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Violent Offences

Road Rage Assault Charges DROPPED

R. v. S.M. (2014 B.C. Provincial Court)

Client driver accused of getting into a confrontation with another motorist over a maneuver on the road.  Client alleged to have gotten out of vehicle and eventually to have struck the other driver with a weapon before fleeing.  The other motorist had arguably precipitated the confrontation with aggressive and impatient driving.  Vancouver Criminal Lawyer Emmet J. Duncan negotiated an agreement with Crown counsel to DROP ALL CHARGES in return for Client preparing a written apology and completing volunteer work in Downtown Vancouver.  Client receives NO JAIL TIME and NO CRIMINAL RECORD.

Road Rage Assault – NO CRIMINAL RECORD

R. v. D.A. (2014 B.C. Provincial Court)

Client was involved in two motor vehicle collisions with the same individual.  Tensions spilled over and eventually Client confronted the other driver, destroying some of the man’s property before threatening the man so seriously as to constitute an assault.  Police breathalyzed Client at the scene and determined that he was impaired.  Client has no criminal record and immediately recognized that he had made a serious mistake.  He had been going through a marriage breakdown, had too much to drink and completely overreacted.  With guidance from Vancouver Criminal Defence Lawyer Emmet J. Duncan, Client enrolled in anger & conflict resolution therapies and immediately stopped drinking all alcohol.  Client’s professional career included frequent business travel to the United States and Client was worried that a criminal record would jeopardize access to the U.S.  Client was also concerned about the consequences to his status in Canada, as he is a Permanent Resident in Canada and citizen of the European Union.  Client wanted to plead guilty and take responsibility for his behaviour.  Mr. Duncan persuaded Crown counsel not to seek a jail sentence, but could not persuade the Crown to support a “conditional discharge”, in which the Client could plead guilty but not receive a criminal record.  Crown insisted the incident was serious enough that it required a criminal record.

In Court, Mr. Duncan presented the Client’s explanation for his behaviour, as well as his previous excellent character.  He outlined the tremendous community support that Client has, as well as all the steps the Client had taken to change his life since the unfortunate incident.  Mr. Duncan asked the Court to consider the extraordinary remedy of an absolute discharge, in which Client would receive no jailno criminal record and no further conditions.  The absolute discharge is the most lenient sentence a Court can impose and is very rare in cases of violence, and almost unheard of in cases of road rage.

Assault Charges DROPPED

R. v. K.N. (2014 B.C. Provincial Court)

Client accused of assaulting fellow classmate while as part of an ongoing dispute.  Despite being offered the opportunity to be “diverted” out of the criminal justice system if he was willing to admit fault, write a letter of apology and perform some volunteer work hours, Client insisted on his innocence and refused to accept any “deals.”  Discussions between Vancouver Criminal Defence Lawyer Emmet J. Duncan and Crown counsel were ongoing over the course of several months.  Days before trial, Crown counsel interviewed a witness and after discussions with Mr. Duncan, concluded that an acquittal (not guilty finding) was the most likely outcome of a trial.  Crown counsel, recognizing a duty to be fair and reasonable, agreed to DROP ALL CHARGES against Client.  Client is a young man with tremendous career potential that may include opportunities in the United States.  Client’s Canadian opportunities also require that he be of impeccable reputation.  As a result of this outcome, Client receives no criminal record.

Spousal Assault Charges DROPPED – No Criminal Record

R. v. J.M. (2014 B.C. Provincial Court)

Client’s spouse alleged that Client had assaulted her some weeks before the complaint was reported to police.  Client was arrested on a Saturday morning.  Vancouver Criminal Defence Lawyer Emmet J. Duncan was successful in overcoming police reluctance to release Client by negotiating release directly with Crown counsel on the weekend.

Over the following weeks, Mr. Duncan worked closely with the spouse’s counsel as well as Crown counsel to reintegrate Client with his family, including facilitating contact with his young children, and facilitating relationship counselling, which led to progressively more integration.  Mr. Duncan also worked with Crown counsel to determine spouse’s wishes on the file, which included not continuing with the prosecution, all of which led to the eventual and ultimate resolution of the file by way of the Crown dropping the charges.  Client receives no jail and no criminal record.

Assault Causing Bodily Harm – CHARGES DROPPED

R. v. A Client (2014)

Client alleged to have assaulted an individual at a party.  The individual suffered serious injuries.  Vancouver Criminal Defence Lawyer Emmet J. Duncan persuaded Crown counsel, based on Client’s age and previous impeccable character, to permit the Client to prepare an apology, participate in counseling and complete community work service hours.  At the conclusion, the Court DISMISSED ALL CHARGES so that Client did NOT go to jail and has NO CRIMINAL RECORD.

Robbery Spree – NO JAIL

R. v. L.A. (2014 B.C. Provincial Court)

Client was the “wheel man” on a spree of four daylight robberies of pharmacies in which thousands of dollars of prescription drug medications and cash were stolen by a masked man.  Despite recent changes to the Criminal Code that require jail in almost all cases of this sort, Vancouver Criminal Defence Lawyer Emmet J. Duncan persuaded the Court that the Client had acted out of character and had substantially rehabilitated himself since the incidents.  As a result, the Court permitted the Client to serve his sentence OUT OF CUSTODY under house arrest so that the Client spends NO TIME in jail.

Sexual Assault – NOT GUILTY After Trial

R. v. JJA (2014 B.C. Provincial Court)

Client accused of sexually assaulting a woman in her own home after returning there from a night out of heavy drinking.  Client steadfastly denied any sexual assault, including during an interview with police upon his arrest.  After more than a week of trial, in which Vancouver Criminal Defence Lawyer Emmet J. Duncan cross-examined nine witnesses including a DNA scientist, and after leading evidence from his client as well as one other party-goer that the Crown had declined to call as a witness, the trial judge found that the Crown’s evidence was simply not reliable and that the Client was NOT GUILTY.  The case raised a number of important legal issues, including the importance and impact of the woman’s clinical therapeutic records and the effect on her evidence of certain therapies she had undergone.  Client a prominent businessperson in the community with significant cross-border business interests.  The result of this trial means that the Court has declared his innocence and he will have NO CRIMINAL RECORD.

 

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 rioter must 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.

Spousal Assault – Charges Dropped

R. v. A.O. (2013 B.C. Provincial Court)

Client involved in an alcohol-fueled argument with his long-term girlfriend.  She alleged there was a physical assault as well.  Client vehemently denied there was any physical component. Vancouver Criminal Defence Lawyer Emmet J. Duncan assisted Client in obtaining bail by including a condition not to contact the complainant.  With Mr. Duncan’s assistance Client obtained counseling services and also started to attend Alcoholics Anonymous.  Mr. Duncan then successfully negotiated with Crown counsel to drop the charges in favour of a restraining order, which simply continued the same conditions Client had been observing.  File concluded for Client with no jail and no criminal conviction as a result of this incident.