Robbery, Assault and Impersonating a Police Officer – NOT GUILTY After Trial
R. v. A.S. (2013 B.C. Provincial Court)
Client accused of impersonating an undercover police officer in order to deceive a driver to pull over, before then attempting to rob the driver of his wallet, punching him at least three times in the face in the process. The assailant got away, but the police located a number of fingerprints, some of which belonged to Client, on the vehicle door, in the general area of where the driver said the assailant touched the vehicle while assaulting him. The fingerprint match led to a subsequent arrest and prosecution of client. At trial, Vancouver Criminal Defence Lawyer Emmet J. Duncan challenged the admission of the fingerprint match, on the basis that the original fingerprints, which police had taken from Client three years earlier when Client was a youth, were taken in violation of his rights under the Charter of Rights and Freedoms. Mr. Duncan argued further that to allow the Crown to rely on the fingerprints in Court might perpetuate the kinds of breaches that had taken place while Client was a youth. The judge agreed, and refused to allow the Crown to lead the evidence. There was no other evidence implicating the Client, so the Court found the Client NOT GUILTY. Client receives no jail and no criminal record.
Stanley Cup Riot Sentence Upheld in Highest Court
R. v. A.P. (2013 British Columbia Court of Appeal & 2012 B.C. Provincial Court)
In 2012, Vancouver Criminal Defence Lawyer Emmet J. Duncan represented one of the first of the so-called Stanley Cup rioters to be charged, and one of the first to be sentenced. The stakes were very high, because although the Client was young, had no criminal record, had excellent family and community support, was employed and was a full time University student, the Crown still sought a lengthy sentence (9 months) of conventional imprisonment. The reason the Crown sought such a stiff penalty was that the Client was said to be one of the Riot’s “early instigators”, and because the Client had not only taunted police, but had “sucker punched” and thereby assaulted a citizen who, as it turns out, was trying to put fires out (though that was not known to the Client). The Crown was staunchly opposed to a “house arrest”-based sentence, or even a sentence that could be served on weekends, so as to preserve the Client’s ability to attend school. In a two day hearing dedicated to the appropriate sentence, Mr. Duncan presented lengthy arguments supporting a lenient sentence, taking the Court through numerous previous authorities, upwards of two dozen character references and a thorough and comprehensive risk assessment report prepared by one of British Columbia’s leading forensic psychologists and experts in risk evaluation.
Following those submissions, the Court disagreed with the Crown and agreed with Mr. Duncan that although the sentence must reflect the community’s intolerance for behaviour like the Client’s, and though the sentence must serve as a message to others who in the future may wish to involve themselves in such upheavals, that the principle of rehabilitation must be seriously addressed, and that it justified a more lenient sentence. The Judge imposed a 60 day sentence, to be served on Fridays-Sundays, so that the Client could continue attending school.
The Crown was disappointed with the result and decided to take Mr. Duncan’s case, along with one other, to the province’s highest Court – the British Columbia Court of Appeal – as a “test case”, inviting the Court to direct the Provincial Court judges that the sentences they had been handing down were too lenient, and that unless the offender was a youth or had a mental disability, every single riotermust go to jail.
Along with a colleague, Mr. Duncan argued the case in the Court of Appeal and was successful in winning. The Court upheld the original sentence, agreeing with submissions that Mr. Duncan’s team made, that although sentences in older riots were longer and harsher, that amendments to the Criminal Code in 1996 that were designed to reduce incarceration in favour of rehabilitation made those older cases ones which must be approached with some caution.
At the time of the appeal, the Client had in fact completed his jail sentence, and the Crown was seeking his re-incarceration. As a result of this work in the Court of Appeal, the Client’s sentence remained as is, and he continued to contribute to the community, including his Community Work Service and the restitution he paid to the owner of one of the vehicles that was lost in the Riot.
This case is now the leading case on riots in British Columbia, and in relation to the 2011 Stanley Cup Riot in particular.
Grow Operation – NO CHARGES
R. v. C.K. (2013 Investigation)
Client’s home was searched pursuant to a warrant, during which police discovered a reasonably sizable grow operation. In discussions Vancouver Criminal Lawyer Emmet J. Duncan had with Crown counsel, Prosecutor accepted that the Crown would not be able to prove that the Client intended to distribute (or traffic) in any of the marijuana. As a result, Crown decided to lay no charges. Client received no jail and no criminal record.
Dangerous Home Break In Charges Dropped for a Plea to Mischief
R. v. S.S. (2013 B.C. Provincial Court)
Client broke into a house nearby a hospital where Client had been admitted. Client was afraid for his life, but the homeowner mistook Client for someone who wished to rob him. Client was severely beaten by the homeowner and hospitalized, then charged with breaking and entering with intent to commit indictable offence. Vancouver Criminal Lawyer Emmet J. Duncan obtained a preliminary expert opinion regarding Client’s mental state at the time of the offence, and then convinced Prosecutor that the Crown had no substantial likelihood of obtaining a conviction for breaking and entering (also known as “B & E” or “B and E”). Client plead guilty to mischief by breaking the homeowner’s window, and was released that day.
Residential Break-and-Enter and Burglary – No Jail
R. v. C.M. (2012 B.C. Provincial Court)
Client burglarized a house which had, hours earlier, been the scene of a very serious and violent home invasion in which two young boys had been terrorized. Client was connected to the offence through DNA evidence. Because of the circumstances of the offence, the strength of the case and the fact that Client had a previous record, it was impossible to avoid a criminal record. The Crown initially sought a lengthy jail sentence, but Vancouver Criminal Lawyer Emmet J. Duncan successfully persuaded first the Crown and then the Court that because of Client’s excellent rehabilitative prospects, the Client should be permitted to serve his sentence under supervision in the community. Client was granted a conditional sentence that permitted him to continue working towards his trade designation and turn his life around without having to go to jail.
Multiple Break & Entry Charges – Stay of Proceedings
R. v. J.S. (2008)
Client charged with eight counts of Break and Enter, including residential B&E and Possession of Stolen Property; Crown’s case included statement of a co-accused and fingerprints – CHARGES DROPPED after successful negotiations between Mr. Duncan and Crown Counsel in both British Columbia and Ontario
Theft Under – NO CHARGES LAID
R. v. M.S. (2009)
Quick intervention with Crown BEFORE charge decision is made leads to ALTERNATIVE measures INSTEAD of charges – NO CHARGES LAID
Shoplifting – Charges DROPPED
R. v. N.M. (2010 BC Provincial Court)
Client arrested after shoplifting from large department store. Vancouver Criminal Defense Lawyer Emmet J. Duncan persuaded Crown Counsel to take into account Client’s background, which included NO CRIMINAL RECORD and to agree to DROP THE CHARGES by diverting Client to Alternative Measures, in which she agreed to conduct community work service and to write a letter of apology. Client completed the program and the Prosecution DROPPED the charge resulting in NO CRIMINAL RECORD for the Client.
Break & Enter and Theft – No Charges Laid
2010-2011 Police Investigation and Crown Counsel Evaluation
Client involved in difficult relationship breakdown, breaks into ex-partner’s residence and steals a laptop computer. Client admits to involvement when confronted by ex-partner. Vancouver Criminal Lawyer Emmet J. Duncan persuades Crown counsel that the matter is one for which Client feels tremendous remorse and that it was out of character and resulted from the stress of the personal relationship breakdown. Crown agrees to refer Client to Alternative Measures instead of laying charges. Client successfully completes diversion resulting in NO CHARGES, NO CRIMINAL RECORD and NO JAIL
Mischief Allegation – No Charges
Client involved in dispute with another bar patron after a hockey game over priority to be given to a recently-arrived taxi-cab. Dispute escalates to Client “elbowing” the window of the taxi-cab which causes it to shatter. Client has no criminal record and an exceptional record of community and volunteer commitment, particularly in relation to “at risk” youth. Vancouver Criminal Lawyer Emmet J. Duncan persuades Crown that the incident is totally out of Client’s character. Client writes a letter of apology, pays for the damaged window and in recognition of Client’s superior community involvement, Crown agrees to NO CHARGES, NO RECORD and NO JAIL.