – speak up!

The FLA, as we affectionately call this new law, makes small changes to issues like child support and jurisdictional overlap of the Supreme court and Provincial Court.  The areas where there are big changes, even a brand new approach, are in the care of children and the division of property.  And, as stated above, the FLA has legislated concepts that we have used in our everyday practice, but weren’t included in the legislation until now – like dealing with family debt and the use of parenting co-ordinators.

There are three major themes arising from the FLA:

1.       There is an emphasis on and better support for out of court resolution.  Basically, all the parties involved in creating this act recognized what most of us already know – most family matters are best dealt with out of court.  When you are dealing with matters that are so very personal to you, the best result will often be one that you and your ex craft yourselves.  A judge knows very little about your life and is put in a position to make life changing decisions based on a limited time and limited information.

2.       There is also a change in how matters that are litigated are controlled. So if court is necessary – which it sometimes is – there are enhanced processes put in place that help the court to manage the process and the litigants.  While we have moved away from this idea of last minute applications served on the other side on a Friday night for court on Monday, the FLA gives the court even more discretion in how to handle litigants once they decide to use the court processes.

3.       Finally, and I – like many of my colleagues – really like this one, when there is a dispute involving children, the FLA has moved the focus from the rights and priorities of the parties onto the rights and priorities of the children.  This new legislation takes a very child centered approach, and hopefully will help parents to keep in the forefront of their minds that, while they may have every right to divorce each other, they have no right to use the children as weapons in the battle.

Since the FLA has come into effect, I have heard some “myths” about the legislation, some a number of times.  I’m not sure where they are coming from … but they are not true … here are three common ones:

1.       The FLA shortens the amount of time a party must live together from 2 years to 3 months in order to be considered “common law”.

The definition of a spouse is found in section 3 of the FLA and includes a person that is married to another person or who has lived with another person in a marriage like relationship continuously for a period of at least 2 years.  So still the two year test in order to be considered common law.

There is one exception to this definition and that is when a person lives with another person and has a child with that person.  They don’t have to meet the 2 year requirement.  However this definition of spouse is limited specifically to the sections dealing with children and support.

2.       You have to wait for 2 years after the FLA comes into force (so March 18, 2015) in order to have the sections on property division apply.

The FLA came into effect as of March 18, 2013.  After March 18, 2013 all aspects of the FLA became our law in British Columbia.  Any split taking place after March 18, 2013 is dealt with under the FLA.

For court actions that commenced prior to March 18, 2013 and were still ongoing – there were transition provisions to deal with this, but basically, everything other than property division became subject to the FLA as of March 18, 2013.  The only issue in these cases that would be dealt with under the FRA was property division.

3.       You have to be married to have the rights under the FLA.

Not true. The definition of spouse under the FLA has been expanded to include common law couples of 2 years for all purposes under the FLA and common law couples of less than 2 years if they have had a child together for other purposes such as child support and care of the child.

Hopefully that provides some food for thought.  If there are other myths about the FLA that you have heard about and want debunked, let us know and we will see what we can do.

Paule Seeger BA LLB

A breakdown of why we cost what we do & how to save money.

Now what I am hoping to do is to provide some very basic information about what to expect when you get your first legal bill (woo hoo!).  Please remember that this is just general information and it comes from my personal experience – I don’t profess to understand the inner workings of all legal minds.

In my previous post, I referred to a retainer agreement.  This is the agreement between you and your lawyer detailing your working relationship.  It should explain what you are hiring the lawyer to do, it should explain how you are going to pay the lawyer, it should explain when your lawyer can decide to no longer work for you and it should also explain how you can fire your lawyer.  Remember, we work for you – so you are able to cease using us.  As I’ve previously said though, an honest conversation about your concerns is first recommended.

Most retainer agreements will tell you when you can expect your first bill.  Usually it is at the end of the first month that they have done work for you.  What you should find in your bill is a detailed account of work done on your file, how many hours were spent, the total cost of legal fees, the costs of disbursements, the taxes on fees and taxable disbursements and any amount outstanding.

Generally at the beginning of any legal relationship, the lawyer will ask that you pay a retainer.  This is basically a deposit for their services.  There is a more legal reason based in the law of contracts, but all you need to remember is that the retainer means you have the lawyer working for you from here on out.  A retainer is a sum of money that is put into our trust account and held there until we bill you for our services.  So if you write us a cheque, the funds will come out of your bank but we won’t have access to those funds until we do work for you and then issue a bill for it.  Trust accounts are regulated by the Law Society and there are some very specific rules about dealing with trust funds.

Most of the time, your retainer funds will be used to pay for the bill you have just been issued, so it is likely that you won’t have to go in and pay the bill directly.  Often, when the retainer gets to below a certain point, the lawyer will ask that you top the funds up.  This saves everyone running around at the last minute (for example your lawyer has to head into court for you) trying to make sure that your lawyer is paid.  Many firms, including ours, have a policy that if we are going into court, mediation or an examination for discovery, the fees associated with those applications must be in trust before we attend.

I think that many issues with legal bills come down to confusion as to what is billable and what is not.

The general rule of thumb is that  lawyers are very expensive friends!!  Remember that we charge for our time.  That includes time spent emailing, telephoning, writing letters and reviewing files.  We are professionals who have spent a lot of years in school to qualify to do what we do, the best use of our time is to deal with your legal issues, not the other things.  So, it is not cost effective to call your family lawyer to discuss how much you don’t like your ex, or to hand your lawyer a completely disorganized box of paperwork.

From my experience, if I get 100 emails from the same client in the space of two weeks – even if they are just one or two lines each –  I will be billing for the time spent on these.  I also remind my clients of my role when we begin to have that conversation best suited for drinks with your friends.  Remember, the cost of a couple of pints of beer / a bottle of wine to have your friends listen to your woes is significantly less than an hour or two of my time.

Here are a few tips to keep your costs down and make the best use of your legal professional:

1.       Keep your focus on your legal issues and try and keep your communications as                 streamlined as possible.

2.       When you give your lawyer lots of documents, have them organized.

3.       Type up a chronology of events to give to your lawyer for ease of reference.

4.       Speak with the lawyer’s assistant if it is a general administrative issue as opposed              to  a legal issue.  Often lawyer’s assistants know more about these issues anyway.

5.       Talk to your friends or counselors about “heart stuff”.

6.       If you have a number of things to discuss with your lawyer, it may be more efficient             to make an appointment, rather than phone and email a number of times.

7.       Make and keep a list of things that you would like to discuss with your lawyer                       during a meeting.  Make sure to deal with all of the points.

8.       If you are not scheduled to have a meeting, make a list and then send one email                 with all of your questions or points.

Basically, use your common sense.  As your relationship with your lawyer develops, you will find that each of us bills differently.  If you ever have questions about your bill – then ask your lawyer.  We need to be able to explain why we bill the way we do!

Paule Seeger B.A LLB