legally speaking - Justice Institute of British Columbia

What Did the Accused’s Lawyer Tell Him?
Do you ever wonder what a lawyer says to a client? During the
Ashmore case the accused called his lawyer to testify. The lawyer
said he frames the legal advice he gives in a positive manner so as
to inform those under arrest what they should do. Here is what
he said he told the accused:
• That he had the right to remain silent. (This was repeated
two or three times.);
• That he should not say anything to the police beyond
identifying himself;
• That the police were entitled to ask him all the questions
they want, and would do so, but that he should repeatedly
say he does not want to talk to them;
• That he should assert his right to silence by using
expressions such as: “I don’t want to talk to you”; “I have
nothing to say to you”; and “My lawyer told me not to talk to
you”. (This was repeated two or three times.);
• That he should not listen to the police as they will
exaggerate evidence, misplay evidence, lie about what
evidence they have, and try to trick him;
• That the police might put someone in his cell and “bug” his
conversations;
• That he should act on the basis that the police are listening
to all his conversations, except those with a lawyer;
• That he should not provide the police with, or consent to
the warrantless taking of, any bodily samples, such as hair,
spit, blood, tissue, or anything from which a DNA sample
could be obtained;
• That he should be careful of any waste, such as blowing his
nose into a tissue. Waste should either go into the toilet or
be cared for;
• That in the event that the police obtain a warrant for a
bodily sample, he should say “I am not consenting but I will
comply with the warrant”;
• That the police were entitled to take his photograph but that
he should not participate in any line-ups or take any lie
detector (polygraph) tests;
• That the police might ask him to participate in a test as a
ruse to get him to talk;
• That if he wanted to apply for legal aid, then he should do so
at the earliest opportunity;
• That the legal aid office was closed on the weekend but a
legal aid lawyer would be available to him at the courthouse;
and
• That in a murder case the police have 24 hours to take an
accused before a judge or justice of the peace, but there is
no chance of being released before going to court. He should
speak to a legal aid lawyer when he gets to court to start the
process of seeking release.
R. v. Ashmore, 2011 BCCA 18
Volume 11 Issue 1 - January/February 2011
PAGE 26
STARTING SENTENCE FOR
WHOLESALE COCAINE
TRAFFICKING IS 4 1/2 YEARS
R. v. Nishikawa, 2011 ABCA 39
The accused sold 0.5 grams of
cocaine to an undercover officer for
$80 then, after he was targeted for
investigation police stopped his
vehicle and found 10 ounces of
cocaine with an estimated street value of $47,000.
He pled guilty in Alberta Provincial Court. On
sentencing the Crown sought a four-year prison term
while the defence proposed a conditional sentence.
The judge imposed a conditional sentence of 10
months for trafficking and 2 years less a day for
possession for the purpose of trafficking, to be
served concurrently.
The Crown then successfully appealed the sentence
submitting it was demonstrably unfit. The Alberta
Court of Appeal has set starting points for trafficking
in cocaine, whether at the commercial or wholesale
level, which can be adjusted for the offence and the
offender. The sentence for commercial trafficking in
cocaine at something more than a minimal scale
starts at three (3) years while the starting point at the
wholesale trafficking level is four and a half (4.5)
years. In this case the possession offence was for
trafficking at a wholesale level. Although at the low
end of the range, the Court of Appeal imposed a
sentence of 30 months imprisonment after
considering the accused’s guilty plea, his favourable
pre-sentence report, his family history, and his
positive efforts in overcoming his addiction.
Complete case available at www.albertacourts.ab.ca
“Cocaine is a particularly
insidious drug, one that wreaks
havoc not only upon all who are
addicted to it and those near
them, but also upon society at
large.”
R. v. Nishikawa, 2011 ABCA 39