FREQUENTLY ASKED QUESTIONS
A. IMPAIRED DRIVING LAW:
(3) “What are the implications for me of being charged with “impaired driving”, “driving over 80 milligrams”, “failure or refusal to provide a breath sample” or other motor-vehicle related Criminal Code offence?
B. PERSONAL INJURY / ICBC CASES:
(10) How do I pay the lawyer to help me with my injury claim?
A. IMPAIRED DRIVING LAW:
In the majority of cases a person/client has been stopped by the police, taken to the police station (usually in hand-cuffs), been given the opportunity to call a lawyer at the station (usually duty counsel) and then the client has either provided breath samples or refused to do same. In most (95%) of the cases, after the provision of breath samples the police release the client after serving him/her with a variety of documents (which may include the following:
(a) a “Promise to Appear” or “Appearance Notice” (which is simply a document that compels your appearance to court (or to the police station) at a later date);
(b) a “24 hour suspension” (which is a document that restricts/prevents you from driving for a period of 24 hours from the time/date it was served upon you);
(c) a “Notice of Driving Prohibition” (which is a document that tells you that the Provincial body responsible for issuing driver’s licenses or the Superintendent of Motor Vehicles intends to prohibit you from driving a motor vehicle within in B.C. for 90 days commencing 21 days after the service upon you of this document);
(d) a “Certificate of Qualified Technician” which on the bottom part reads “Notice of Intention to Produce” which is a document that tells you what the actual blood alcohol readings were when you provided breath samples at the police station; and
(e) if you are especially unlucky then a “Notice to Seek Greater Punishment” which means that the Police will be asking the Crown Counsel to seek a stiffer penalty that the minimum penalty if you are convicted of the charge.
If after your dealings with the police you have been provided any of the above documents then your driving privileges will be restricted and you may be subject to other criminal sanctions (ie. a criminal record, fines, jail and driving prohibitions) and you should immediately seek legal advice from us or other qualified lawyers. Depending upon the documents that you have been served by the police the jeopardy you face is different and a lawyer can explain this to you. If you wish to know more about dealing with the issue of driving prohibitions and the court process in particular I encourage you to scroll down to question #5 and #7 below which should answer some of your general questions about appealing a 90 day driving prohibition and the criminal trial process in general.
If you have been involved in an accident as a driver and there has been some degree of “alcohol involvement” or “drug involvement” then different and additional steps may be involved. In these cases despite whether you are going to be charged criminally with driving-related offences you may still need to deal with ICBC or other insurers about the fall-out of the accident. In these cases you should again seek immediate legal advice from us or another qualified lawyer BEFORE you provide any statements to any parties, including the police, ICBC representatives, other parties involved in the accident or anyone (including potential witnesses for that matter). You need know that in order to get your car fixed or seek compensation for personal injuries there is a duty to report the accident to the insurer (which, in most cases, is ICBC) and that that duty to report is time-sensitive (in that it must be reported by law to ICBC shortly after the mva). You need to know how to best report that accident. You need to know what information is required from you by ICBC or another insurer or police and what other information you are NOT REQUIRED to provide to ICBC, other insurers or the police. We can explain all of this to you when you contact us.
You should be aware that if you have been involved in an “alcohol related accident” even though the police/Crown may not charge you criminally for impaired driving the insurer (ie. ICBC) can and will take a stiffer view of the situation and may right from the start have a “hidden agenda” of attempting to establish that either you or the owner of the vehicle involved in the accident has/have breached your insurance contract with them as an insured so that they (as the insurance company) can refuse you insurance coverage or indemnities for third party damage as a result. This may mean that ICBC will take some or all of the following steps:
(a) NOT pay to fix the damage to your car or the car you were driving;
(b) pay fix the damage to some of all of the damaged cars (or other property, like hydro poles, damaged city culverts, etc.) but seek recovery of that cost from you;
(c) if people are injured then the insurance company may pay out the injury claims but seek recovery for monies paid out by them from you or the owner of the car that you were driving; and
(d) refuse to pay for your medical treatment or honour your own personal injury case that resulted from an innocent accident.
You need to know that every situation is different and that different rules and considerations apply to each unique situation and that we can help you though this. You should therefore call us BEFORE you say something to either the police or ICBC that you will later regret.
(3) “What are the implications for me of being charged with “impaired driving”, “driving over 80 milligrams”, “failure or refusal to provide a breath sample” or other motor-vehicle related Criminal Code offence?
If you are CONVICTED of impaired driving, driving while over 80 milligrams in 100 millilitres of blood or refusal to provide a breath sample, which are criminal offences under the CRIMINAL CODE OF CANADA, then on a FIRST OFFENCE basis you face a MINIMUM penalty at law which is: $600 fine, a victim fine surcharge (regularly 15% of the $600 fine), one year long DRIVING PROHIBITION for anywhere in Canada, and of course, a CRIMINAL RECORD. You should be aware that a second or subsequent conviction for a criminal code driving-related offence (ie. impaired driving, dangerous driving, etc.) brings stiffer sentences including minimum jail/custodial sentences. A refusal charge carries the same penalties at law as an impaired driving charge.
It is important to note that just because you are being charged with impaired driving it does not mean that you will be convicted of a Criminal Code impaired driving offence. Sometimes criminal charges though requested by the police are not proceeded with by the charging body, or the Crown Counsel’s office. Sometimes other (non-criminal) charges are substituted for criminal charges after negotiations between the parties. This is sometimes done as early as your first court appearance or as late as part-way through your criminal trial but before the judge has rendered as verdict. If the Crown can be convinced, at any stage of your matter, to proceed with the matter under the MOTOR VEHICLE ACT (which is a BC regulatory act) and not under the CRIMINAL CODE (which is a Canada-wide federal statute) then the minimum sanctions outlined above DO NOT APPLY. If the Crown can be convinced to proceed in a non-criminal manner then the Crown, defence lawyer and Court can come up with a sentence which is less than the minimum penalty above and regularly involve a smaller fine and/or no driving prohibition or a lesser driving prohibition. We call this plea-bargaining. The charges regularly agreed to as a “lesser included” charge are charges commonly referred to as “driving without due care and attention” under the Motor Vehicle Act (or section 144(1)(a) of the Motor Vehicle Act. You should be aware that though plea bargaining is possible in every case it does not regularly happen unless the defence lawyer can show the Crown that their case has some weaknesses or holes in it that would make it unwise or unfair to proceed in a criminal fashion.
You should be aware that if you are convicted of a criminal code motor-vehicle related offence (ie. impaired, refusal, driving over 80 milligrams) and if the minimum sentencing provisions apply (ie. criminal conviction, fine, driving prohibition) then as a result you will have NO insurance coverages available to you through ICBC or other insurers. In effect any criminal conviction for these types of offences is almost always equivalent to a breach of insurance and ergo a loss of insurance coverages and/or losses of indemnities that might otherwise (absent a conviction) be available to you or others. (To check on the insurance issues presented by a conviction you should review the provisions of the Insurance (Motor Vehicle) Act)
This is probably the most common question I get asked in the morning after phone call. There is no simple way to explain this to the layman. Regularly in an impaired driving investigation the police will immediately serve a client at least two different driving prohibitions (ie. a “24 hour prohibition” along with a “Notice to Seek a Driving Prohibition under section 94.6 of the Motor Vehicle Act”). Later, if convicted by the courts of impaired driving or if you plead guilty to impaired driving (under the Criminal Code) then the Court (and the Superintendent of Motor Vehicles) may impose the minimum or additional driving prohibition of one year or more. Thus one is faced with at least THREE driving prohibitions resulting from the police investigation:
(a) a 24 hour driving prohibition;
(b) a 90 day Administrative driving prohibition; and
(c) if convicted (at a later date) a ONE YEAR driving prohibition.
Why so many prohibitions? The short answer to this query is that there are TWO separate government bodies involved in monitoring your driving privileges and each has their own powers granted to them, and each body acts separately and apart from one another (although at times they do communicate with one another). The two competing bodies are: (1) the Provincial body that governs driver’s licensing and driver’s safety on the highways within the Province of BC which is called the Office of the Superintendent of Motor Vehicles (or “SMV” for short); and (2) the Criminal Justice System, including the Ministry of Attorney General along with the B.C. Courts. (or the “Courts”).
The SMV is involved in and concerned with driver’s safety on highways within the Province of British Columbia. When we apply for our driver’s license we complete our driving tests and apply for a driver’s permit from the SMV. The SMV then, amongst other things, monitors how many violation tickets we receive from the police and thus constantly engages in risk safety assessment on behalf of the public, including ICBC. If the SMV believes that a licensed driver’s road record (ie. driver’s safety record) requires corrective measures then they may require any driver to undergo additional training or be prohibited from driving for a period in order to encourage proper road safety habits.
Part of road safety within the Province of B.C. obviously involves keeping drunk drivers off the road as they are a safety risk to themselves and others using the roadways within the Province. Under sections 215 and 94.1 through 94.6 of the Motor Vehicle Act (www. .com) the SMV has the power and obligation to serve the public’s road safety needs by imposing driving prohibitions through their agents, the police.
Thus the first driving prohibition is the 24 HOUR PROHIBITION or a “one day” driving prohibition. This is served by the police on a person/client so that after they process a drunk driver at the police station, that person/client does not return to his/her car in their drunken state and continue to drive. This prohibition makes sense if you think about it. The police regularly release impaired drivers from the police station after the provision of samples. Those persons sometimes feel wrongly accused and will, in effect, convince themselves to go back to their cars and continue their drive homeward (or wherever). These people are considered to be a risk and thus the SMV have the police prohibit them for a short period, ie. 24 hours, so that they can in effect “sober up”. (It is not only those who are “arrested and processed as an impaired driver” who can be subject to this type of prohibition – in fact 24 hours prohibitions can be given by the police to any driver who is merely suspected of being drunk and without further investigation being done by the police).
The second driving prohibition is what is commonly referred to as the 90 DAY ADMINISTRATIVE DRIVING PROHIBITION. This type of prohibition came into effect in the mid to late 1990s as a tightened response by the Provincial Government of the day to deal with both the death toll and the heightened ICBC rates being caused by drunk drivers on the roads in B.C.. The government in Ontario had passed a similar law/legislation in that Province that was later challenged in the courts and abandoned by the legislators. In effect this prohibition was added by our B.C. government as a weapon in the SMV’s arsenal to fight drunk drivers. Back in the mid-1990s it was not uncommon for an impaired driving case to take 10 to 13 months get to trial This 90 day prohibition was thus meant to give drunk drivers a timely and immediate penalty resulting from their actions rather than having them wait for any penalties that might be meted out by the criminal courts. The legislative regime is set out in section 94.1 to 94.6 of the Motor Vehicle Act (www. .com). In effect what happens is that, upon ARREST (not conviction) of someone suspected of impaired driving (or refusing to provide a breath/blood sample) the police, as agents for the SMV, serve the “Notice of Driving Prohibition under section 94.6 of the Motor Vehicle Act” on that person. That paper notice serves as the suspect’s driver’s license for 21 days (which following the service of a 24 hour prohibition has obviously been already limited for at least 24 hours). Any person who is served with a Notice of Driving Prohibition under section 94.6 of the Motor Vehicle Act must immediately (within 7 days of being served the document) take steps to appeal this Notice or else they will automatically and without notice be prohibited from driving a vehicle on any road, street or highway WITHIN the Province of British Columbia for a period of 90 days AFTER the expiry of the 21 day waiting period (or 21 days after the service of the document). Even if a person appeals this prohibition there is, in my experience, usually little likelihood of success in the appeal and that person will more likely than not be subject to the 90 day driving prohibition. Thus, merely by appealing that prohibition, it does not mean that you will not have to serve it. But you must appeal to the 90 day prohibition within the required time in order to at least have any chance of re-gaining your privilege to drive during that 90 day period.
The third prohibition is one that is meted out by the courts upon conviction or plea to a criminal charge or a PROHIBITION FROM DRIVING PURSUANT TO SECTION 259 OF THE CRIMINAL CODE. This is a prohibition that the Court system imposes upon a person convicted of a Criminal Code impaired driving offence pursuant to the court’s upholding the criminal law. The criminal law is concerned with the actions and omissions of all Canadians and the correcting of anti-social or anti-societal behaviour within Canada. One of the things that the legislature in Ottawa says is illegal is “impaired driving” or the “refusal to provide breath samples” upon the reasonable request of a peace officer. The Criminal Code is legislation that is passed in Ottawa and not in BC and as such it is the law that all Canadians equally must face together. The legislators in Ottawa have passed very strict minimum penalties for this criminal offence including the imposition of a MINIMUM penalty for those convicted in a criminal court of impaired driving or refusal. That penalty includes a ONE YEAR minimum driving prohibition if a person is convicted of a driving-related Criminal Code offence. Unlike the first two driving prohibitions noted above, this third prohibition ONLY occurs if/when a person is either convicted of the criminal offence by the courts or if they plead guilty to driving-related Criminal Code offence (including impaired driving, driving over 80 milligrams of alcohol in 100 millilitres of blood, dangerous driving, hit and run, etc.). If a person is convicted of impaired driving then the Courts have an obligation to impose AT LEAST the minimum penalty and if the Court does not impose the minimum penalty then in effect the Court’s themselves would be breaking the law. Thus this third penalty arises out of the Court’s obligation to follow the law that has been set down by the legislators in Ottawa.
One thing that you should be especially aware of in relation to ALL THREE DRIVING PROHIBITIONS is that they are all very important. Each of them must be taken seriously. If you breach any of them by driving and then get “caught” doing so then the penalties in many ways are more severe than an actual conviction for impaired driving itself. The minimum penalty at law for what is termed “driving while prohibited” is a seven day jail sentence, $300 fine and a one year driving prohibition.
One last thing to keep in mind is that a driving prohibition is not the same as a driving “suspension”. One’s driving privileges can be suspended, revoked or not renewed but that person is not necessarily “prohibited” from operating a vehicle on a road in B.C. This distinction is important to those who for whatever reason choose to drive without renewing their license but who may not be “prohibited” at law by the Courts or the SMV from operating a vehicle on any roadway in B.C. and different penalties apply. We, of course, do not condone such action but are alive to the fact that it does go on within the Province of BC by some people who choose to drive regardless of their actual driving status.
If you would like more precise details about the nature of these prohibitions then we ask that you call our office to discuss same. Obviously this is much too complicated and complex to explain in simple terms here.
This is not difficult. If you are reading this you will most likely already have had your actual physical driver’s permit card with your picture on it seized by the police and you will already have been served by the police with a document entitled a “Notice of Driving Prohibition under section 94.6 of the Motor Vehicle Act”. That document replaces your physical driver’s permit and effectively serves as your physical driver’s license for 20 days after its service upon you. In order to appeal the 90 day driving prohibition all you need to do is to attend to the Motor Vehicle Branch or an ICBC Driver’s Services Center (ie. where you apply for your driver’s license and pay fines) along with your document entitled “Notice of Driving Prohibition under section 94.6 of the Motor Vehicle Act”, tell the clerk at the front desk that you wish appeal the license prohibition and fill out the necessary form for the review to be initiated. The form for reviewing (or appealing) a 90 day driving prohibition is available at the Driver’s Services Centre and is not complicated to fill out. The form initiating the review/appeal MUST BE FILLED OUT AND DELIVERED/FILED at the Driver’s Services Centre within SEVEN (7) DAYS of being served the “Notice of Driving Prohibition under section 94.6 of the Motor Vehicle Act”, which is usually within 7 days of your initial dealings with the police or your actual impaired driving incident. If you do not compete and deliver this form within this 7 day requirement you may be barred from appealing the prohibition. (** NOTE: there are still steps that you can take to extend the 7 day time limit but you should seek legal advice to find out how this should/can be done).
The document that you will fill out at the Driver’s Services Center to appeal the 90 day driving prohibition is called an “Application to Review a Driving Prohibition” and a copy can be found at (www. .com)
If you are going to do the appeal yourself then you need not contact our offices prior to submitting this form. If you wish for our offices to become involved and represent you for your review before the SMV then you MUST contact us PRIOR to submitting the Application to Review a Driving Prohibition as you will need to obtain our available dates for the oral or written review. We are extremely busy lawyers and if you set a date for your appeal when we are not available then it may be difficult for us to change that date so it is important that you seek our instructions prior to your submitting the Application for Review IF you want us to actually represent you. If not then you can fill out and submit the form on your own and without seeking our prior instructions.
Please note that the review/appeal can be done either ORALLY (ie. over the phone at the lawyer’s office on a date/time specified by the SMV) or IN WRITING (ie. by a written submission prepared in advance of a certain date and forwarded to the SMV by post or fax). You must make your selection of how you want your review conducted when you fill out the Application form at the Driver’s Services Centre.
Immediately after you submit your Application for Review the clerk at the Driver’s Service Center will either provide you with some disclosure materials (ie. a small police report regularly filled out by the arresting officer) while you are in the office or later by mail or fax. Once you have this information available (which we lawyers call “Disclosure”) then you can either bring it to our office or fax it to us and we can provide you with our FREE legal opinion as to whether your appeal has merit or not. You should call us after you review your Disclosure from the SMV as sometimes we can find technicalities for you that may work to your benefit in your appeal. (** PLEASE NOTE: if you want us to become involved in your review it is up to YOU to call us and arrange a meeting to retain us to perform the review, however sometimes this can be done merely by our agreement over the phone)
Our office generally charges a small fee to actually conduct your review for you but you can choose to perform the review without us by yourself for free. Our opinion as to the merits of your appeal/review are usually free of charge.
Under the criminal law, depending upon your unique driving circumstances, you may be charged with a variety of different charges. Each charge has unique elements that the Crown Counsel (prosecutor) must prove in order to secure a conviction. Every case will be different and each person may be charged differently depending upon what the prosecutor feels he/she can prove. The charges may be one of the following:
(a) impaired operation of a vehicle;
(b) driving while over 80 milligrams of alcohol in 100 millilitres of blood;
(c) failure or refusal to provide a breath/blood sample;
(d) dangerous operation of a motor vehicle;
(e) failing to remain at the scene of an accident (Hit & Run); or
(f) criminal negligence.
If someone (a passenger in your car or another car or an innocent pedestrian) has been injured or worst yet dies as a result of your driving then the Crown will sometimes add an additional element to your charge, so that you become charged with “impaired driving causing bodily harm” or “dangerous driving causing death” or “criminal negligence causing death”.
Obviously the more serious the consequences which have been caused by your actions the more serious the charges will be to reflect your apparent actions. The seriousness of the charge is reflected by the added elements (ie. “causing bodily harm” or “causing death”). If the consequences of your actions are more serious (ie. bodily harm or death) then obviously any judicial sentence announced (after plea or trial) will consequentially be more serious (ie. jail time!)
You need to seek our advice or that of a qualified lawyer to explain them to you. What follows is a simple explanation of some of the usual or normal charges where alcohol is involved:
The basis for this charge is that you actually operated (ie. actually drove) or had care or control (ie. you were in the driver’s seat of the car and assuming the position of the driver but sometimes without actually moving the car) while your ABILITY to operate a car was impaired by the previous consumption of alcohol. If you are charged with this offence then the Crown will attempt to prove the charge by eliciting incriminating evidence of the following:
a. observations of your operation of the vehicle (ie. your driving pattern à swerving, moving violations, etc.)
b. observations made (by the police or others) of your physiology that might be indicative of alcohol impairment (ie. your physical symptoms of impairment à smell of alcohol on breath, bloodshot eyes, balance problems like swaying or staggering while walking outside your car and in the police station, difficulty with fine motor coordination [in for instance retrieving your license or insurance papers], slurred or incoherent speech patterns, and other factors) and
c. any verbal admissions that you made that would indicate that you were impaired by alcohol (ie. “Can’t you just give me a break”, “I drank way too much but I only have to drive 2 blocks to get home”, etc).
The Crown must prove though all of the evidence that your ability to operate a motor vehicle was impaired by alcohol at the time you were actually driving or in “care and control” of the vehicle. This charge has a largely “subjective” component as it involves observations made by various witnesses of you at the relative time and the inferential conclusions that might be drawn from these observations.
The basis of this charge is that you operated or had care or control of the vehicle while the concentration of alcohol in your blood (or what is termed your “BAC”) exceeded 80 milligrams of alcohol in 100 millilitres of blood. This charge regularly arises after the police have obtained samples of your breath or blood and the measurement of those samples exceeds the standard set by the legislature (ie. 80 milligrams of alcohol in 100 millilitres of blood). In Canada, provided your ability to operate a motor vehicle is not affected by alcohol, you are permitted to drive a motor vehicle with up to 80 milligrams of alcohol in 100 millilitres your blood. That is to say that it is not illegal to drive after having consumed some alcohol but it is illegal to drive after your level of alcohol in your blood exceeds those national standards.
Just how much alcohol that is depends upon many factors including:
(a) obviously the quantities and types of alcoholic beverages consumed by you;
(b) the timing of the consumption (ie. prolonged drinking over time or a large number of drinks over a short period of time);
(c) your weight at the time of consumption;
(d) whether you were on special medication that inhibited or accelerated your metabolism;
(e) whether you consumed food with the beverages consumed; and
(f) your tolerance to alcohol (ie. are you a “light-weight” so that alcohol remains in your body longer or are you a heavy drinker where alcohol is eliminated by your body faster than the average social drinker).
In many cases the police will obtain samples of breath from a driver either at the police station with the use of a breathalyzer instrument/machine or else at the roadside with the use of an “approved screening device”. All these instruments do is translate breath samples taken into them into a blood/breath ratio. Only the breath samples taken at the police station can be used by the Crown as accurate measurements of your actual BAC. Sometimes, and usually in cases where there is an accident, samples of breath cannot easily be taken (as the client is being treated at the hospital for injuries). In those cases the law permits the police (provided requisite measures have been met) to obtain actual blood samples from a client. Thus, on occasion, blood samples are used as proof of a client’s BAC.
To secure a conviction on a “driving over 80 milligram” charge the Crown must be able to put proof of the client’s BAC before the court and that proof must be substantial enough to show the BAC was over 80 milligrams at the time that the client was driving a vehicle. This charge therefore has a largely “objective” component to it in that it is, on its face, proven by science and the provision of physical samples of blood or breath.
This charge is thus similar to, but not the same as “impaired driving”. Because it is so similar to impaired driving a rule at law has developed so that the Courts cannot convict you of both charges at the same time. Much like a thief who after a bank robbery would only be convicted of either theft or possession of stolen property (ie. the money), the Courts in a case of a person driving while impaired by alcohol or driving with more than 80 milligrams of alcohol in their blood will effectively drop one of the convictions by judicially staying one charge at the conclusion of a case if a person is subject to a conviction on both counts.
The basis of this charge is that someone (who is usually a driver) was requested by a peace officer to provide a sample of their breath or sample of their blood but that that person unreasonably failed or refused to provide breath samples to the police.
The criminal law provides that, provided certain requirements are met or shown by the police to exist, then a person MUST submit to a breathalyzer request made by them. Sometimes, for instance at a roadblock the police request a driver to provide a sample of breath into a handheld device commonly referred to as a “roadside screening device”or “approved instrument”. Other times the police ask for a driver to come with them to the station to provide samples of breath into an actually breathalyzer instrument. The failure to provide samples upon the request of the police, including the failure to accompany the police so that they can take samples, barring a reasonable excuse, is an offence at law.
If you think about it if refusing to provide a sample of breath was not a criminal offence then anyone to whom the police lawfully made a request would simply refuse to do so. Thus Parliament has placed an obligation on those whom have been lawfully requested to provide breath or blood samples to do just that by making that “omission” to do something required or him/her unlawful. The failure to provide a sample upon a request by the police is a criminal offence that carries criminal sanctions which are the equivalent of driving while impaired or driving over 80 milligrams.
The basis of a refusal charge is unlike an over 80 milligram charge or an impaired charge. In essence your choice to refuse a breath demand is different that your choice to drive while impaired and the Court recognizes this distinction. If you are charged and convicted of both charges then two separate convictions can and will result.
This section applies to all criminal charges and not just impaired driving charges.
If you are charged with impaired driving, driving over 80 milligrams or refusal (or for that matter dangerous driving or hit and run) then normally you will be tried in BC Provincial Court. In order to understand the nature of the criminal trial process I urge you to visit another website that has been set up by the Criminal Justice System
Sometime it will become apparent that the charges are more serious than simple impaired driving or driving over 80 milligrams. The degree of seriousness and consequences has been discussed in a brief way in question#6 above. Where the charges are of sufficient seriousness or where the Crown feels that circumstances warrant (like for instance with a constant and/or repeat criminal or impaired driving offender) then the charges may be proceeded with by a trial in BC Supreme Court.
The decision on whether the charges are serious enough is left to the Crown and is not subject to review by the accused. If the Crown indicates that the charges are serious enough then the Crown will proceed by what is called an “Indictment” instead of in the regular course (or by what is called by “Summary Conviction”). If the Crown elects to proceed by Indictment then the accused can choose (or elect) to have his trial heard by a Judge or by both a Judge and Jury. It should be noted that jury trials for simple impaired cases are EXTREMELY rare and only occur in unique circumstances. Most (and in my experience about 95%) of simple impaired cases are resolved at the Provincial Court level.
The criminal trial process entails many appearances both by the accused and/or his counsel. What follows is a short summary of the nature of these appearances.
(a) The FIRST COURT APPEARANCE:
When you first had dealings with the police, if you are expected to be the subject of criminal charges then you were most likely served with a document called an “Appearance Notice” or a “Promise to Appear”. Before you are released by the police (at roadside or at the police station after the provisions of breath samples or refusal of same) they usually serve you one of these documents. Essentially when you signed that document (or when it was served upon you by the police officer) you agreed to come to court on the date mentioned in that document. Therefore you should read that document very carefully and find out what date you have agreed to appear in court and mark it down on a calendar so that you do not forget it.
If you forget your first appearance date and do not show up at court on the date and time specified then a warrant can and likely WILL be issued for your arrest. If this happens then you can be subject to re-arrest and to being held in custody unless and until the Court determines whether you should be released. This can be quite a hassle as you may be later arrested on a Friday and held until the following Monday with nothing to eat but a cheese sandwich and nothing to sleep on but a one inch mattress in a secure cell with a toilet courtesy of the famed “Grey Rock Hotel”. (Oh … I forgot to tell you … you may be sharing a cell with a drug addict, pimp, pusher or dangerous sex offender). Suffice to say it is best to either show up for your first appearance or arrange to have a lawyer show up on your behalf.
At the first appearance you will have to put aside about 1 to 1 1/2 hours. You appear in a very busy courtroom sometimes referred to as an “Initial Appearance Room” (or an “IAR”). Immediately outside the courtroom is a typed court list with the names of various accused on it. Check to see if your name appears on the list and the number that appears to the left of your name as your matter may be called or referred to by both the number and/or your name.
At the IAR there is a Prosecutor and a Justice of the Peace present. The Prosecutor is in charge of “calling the list” or designating which of the possibly 100 or 200 court files (yes you are a “file”) gets called in which order. Essentially if you show up without a lawyer you are given low priority and your name will eventually be called in open court. You must wait until your name is called before any further steps can be taken.
When your name is called you must come forward and identify yourself to the court. Once that is done it is customary for the Justice of Peace or the Prosecutor to ask you what you want done with your matter. At this point in time my advice to you is to ask the Court and the Prosecutor for: (1) a copy of the Police Particulars (which is a term of art the meaning of which I will outline later) and (2) for an adjournment of at least two weeks so that you can obtain the advice of counsel. (PLEASE NOTE: please note that if you have discussed your matter with me in advance of the first appearance then I will give you a precise date/time to adjourn the matter to so that I can attend at the next appearance for you). At your request the Court will regularly provide you with your two week adjournment and the Prosecutor will provide you with a copy of the Police Particulars and you will be given a date to return to court for your next appearance.
Sometimes when you attend the courthouse for your first appearance you will attend at the courthouse only to find that your name does not appear on the court list. If this happens then you should attend with your Promise to Appear to either/or both the Prosecutor’s office and the Court Registry and ask the staff there for further directions. Sometimes you will need to wait for your name to be added to the court list (so that it can be called by the Prosecutor in the IAR) and on other occasions you will be advised that charges have not yet been approved which means that you may have to be re-summonsed to court or will not be charged at all. If your name does not appear on the list do not leave the courthouse without clearing up WHY it is not on a court list and with some assurance from the Crown Counsel involved that you can leave the courthouse without being subject to a further warrant for your arrest.
PLEASE NOTE: it is not imperative that you have counsel with you (by your side) on your first appearance. About 85% of the people attend court will not have a lawyer with them at their first appearance. The reason that counsel do not attend with their clients is because very little is accomplished at the first appearance other than adjournments of appearance dates and the dispensing of the Police Particulars to an accused.
(b) AFTER YOUR FIRST APPEARANCE/ REVIEWING THE POLICE PARTICULARS:
At your first appearance if you have followed my above then you will have your Police Particulars in hand and will have a date and time to return to court for your second appearance. At this point in time you should make an appointment with our office to come in with your Police Particulars so that they can be reviewed by competent counsel.
The Police Particulars (or “particulars” for short) are simply a bundle of documents that are provided to you by the Crown that set out the precise nature of the case against you. In our criminal justice system the Crown Counsel is not entitled to a trial by ambush. Rather they must furnish to an accused all relevant and readily available evidence so that an accused person will know the nature of the charges against him and the details of the case to be presented against him/her if he later elects to proceed to trial.
The Particulars on a regular impaired driving or refusal charge usually entail some or all of the followings:
(a) The Information (which is a legal name for the “Charge Sheet”) which shows the charges against you;
(b) The Report to Crown Counsel: this is usually several pages long and is a summary of the involvement of all of the police officers who had dealings with you during the police investigation. This is essentially a summary of the case to be presented if the matter proceeded to trial;
(c) The notes of the investigating officers. During a police investigation all of the police officers who dealt with you usually take notes in their notebook which mark out significant events including the timing and rough details of various parts of the investigation. In the regular impaired case you will get the notes of the investigating police officer as well as the officer who conducted the breath samples (sometimes referred to as the “Breathalyzer Technician”);
(d) The Report to the Superintendent of Motor Vehicles. When the police charge a person they regularly (and within 24 hours) are supposed to fill out a 2 to 3 page report and fax same to the Superintendent of Motor Vehicles. This Report forms the basis for the 90 day driving prohibition which is discussed elsewhere above;
(e) The Certificate of Qualified Technician. This is the document that tells you the results of your breath tests;
(f) The Breath Test tickets. In cases where you have provided samples of breath at the police station the breathlalyzer instrument automatically prints out tickets which are important to your case;
(g) Other service documents: 24 hour suspension, Promise to Appear, Notice of Driving Prohibition, etc.; and
(h) Other document relevant to your case including hand-written or typed witness statements (if civilian witnesses were following and/or observed your driving and demeanour/symptoms of impairment) or other standard police reports like the RCMP report C-256 or investigation reports or hardcopies of actual 911 calls or police broadcasts.
Every case will have different particulars. What is important to note is that NO defence counsel worth his salt can give you an opinion about your case without having reviewed these particulars. When you bring these particulars to me I will read through them to determine the weaknesses and/or strengths of the case to be presented against you. The particulars are basically the blue print to the vault of your case. I will need to spend some time reviewing them (and sometimes have to request the Crown to produce additional reports) before I can really give you a legal opinion about the merits of your case. Once I have read over the particulars I can really start informing you about the options that may be available to you including strategies in how to handle your case. This opinion is regularly offered free of charge to all interested or potential clients.
(c) SECOND APPEARANCE or ARRAIGNMENT HEARING:
It is ONLY after your lawyer has reviewed the particulars that he can provide you with a legal opinion regarding the strength of you defence. I will need to review them before we choose to move forward on your case.
If you choose to have me represent you on the criminal/impaired driving matter then I will ask you for a retainer which is a monetary amount (the nature of which can be discussed between us) which is placed in our firm’s trust account under your name. The retainer is placed into trust as good faith that you intend us to represent you and is used to fund legal work that may be done regarding your defence between the first appearance and the trial date.
After settling on the retainer we will attend either with you or for you on your second court appearance.
At the second appearance, if we have determined that a trial MAY BE necessary then there will likely be an “Arraignment Hearing”. An Arraignment Hearing is a short hearing held before a judge (or in some cases a Justice of the Peace) which is held in open court. The purpose is threefold: (a) for the court to sort out what additional disclosure might be required of the Crown for the Defence; (b) for the issues to be narrowed between the parties including the determination of the number of potential witnesses that might be called and the admission of uncontroversial evidence between the parties; and (c) for the court to determine the length of time that might be required to hear the trial so that it can be scheduled with efficiency.
Prior to attendance at this hearing both the Defence and Crown must prepare a written report and file this with the Court at or before the Arraignment Hearing. The reports are largely formalistic and standard and are available online at www. .com.
After the Arraignment Hearing you will be sent by the court to the Judicial Case Manager’s Office (or the JCM’s office) which is at a location within the Court building. At the JCM’s office the JCM has a computer system that shows the court availability, the police witness availability and the Crown availability. The JCM is a Justice of the Peace who sets the trial dates after taking into consideration everyone’s availability dates. Usually in a case involving an “OVER 80 MILLIGRAMS” charge I will employ a forensic toxicologist for the Defence. This expert is usually necessary in cases where an accused indicates to me that he had consumed far less alcohol than was indicated by the breath tests. The forensic toxicologist that I regularly employ is very busy and travels throughout the Province (and country) as an expert witness. His schedule is VERY LIMITED and when your trial date is set we must take into account the expert’s schedule as he regularly books 6 months to a year in advance of a trial. If his time is not booked by the time that the JCM sets the trial dates then there is no likelihood he will be available for your trial.
As indicated the JCM sets the trial dates for your matter and he/she will adjourn you directly to those dates.
The court system is set up so that it is run very efficiently. In order to ensure that the trial matter is actually going to proceed on the trial date that is scheduled in EVERY CASE the JCM will also set another date in addition to the trial date for the accused and his counsel to appear in court. This date is called a Trial Confirmation date.
(d) The TRIAL CONFIRMATION DATE:
As indicated this is a date that is regularly set by the JCM about 4 to 8 weeks before your trial date. It is basically a short court appearance that is required to be made at the court in the month or two before the trial so that the Court can confirm that every party has their ship in shape and is ready to go to trial. I refer to this date as “roll call” because very little happens at this hearing.
At or before the Trial Confirmation date the defence must file a written report with the court. This report is called a “Trial Confirmation Report” and can be found at
After the filing of this report it is very difficult to secure any adjournments for the trial of your matter. Therefore it is our practice that we, as counsel, must be fully retained to perform all of the work necessary for your trail by this date. I do not make any exceptions for any clients on this difficult issue. In order for me to be confident in your defence I have to be confident that our retainer is fully paid.
If the accused does not show up for this court appearance then a warrant can and will issue by the court for his/her arrest so any accused/client should make sure to note this date on a calendar with a view on attending court for “roll call”.
(e) The TRIAL DATE:
The trial date is rarely changed after the Trial Confirmation Date. Sometimes, however, owing to the court’s other commitments or due to thoroughness your case cannot be completed in the time necessary. If that happens then at the end of the court day (which is regularly 4:30 pm) your trial will be adjourned for continuation. If this happens then all parties re-attend at the JCM’s office to re-set the continuation date on a date convenient to all parties including the Crown, Court, Defence and various witnesses.
A logical question always pondered by prospective clients. Every case differs depending upon the facts of the case. We can discuss this when I review your particulars. If you are interested in some of the cases which show some of the technicalities available then I urge you to visit the following webpage to read up on this area of law.
If there is just too much to risk – your job – your family – your ability to travel unimpeded you may want to ensure that all of the basis are covered before you enter any guilty plea. This is why I encourage you to read up on the cases that we have done for others and understand the complexity of these charges.
The short answer to this question is that the breathalyzer and the technicians trained to operate them BOTH make mistakes. A simple thing like an undetected burp within 15 minutes prior to performing a breath test can throw off the breathalyzer so as to make any reading obtained by it to be unreliable. A mistake by the officer in not providing you with your lawyer of choice at the police station can lead to inadmissible breath test evidence. A clever cross examination of the investigating officer can show weaknesses in the Crown case that can lead to an acquittal or a deal with the Crown.
It is very rare that my clients either plead guilty to an “over 80 charge” or are found guilty by the courts. In any event I would not recommend that you plead guilty without obtaining proper legal advice from a qualified lawyer.
B. PERSONAL INJURY / ICBC CASES:
At the accident scene you should attempt to do as follows::
- ensure your safety and seek medical help where necessary;
- if you are able then obtain the FULL details of all other parties involved in the accident, including their names, addresses, telephone or email contact numbers, birthdates, driver’s license numbers, license plate numbers, insurance details (name and policy number of other driver’s insurer, especially if the other driver is not insured with ICBC);
- if you are able then obtain the FULL names, addresses and telephone or email contact numbers of ANY witnesses to the accident; ask the witness what he/she saw and obtain a statement if possible from them about the details of the accident from their point of view;
- DO NOT admit any responsibility for the accident (a qualified lawyer may be able to help you determine whether in fact you are completely or partially at fault later and if appropriate then an admission of liability can be made);
- DO NOT immediately move your car from its resting position as the resting location of the vehicle may help to later determine liability (ie. who’s at fault for the accident); if you have a camera with you (many cellular phones have cameras these days) then you should document the damage (of all vehicles involved) by photograph; it is also a good idea to take photographs of the other parties as that might later help identify them to ICBC, the police and/or our Process Server (if legal action later becomes necessary).
- obtain the names and badge numbers of any police officers or emergency personnel that are investigating/attending the accident;
- if you are a driver involved in a motor vehicle accident in British Columbia then you have a duty to report this accident to your insurer (usually ICBC) and if the damages in the accident are over $1000.00 then under the provincial legislation governing motor vehicles (ie. the Motor Vehicle Act [www. .com] you have an obligation report it to the authorities (ie. the police);
- before you provide ANY information to the police or ICBC you have the right to speak with a legal representative of your choice; DO NOT get bullied into providing a statement to either the police or ICBC without first exercising your right to consult with a legal representative; we are to speak with you after an accident on a 24 hours a day basis;
- NEVER depart the scene of the accident without at least attempting to identify yourself to the other parties involved (which may include the owners of vehicles or personal property which may have been damaged in the accident) or the authorities; you should know that if you depart the accident scene without attempting to locate the owners/drivers or injured parties that ICBC may refuse to cover the damages to the vehicles involved (or refuse to cover you for other third party damage); of course it is not not always possible to locate the other parties to your accident and, especially if you are injured and taken from the accident scene by ambulance you may not even get a chance to locate the other parties,
- AS SOON AS YOU CAN you should contact a qualified lawyer to help you with the process of instituting a claim for damages with the relevant insurance companies that may be involved; this will involved the lawyer helping you report the claim and helping you fill our the appropriate documentation for medical/rehabilitation and/or wage loss benefits;
- YOU SHOULD BE AWARE that our telephones are answered 24 hours a day 7 days a week including holidays.
If you have been involved in an accident that is the fault of someone else and you have been injured as a result then you may a case against the person at fault for their “negligence”. If you or a loved one has suffered personal harm or injury, death, wage loss, care costs, future loss of earnings or even medical expenses as a result of the accident then you may be entitled to monetary compensation. Some of the types of accidents that can lead to monetary damages are as follows:
(b) Car accidents;
(c) Pedestrian accidents;
(d) Public transportation (Bus or Taxi) accidents;
(e) Motorcycle accidents;
(f) Bicycle accidents;
(g) Boating accidents;
(h) Skiing accidents or other sporting accidents;
(i) Slip & fall accidents; and
(j) Dog/Animal bites.
It is not the type of the accident that is important in order to seek compensation but rather a determination of fault or the negligence or another party that causes your injury that is important in order to claim financial compensation for “personal injury”. So if you are involved in a motor vehicle accident (mva) and someone else is at fault for the accident then you may have a case against the other driver for personal injury. Or for instance you slip & fall in a premises (say a grocer store where there was a puddle of milk on the floor) and there was inadequate warnings or measures put in place by that owner to prevent the injury then you may have a case for damages against the owner of that store. Or if your neighbour’s pit bull terrier knocks you down and chews you up (and that dog is known to be dangerous) then you may have a case for damages against the owner of that dog (ie. your neighbour).
There is an endless amount of accidents that could have been prevented from happening in the first place, or situations where the damages caused could have been lessened if a driver, owner/occupier, pet owner or whoever, took effective and immediate precautions to avoid the accident. The law recognizes that those who suffer harm owing to the fault or negligence of another is entitled to fair compensation. The amount of that compensation will depend upon several factors.
Our law firm handles ALL types of circumstances that lead to injuries including: motor vehicle accidents, bus accidents, pedestrian accidents, bicycling accidents, boating accidents, skiing accidents, slip & falls, dog bites, etc.
In my years of practice I have dealt with many different types of injuries caused by accidents including but not limited to the following:
a. Brain injuries: from headaches to traumatic brain injury;
b. Spinal cord injuries;
c. Loss of movement;
d. Loss of limbs,
e. Internal organ damage;
f. Loss of eyesight, hearing or other sensation;
g. Dental loss or TMJ problems;
j. Complex Regional Pain Syndrome injuries;
k. Psychological injuries, including PTSD, Depression and/or Anxiety;
m. Neck and back injuries;
n. Shoulder injuries: including Thoracic Outlet syndrome, frozen shoulder, torn rotator cuffs;
o. Broken bones;
p. Knee injuries, including torn ACL, patellar pain, dislocations;
q. Hip and joint injuries;
r. Chronic Pain syndrome; and/or
s. Other oft tissue injuries.
Many times as we get older we injury ourselves doing simple things like gardening or sports or simply walking on uneven surfaces. Sometimes the effects of those injuries stick with us but are later aggravated or made worse by another accident that is not our fault. In those types of cases you can still seek compensation for the additive affect of the subsequent accident that caused you injuries and that were not your fault. Therefore just because you were previously injured does not mean that you do not have case for personal injury against the responsible party. Sometime people are injured in one car accident and weeks or months later they are injured in another accident. In those cases you may collect monetary damage against the parties responsible (or ultimately their insurers) in the degree to which they have caused you harm. The degree of causation may be something that medical professionals later have to determine with their expertise.
In most cases, like for instance in a simple car accident, driver’s carry insurance for “third party liability”. A store may also carry similar insurance to insure against accidental damages caused in a slip & fall. A home owner may carry insurance that covers damages caused by their pets or for accident loss caused by a slip & fall. Therefore in the large majority of the cases it is the Insurance Companies that end up paying for the damages caused to you in the accident whether it is a car accident, bike accident, bus accident, skiing accident, slip & fall, etc. The majority of times, if the party that causes harm has sufficient insurance coverage the Insurance Companies will indemnify and hold harmless that party and the offending party will never have to pay for any damages caused beyond the insurance deductible or minor crash responsibility charges. Sometimes if the offending (at fault) party does not have sufficient insurance coverage he/she will be “on the hook” to pay for monetary damages that are in excess of his/her coverage. Other times the insurance company may hold a offending driver or owner to be in breach of their insurance coverage (such as in the case where the offending driver is “drunk” or leaves the scene of the accident) and in those cases an offending party may, eventually, be held financially accountable for the accident by the insurance company. For more information about a possible “breach of insurance” due to intoxication or hit and run you should contact our office. You might also refer to the relevant portions of the legislation governing this area of law at [www. .com] – see section 55(8), 73, 24, 25
In most personal injury cases the person injured can expect to collect monetary damages that are attributable to the accident as compensation. The form of the compensation will obviously be different depending upon the nature of the injuries. The following is a list of some of the things that one might claim:
a. damages for pain and suffering and loss of enjoyment of life (the extent of the award will depend upon a variety of factors including the type of injury suffered; the age of the injured party; how the injury has affected the injured party’s life and how badly the injury is expected to affect the injured party in the future;
b. damages for wage loss (if you are temporarily disabled and miss work after an accident that you can expect to collect the “dollar for dollar” equivalent of your provable loss);
c. future wage loss or loss of ability to earn income (if you are somehow permanently disabled, even if it is a partial permanent disability [ie. the loss of your pinky finger which may effect your manual dexterity or a back injury which may effect your ability to perform heavy work] then you can expect to collect a sum a money that is equivalent to that provable future loss or income. The proof of that future loss is sometimes a difficult task and usually involves an abundance of medical assessment);
d. past care cost (if you have spend money for your medical care then you can expect to collect a sum of money equivalent to those expenses but ensure that you keep the receipts to prove this loss);
e. future care costs (if you will suffer repeated medical expenses in the future owing to your accident-related injuries then you can collect a sum of money equivalent to that future loss);
f. out of pocket expenses (if you suffer out of pocket expenses like for travel to/from medical appointments, cab fare, parking, etc, then this is also recoverable but again – KEEP track of these expenses in a log or receipt book);
g. legal costs (sum of the legal costs associated with advancing your personal injury case are recoverable as the court system recognizes that often legal experts, lawyers and their agents are a necessary part of the process).
Many times people who are injured in a motor vehicle accident have immediate needs like paying for their rent, mortgage, car payments and immediate medical bills. After an accident which causes injury an accident victim may be put in the position to have to pay up front for medical treatment or pay their bills without having a continuing paycheck.
If you have medical coverage and/or disability insurance coverage through your place of employment then by and away that disability insurer will take the lead and either pay for (or reimburse you for paying for) medical bills (ie. medicine, physiotherapy, hospital bills) and wage loss (ie. short term and/or long term disability benefits). In order to start the ball rolling you will need to apply with that disability insurer (ie. Sun Life, Clarica, Manulife) for coverages. Largely this can be taken care of by the person responsible at your place of employment (ie. Human Resources Manager) however you will have to fill out an application for whatever benefits are available through the employer’s plan. WARNING: if you were injured in a motor vehicle accident you might also possibly have to sign a “Subrogation Agreement” with your employer’s disability insurer in order to obtain any benefits from them. A “Subrogation Agreement” is an agreement for you (or your legal representative) to re-pay the disability insurer (ie. Sun Life) for any payments that you may receive in the future for wage loss, future wage loss or medical expenses. The subrogation agreement is largely meant to guard against an injured party “double-collecting” for his accident related injuries. Before signing any subrogation agreement you should have that agreement looked over by a legal representative.
If you DO NOT have medical coverage and/or disability insurance coverage through your place of employment then there is a variety of different sources through whom you might receive immediate medical benefits and/or rehabilitation benefits and/or temporary wage loss benefits. If you are injured and are not covered by an employer’s medical/disability insurance the very first thing that you should do is to apply for employment assistance with Human Resources Development Canada (“HRDC”). Even if you do not believe that you will covered by HRDC (ie. you have not worked the minimum required weeks to obtain coverage) you should still apply for these benefits. There are a variety of different coverages available (ie. “medical leave”) and you should inquire of the HRDC representative of what coverages may apply for you. If you do not qualify for any HRDC help then you should ask for a written explanation confirmation from HRDC their refusal to offer you benefits.
Even if you are covered by HRDC benefits, or after you have exhausted them, you may still seek immediate financial help for medical or rehabilitation expenses or for temporary wage loss disability benefits from ICBC while you are incurring the expenses or suffering from a disability caused by a motor vehicle accident.
Under Part 7 of the Regulations (1984) to the Insurance (Motor Vehicle) Act, ICBC is required to pay for certain expenditures that relate to your immediate medical needs (ie. for certain medical and rehabilitation expenses) and/or for temporary wage loss benefits PROVIDED THAT you have jumped through all of the appropriate hoops. We can explain the process including what hoops you may need to be jumped through in order to obtain these immediate benefits if you call us. You may also wish to investigate ICBC legal obligations further by visiting the followings links:
www. .com (Insurance (Motor Vehicle) Act.
www. .com (ICBC information page)
If you have no place else to turn and, for some reason, do not qualify for any public or private assistance there may other forms of financial help available to you including:
(a) advances on an expected settlement that can be accessed through ICBC; (b) personal loans that can be made to you by outside financial institutions that specialize in advancing injured parties monies with deferred payment until the settlement is made or court action resolved (see for instance the following link: www. .com or www. .com); (c) personal emergency loans that our firm may advance to you or directly to your medical professionals; (d) deferral plans that can be arranged by us with your medical professionals (ie. chiropractors or physiotherapist or even for diagnostic tests like MRIs) for these treatment/diagnostic costs so that you need not pay then until your case settles; (e) community based resources which can be accessed by you to pay for extraordinary medical expenses.
YOU SHOULD BE AWARE that you must ensure that you al least apply and attempt to secure benefits from all sources that may be available to you or the Court may later make deductions against you for the amounts that you could (and should) have tried to access when they were available.
YOU SHOULD ALSO BE AWARE that the current weekly maximum that ICBC has to pay a person injured in a motor vehicle accident for weekly wage loss benefits under the statutory regime is only $300 per week which is really a pittance and will hardly cover your monthly bills.
YOU SHOULD ALSO BE AWARE that ICBC, in my opinion, makes it incredibly difficult for people to access the immediate benefits that they require. For instance, in dealing with rehabilitation expenses though ICBC may approve physiotherapy or other treatment for funding so that the physiotherapist gets paid by ICBC for your visits you may still be charged a surcharge by physiotherapist every time you visit them. (ICBC is quick to point out that these expenses can be reimbursed as “special expenses” at the end of your claim but to my way of thinking it merely puts more impediments in the way of obtaining treatment for persons injured in motor vehicle accidents). ICBC is in my opinion also very slow to approve funding for any treatment and often require incessant medical referrals or medical examinations prior to your obtaining approval.
At our firm we attempt to help clients secure all possible funding for our client’s immediate needs by doing some or all of the following:
(a) working with the various insurance agencies to obtain reimbursement for our clients for medical expenses (like medication expense),
(b) working with doctors to obtain the necessary medical referrals for our clients’ proper treatment and then ensuring that ICBC fund those therapies where medically necessary and where circumstances dictate;
(c) working with employers to obtain the information necessary to provide to ICBC so that if wage loss benefits become immediately due then they will be paid on time;
(d) obtaining deferrals on payment from treating medical professionals so that they will be paid at the end of your claim; and
(e) providing emergency loans to clients when necessary and where circumstance permit.
We do not just sit in the wings and wait for settlement. It is our commitment to help clients as best we can to obtain every form of funding available for their immediate needs.
In certain circumstances ICBC may attempt to secure your past medical records or have you seen by one of their chosen physicians.
Usually at your first meeting with ICBC, if you look to be making a future claim for compensation with them, the ICBC representative will attempt to have you signed an authorization for ICBC to obtain your private medical records. DO NOT SIGN THAT AUTHORIZATION. Instead seek immediate legal advice from us about the repercussions of signing versus not signing that authorization as the harms may far outweigh the benefits depending upon the case.
Eventually if you proceed with a legal action for personal injury damages or you are requesting that accident benefits (ie. medical/rehabilitation benefits or wage loss benefits are or will be payable by ICBC) then the law in BC currently gives ICBC the right to send you to for a private medical examination. They call these “Indepdendent” Medical Examinations or IMEs. In my opinion they are far from INDEPENDENT. ICBC has had-picked medical professionals who make a large annual income from performing these medical examinations and preparing these reports for ICBC. Obviously if ICBC is helping that medical professional pay for his Whistler Condo or his kid’s braces and fancy private schools then that doctor will want to continue to live off that “gravy train”. The IME reports cost ICBC several thousand dollars each and you do not have to be a genius to figure out that the IME reports are usually take a critical or “justifiable” position and regularly downplay the injuries suffered by a client. Your obligation to attend for these independent medical examinations with ICBC’s chosen-few doctors will depend upon the circumstances facing you and your obligation to attend at the IME should be discuss with your legal representatives.
IF you are a client of this firm you can be certain that IF ICBC sends you for an IME with one of their doctors (and even if they don’t) in the vast majority of cases we will set up appointments for such medical examination(s) that may become necessary including the following: (a) private MRIs which can be done within a week not take months or years; (b) medical referrals and attendances with BC’s top treating orthopaedic medical practitioners for Plaintiff oriented IMEs paid for by the law firm; (c) functional capacity examinations with noted occupational therapists who are qualified to give evidence in court if necessary; (d) neuron-psychological exams with qualified professionals, etc. We will have you seen by the best of the best so that we can obtain the best possible prognoses for you. For it is only after receiving the advice of these medical doctors that we can properly assess the fall-out and appropriate settlement for you. We DO NOT just sit by and let ICBC send you to their medical doctors. We are proactive in ensuring that our experts will match or better those of ICBC if your matter ends up in court.
When you have been injured ICBC will need to not only assess the nature of your injuries (and how they might affect you in the future) they will also want to attempt to downplay your injuries in order to goad you into a small settlement. In order to do so ICBC will want to secure all of your medical history, educational history, vocational (workplace) history, claims history with Workers Compensation Board or other disability insurers, etc. They have plenty of resources to investigate your claim and they use their resources to build up a case against you. In my view the insurance company’s take a “smoke and mirrors” approach to defending personal injury cases. If they find out information about you they will not be afraid to use it against you to defeat your claim. They will attempt to blame the effects of your injury on anything by the accident. They always look for “congenital” difficulties (ie. problems that they say you were born with or developed over time) or other accidents (ie. post-mva sporting injuries, etc.) upon which to blame your mva-related injuries. As mentioned in the preceding paragraph they will hire their doctors who will be paid to support and testify in court to legal positions contrary to yours.
To a large extend the insurance company does not really care WHAT YOU SAY happened in an accident or WHAT YOU SAY the medical fall out of the accident is. The insurance company will only stand up and take notice of your claim for injury if it is supported by medical diagnostics and medical opinions. The insurance companies thus do care what the doctors say about you. Therefore it is absolutely necessary that you have your injuries supported and documented by medical professionals. The clinical records of all of your treating medical professionals is really the roadmap to your claim. Doctors are trained to take good notes regarding your injuries so that they can later report then in medical-legal format. Every visit you make to your treating medical professional (whether it is in a hospital, at the family doctor, a chiropractor, a physiotherapist or even a massage therapist) is always recorded. The notes relating to your visits will likely later be disclosed by your lawyer to the insurance company’s lawyers. Therefore everything that you say to your treating medical professionals might eventually become an important piece of the puzzle.
YOU SHOULD BE AWARE that you should be as detailed as possible with your medical doctors so that all the injuries relating to your accident are reported. YOU SHOULD ALSO MAKE SURE that your medical professionals are both making detailed notes relating to your injuries and are making the appropriate referrals to recognized experts.
Only after obtaining a proper medical prognosis can your lawyer accurately assess your claim. If you refuse treatment deemed necessary then the insurance companies will tell the court that you did not properly “mitigate” your damages and will later seek to have any award reduced as a result. Therefore you do need to seek all appropriate medical assistance in order to properly treat your mva-related injuries and obtain a proper prognosis.
At our firm we will guide you through this process if you hire us to deal with your claim.
When you hire our firm to represent you in an injury claim almost 100% of the time we will act for you on a contingency fee basis. What that means is that we do not get paid unless and until you get paid by the insurance company or offending party. Our legal fees are paid as a percentage of the award/settlement. If you receive an award then the lawyer will get paid from the settlement award not from you. Therefore there is little risk in terms of legal fees. Though the actual percentage related to our fees vary from case to case I think that you will find our standard contingency fee agreement both reasonable and easy to understand.