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 CRIMINAL LAW
 Criminal charges defended by Ambridge Law
Ambridge Law defends a wide range of criminal law charges. The bulk of our practice involves drunk driving / DUI, driving while prohibited / driving while suspended, drug offences (possession, trafficking, marijuana grow operations), and crimes of violence (assault, sexual assault, domestic assault, threatening, and criminal harassment). However, our law firm also deals with weapon offences, fraud, unlawful confinement, kidnapping, return of seized monies and property, fraud and other criminal code offences.
Drinking & Driving - all you need to know
Drunk driving, which means driving while your ability is affected by alcohol/drugs or your blood alcohol level is above 80 milligrams of alcohol in 100 milliliters of blood, is a crime under the Criminal Code of Canada. If convicted, you can lose your license, be fined, receive a criminal record and/or spend time in jail. Your vehicle does not even have to be moving; you can be charged if you are impaired behind the wheel, even if you have not started to drive.
You risk three serious criminal charges if you drink and drive:
- “impaired driving” (caused by alcohol or drugs – both legal prescription drugs and illegal ones)
- driving with a blood-alcohol level over 80 milligrams (called “over .08”)
- failing or refusing to provide breath or blood samples on demand (called “refusing to blow”)
The police will make a judgment about your ability to drive safely based on a number of observations, including your appearance, your answers to questions, your physical movement, and whether you or your car smells of liquor (alcohol does not have any smell). Under the law, police have the right to stop your car at any time in order to check the following:
- Whether the driver has consumed alcohol or drugs
- Whether the driver has a valid car insurance
- Whether the car is mechanically fit to be driven
The police do not have to suspect that a driver is drunk before they stop a vehicle. In fact, while stopping the car for any of the aforementioned reasons, the police can make observations regarding the signs of impairment and ask you to perform certain tests to see whether you were drinking before driving. Furthermore, the police have the right to conduct random spot check for impaired drivers and they have the right to pull any car over at a RIDE program check point.
The police have stopped you, what’s next?
Responding to police questions
Once the police have stopped you, they have the right to ask you a number of questions, including whether you have consumed any alcohol or drugs. Although you do not have to answer these questions, it is better to co-operate with the police. Refusing to respond may lead the
police to suspect you have consumed alcohol and further investigation may result in the police demanding a roadside breath-screening test. If you refuse to provide a roadside breath-screening sample, you can be charged with a serious offence under the Canadian Criminal Code.
Performing physical tests
The police may also ask you to get out of your car to perform several physical tests, such as walking in a straight line, picking up a coin, and counting backward from 10. Again, although you do not have to perform these tasks, the police may demand a breath sample if you refuse.
Giving a breath sample
If you are operating a vehicle or have care or control of it (even if it’s not moving) and the police reasonably suspect that you have alcohol in your body, they may legally require, or demand, that you immediately blow into a small machine called an approved roadside-screening device or ASD. If the police don’t do this right away, they may not be able to use your readings at trial.
Before requiring you to blow, the police do not have to tell you that you have a Charter right to call a lawyer. And you don’t have the right to speak to a lawyer before you decide whether to blow or refuse – you have to decide right away. If you refuse, you will be charged with the criminal offence of failing to provide a breath sample, which is extremely hard to defend in court.
The ASD tests for alcohol in your body, and it can show a “pass,” “warn,” or “fail.” If the ASD shows “warn”, the police have the right to suspend your driver’s license. The criminal liability legal limit is 80 milligrams of alcohol in 100 milliliters of blood, called .08, which would register a “fail” on ASD. If ASD shows “warn” or “fail”, the police have the right to demand that you take a breathalyzer test.
A breathalyzer is a machine that measures the alcohol in your breath to see if you have more than the legal limit of .08. It’s more accurate than the ASD, and is operated by a qualified technician.
If the police demand that you take a breathalyzer test, you must:
- go with the police to where the breathalyzer is located (usually, the local police station), and
- give breath samples (usually two) so your blood-alcohol level can be analyzed.
At the point of being demanded a breathalyzer test, you are considered to be legally detained. Therefore, the police must tell you of your right to a lawyer (and other Charter rights) before you give breath samples. They must also give you a chance to contact a lawyer you choose (a private lawyer or a Legal Aid Duty Counsel) before you give breath samples. The police must stop trying to get samples or other evidence from you until you have had the chance to talk with a lawyer in private.
If you are unable to give a breath sample because of your physical condition, the police may require you to let a qualified medical practitioner take samples of your blood for analysis. The medical practitioner must be satisfied that taking samples won’t harm you. You have the right to speak to a lawyer before giving a blood sample.
If you are unconscious, you can’t agree to give a sample. So the police must get a warrant to take samples, which they can get by phoning a judge.
Things you don’t have to do
You don’t have to tell the police whether you drank or how much you drank. If the police ask you to do physical tests, such as balance tests, you can refuse to do them. Later, at your trial, the court cannot use your refusal to tell how much alcohol you consumed or refusal to do a balance test as evidence to find you guilty. However, always consider co-operating with the police.
What is a reasonable excuse not to give a breath sample?
Courts are strict about what a reasonable excuse is. You may have a reasonable excuse if the police don’t let you speak to a lawyer in private before requiring you to give samples. But you must assert or claim your right to a lawyer. This means that when the police tell you your rights under the Charter, you must say you want to use, or exercise, those rights and speak to a lawyer. The legal issues are complicated and the best warning is this: if the police demand you take a breathalyzer test (not the road side breath test), talk to a lawyer before doing so (as one of the options, you can contact Ambridge Law at 416-590-1777 to get a lawyer’s advice). Then, follow the lawyer’s advice.
How does the breathalyzer work?
The breathalyzer is a machine that samples deep lung air by using infra-red light to measure the concentration of alcohol in a person’s blood. It gives the results in milligrams per 100 milliliters. If you have over 80 milligrams of alcohol in 100 milliliters of blood (called “over .08”) you are legally too drunk to drive, and can be convicted of a criminal offence.
The technician will ask you to breathe deeply into a plastic mouthpiece connected to the machine. It takes several minutes to analyze the sample. The technician will wait at least 15 minutes and then usually ask you to do it again. Then the technician will give you a certificate describing the test results. Keep it, and give it to your lawyer.
You won’t be charged with over .08 if the test results are less than 80 milligrams of alcohol. But, even with a result under 80 milligrams, or no breathalyzer test, the police can take your license and stop you from driving for at least 24 hours if they believe your ability to drive is affected by alcohol.
Do you also have to give a DNA sample if a court orders you to?
Yes. Under the DNA Identification Act, the prosecutor can ask the court to order you to give a sample of your DNA for a national database. The prosecutor needs a warrant under the Criminal Code to do this. The prosecutor would probably not do this unless you were in a serious accident while impaired or over .08.
What happens in court?
If you are charged with any of the three offences, you or your agent will have to go to court. There are many legal defences available to drinking and driving and refusing to blow charges, but they are very technical and you should get legal advice in order to get the best chances of escaping a criminal record. You should get at least some initial advice from a lawyer, even if you decide not hire one to represent you in court.
The prosecutor must prove beyond a reasonable doubt that you committed the offence. For impaired driving, the prosecutor must prove your ability to drive a motor vehicle was impaired by alcohol or a drug. The prosecutor does not have to prove you were drunk. For over .08, the prosecutor must prove your blood alcohol level was over 80 milligrams and there was no error in the reading. And for failing to blow, the prosecutor must prove that you failed to give samples – without a reasonable excuse.
The prosecutor normally calls as witnesses the police officer that stopped you, any other people who saw you, and depending on the charge, the technician. The witnesses would tell the judge how you acted, whether you refused to give samples, and what signs of impairment they noticed. Common signs of impairment include the smell of alcohol on the breath, bloodshot eyes, poor balance, or slurred speech. The technician would tell the judge how they performed the breathalyzer test and any physical symptoms they saw.
You have the right to testify (tell the court your side) and you may want to, if you can explain what the witnesses said and raise a reasonable doubt whether you were impaired. For example, perhaps you had an ear infection that affected your balance, or some physical problem that caused you to slur your speech. However, there are many dangers involved in taking the stand, because you are giving an opportunity to the prosecutor to “grill” you with their questions and make you say something that they will use against you in court. Thus, it is important to consult a lawyer as to whether you need to testify in court personally.
After the court hears your side of the story and all your witnesses, as well as the prosecutor’s side of the story and their witnesses, the court will make a decision in your case. If you are found not guilty, you will be released from custody and court right away. If you are convicted, the sentencing can occur on the same date or can be adjourned to a future date. At the sentencing, you or your lawyer will get a chance to speak to the court to try to decrease your penalty. After the sentencing, your penalty is effective immediately.
What are the penalties?
For a first offence of over .08, impaired driving, or refusing to blow, the mandatory minimum sentence is a $1,000 fine and a one-year driving prohibition. That is the usual sentence, unless the judge considers your case more serious because of aggravating facts such as high breathalyzer readings or bodily harm caused to anyone.
Previous drinking and driving convictions mean higher penalties, such as mandatory 30-day jail sentence for a second drinking and driving offence. And if you kill or injure someone by drinking and driving, you will get higher penalties and risk being sued for a lot of money. The penalty for killing someone while impaired or over .08 is always a jail term.
In addition to the criminal charge, you will also get a 90-day administrative driving prohibition, if the tests show your blood alcohol level to be above the legal limit or you refuse to give a sample of breath or blood. Important, the 90-day administrative driving prohibition may be given even if you are not found guilty of drinking and driving or refusal to blow. However, yuou can appeal an administrative driving prohibition.
A conviction will also mean you have to pay much higher vehicle insurance premiums and lose your insurance coverage.
Convicted Impaired Drivers
Individuals convicted for impaired driving offences face penalties under the Canada's Criminal Code and Ontario's Highway Traffic Act. Upon conviction, consequences include additional suspension period, alcohol education and treatment programs, Ignition Interlock Program, Vehicle Impoundment and fines.Driving-related Criminal Code convictions remain on a driver's record for at least 10 years.
One conclusion is evident from the above discussion - drinking and driving is a complicated area of law with very serious consequences. Therefore, don’t drive or even get in the vehicle if you had anything to drink. However, if you have already been charged with drinking and driving, it is best to contact a lawyer to increase your chances of not being found guilty at court.
What is Vehicle Impoundment?
See our Criminal Law FAQ page.
Can I drive home if I am charged with drinking and driving offense on a road-side?
See our Criminal Law FAQ page.
What happens if my licence is suspended?
See our Criminal Law FAQ page.
What happens after the suspension period expires?
See our Criminal Law FAQ page.
What does the Ignition Interlock Condition Mean?
See our Criminal Law FAQ page.
What is the Alcohol Education and Treatment program?
See our Criminal Law FAQ page.
What does it cost you to drink and drive?
See our Criminal Law FAQ page.
What are your rights under the Criminal Law
When we speak of Rights in the context of Criminal Law, what concerns us is the relationship individuals have with the government, the police and the justice system. Some of our Rights exist because of tradition. Many are written into law in the Canadian Charter of Rights and Freedoms.
Right to be Presumed Innocent
Although the concept of the presumption of innocence is to be respected throughout a criminal investigation and prosecution, the practical effect of the Right to be Presumed Innocent has its greatest impact at the trial phase. Simply put, if a reasonable doubt is before the court at the trial, an accused cannot be convicted because they are presumed innocent unless shown guilty beyond a reasonable doubt.
Right to be Promptly Informed of the Reason for Detention / Arrest
If there are reasonable grounds to suspect a person is connected to a particular crime and the detention is reasonably necessary, the police may detain an individual for further investigation, provided the detention is necessary to the performance of the officer’s duty. The police must inform individuals upon detention of the reasons for their detention in clear and simple language. An investigative detention must be brief and not become a de facto arrest.
Right to Silence
The Right to Silence in Canadian Law is a principle of fundamental justice guaranteed by section 7 of the Charter of Rights. The purpose is to allow an accused to make meaningful choices about whether to speak or remain silent. Anything said may find its way before the court as evidence. The rules of evidence are such that statements favorable to the accused in a criminal trial rarely find their way before the court, but incriminating or ambiguous statements often end up before the court, even when unlawfully obtained. It is important, therefore, to rely on the Right to Silence until you have met with your Criminal Lawyer and obtained Legal Advice.
In Canadian Law your silence cannot be used to prejudice you because of the protection provided by the Right to Silence. No presumptions can be made against a defendant because they remained silent. It is noteworthy that this is not the case in England, where failure to promptly explain oneself can be used to undermine an explanation offered later on. In a limited sense, this can apply in Canada when the accused wishes to rely on an alibi.
Right to a Lawyer
The Charter of Rights guarantees a suspect’s right to obtain and instruct counsel, i.e. a lawyer, without delay. The police or investigating agency must inform the accused of this right without delay. What this means is that the police must tell a suspect that they are allowed to contact a lawyer and be represented by a lawyer. Once a person has indicated that they wish to obtain legal advice, the police have a duty to hold off from questioning or attempting to secure evidence that would involve the assistance of the accused until the accused has had a meaningful opportunity to access legal advice.
The Right to Counsel is one of the most important rights in Canadian Criminal Law because it guarantees that individuals under arrest or detention can have the opportunity to have matters explained to them by a Criminal Lawyer, including an explanation of their options and how to protect themselves from the police. An experienced Criminal Lawyer can provide valuable legal advice that, if followed, will usually help their case. A lawyer can explain what your rights are in the circumstances, and advise you on how to best protect yourself.
There are limits on the Right to an lawyer. For example, if a police officer makes a lawful demand under section 254(2) of the Criminal Code to test for the presence of alcohol using an ASD (Approved Screening Device) the suspected drinking driver is not permitted to contact a lawyer before providing a sample. Nor is the investigating officer required to inform the individual of this right before demanding and obtaining the sample. If, however, the officer tells the person of their right to a lawyer, the right may immediately be engaged.
Right to be Secure against Unreasonable Search and Seizure
Everyone in Canada is guaranteed not to be subject to a search or seizure unless it is done in accordance with Canadian Law. "Unreasonable" means without a justifiable reason, but the police need more than a reason to search – they need lawful authority to search. In the case of a home, this is usually in the form of a search warrant that gives the police the legal right to enter and search a specific home for a fixed period. With respect to compelling someone to provide a sample of their breath, the lawful authority comes from provisions of the Criminal Code which, if met, permit the police to compel an individual to provide samples of their breath.
If a search is unreasonable, a defendant can apply to the court for a remedy. The usual remedy is for exclusion of the evidence that flows from the violation of this right. Our Canadian Courts have been firm in their approach when this right has been clearly violated, often dismissing charges after ruling the evidence inadmissible. The difficulty is that the courts have been less than courageous in finding that the police action constituted a violation of this right.
The Right to Drive
Is driving a privilege or a right? Driving is a right as is the right to hold a driver’s licence. Like all rights, however, there are restrictions and limits. The Right to Drive is limited in that the government may specify qualifications that must be met by potential drivers, including that they maintain a respectable driving record.
If, however, a driver meets all of the requirements to obtain a licence, the government cannot restrict that person’s right to obtain a driver’s licence and drive. In such a case, the person’s lawyer can apply to the court to get an order forcing the government to give them a driver’s licence.
Right to a Fair Trial
This is codified in section 11(d) of the Charter of Rights and it is a principle of fundamental justice under section 7. Fairness, however, is limited to a trial that follows acceptable procedure. Where the procedures themselves lead to unfair results, it becomes clear that this right is often illusory.
What happens to your criminal case in the court system
A person alleged to have committed a criminal offence may be served with a document directing his appearance before the court. In circumstances where a person has not been arrested and taken into custody by the police, he will receive a summons or an appearance notice.
If he has been arrested and taken into custody, he may be released prior to an actual court appearance by means of a promise to appear, or by a recognizance. The person may also be required to provide an undertaking to abide by certain conditions before he will be released. Examples of some of the more common conditions are such things as remaining within the jurisdiction of the court, reporting to a bail supervisor, abstaining from contacting a named individual, etc.
Each of the documents referred to above will set out the intended charge as well as the location, date and time of the initial court appearance. They may also direct an attendance pursuant to the Identification of Criminals Act for fingerprinting and photographs prior to the initial court appearance. They will also set out the consequences of failing to appear for court or fingerprinting. If a person fails to attend as directed, a warrant could be issued for his arrest to bring him before the court. There is also provision in the Criminal Code for the person to be charged with a separate offence of failing to appear.
Of course there are circumstances where an individual arrested and detained by the police will not be released prior to an actual court appearance before a judge, who will make a decision whether he will be released and if so, whether there will be conditions attached to the release. Some of the factors that could lead to a person having to appear before a judge to seek his release would be if he was facing a serious criminal charge, had a criminal record, had failed to appear in court on a prior occasion, had breached previous bail conditions, was resident outside of the jurisdiction, etc. An in depth discussion of bail or judicial interim release, as it is referred to in the Criminal Code, is not within the scope of this article.
Assuming that a person is not in custody, his initial court appearance will usually be in a small courtroom or initial appearance room before a justice of the peace. The accused person will usually be presented with “disclosure” at this appearance which consists of documentation including a police report setting out the particulars of the charge. Usually there will also be a document setting out the position of Crown Counsel (the prosecutor) on sentence in the event of an early guilty plea. The Justice of the Peace will inquire whether the person charged wishes to consult a lawyer if he has not already done so and usually the case is adjourned for a week or two for this purpose. Occasionally a person may wish to deal with the matter himself without being represented by a lawyer and if so the case is adjourned to another courtroom for either a guilty plea or to arrange a date for trial.
If the individual wishes to receive legal advice prior to the next court appearance, he will take the disclosure documentation to a lawyer who will review it and interview the person about his background and the circumstances leading up to the alleged offence. The lawyer will then usually be in a position to offer the person advice on the different options available to the accused for dealing with his case in court. During this meeting the lawyer will usually be in a position to provide the person with information regarding the cost of legal representation.
Although the lawyer may provide an initial consultation free of charge or for a nominal fee, he will usually require a retainer (partial payment of his fee) prior to attending court for the client. Lawyers generally charge fixed fees for criminal matters with complex cases being more expensive than routine matters. If the Client meets certain financial criteria, he may be eligible for legal aid and can make application for coverage prior to his first court appearance or at the courthouse on the day of his attendance.
After a person has retained a lawyer or has decided to represent himself, the next court appearance will be an arraignment hearing. During this court appearance, it will be determined if the accused intends to plead guilty to the offence or whether there will be a trial. If the matter is to proceed to trial, it will be necessary to discuss other matters, the most important of which is the time estimate for the trial so that sufficient court time can be set aside. For certain charges there is the option to have the trial in Supreme Court instead of Provincial Court. The judge at the arraignment hearing will usually want an election from the accused as to his mode of trial. If the trial is to be in Supreme Court, a preliminary inquiry will take place in Provincial Court, in order to determine if there is sufficient evidence for the accused to actually stand trial.
At the conclusion of the arraignment hearing, a date will be scheduled by a trial coordinator for the trial or preliminary inquiry, which will likely be many months in the future because of the busy court schedule. About a month prior to the trial or preliminary inquiry, there is yet another appearance required which is referred to as a trial confirmation hearing. The purpose of this appearance is to ensure that the trial or preliminary hearing will be proceeding on the scheduled date and to determine if the time estimate is still accurate.
These are the usual steps taken from the initial appearance to final disposition of the charge in the court.
Explanation of most common criminal offences
*** Please be advised that the following definitions and information are not comprehensive legal definitions. Rather, they are designed to provide a brief, general, and basic description / understanding of some of the most common criminal charges. As with all criminal charges, the defenses available at law will vary depending on the individual circumstances of each case. As such, the content of this website is not legal advice. Do not use or otherwise rely on, any of the following content without first seeking proper legal advice.***
DRUNK DRIVING / DRUNK DRIVING ACCIDENT / OVER .08 / REFUSAL:
The criminal charge of drunk driving involves operating a motor vehicle, while having the care or control over that vehicle, while one's ability to operate that vehicle is impaired by alcohol, or a drug. If subsequently taken to a police detachment, a qualified technician will take samples of the Accused's breath into a breathalyzer machine (in order to determine the level of milligrams of alcohol, per 100 milliliters of blood). The charge of over .08 is usually added if the Accused's breath sample registers over the legal allowable limit of .08. A charge of refusal will result if the Accused refuses to either provide a sample of their breath at roadside (into an Approved Screening Device), or refuses to provide a sample of their breath at the police detachment into the breathalyzer machine.
Charges of drunk driving / over .08 / DUI and refusal are extremely technical and require police officers and breath technicians to obey strict rules and procedures, such that even if the police conduct the investigation properly, the roadside screening device and/or the breath machine can be wrong, and there are a variety of ways to challenge their accuracy, as well as one's refusal. Police officers are also required to satisfy certain Charter obligations to an Accused. Because of this, there are many defenses available to challenge the evidence - often resulting in exclusion of the breath certificate.
Defending Impaired Driving Charges
In court the prosecution must prove beyond a reasonable doubt that the driver’s ability to operate a motor vehicle was impaired. Testimony of police officers and civilian witnesses is presented to establish that the driver’s ability to drive was impaired.
A proper defence emphasizes inconsistencies in witness testimony, unreliability of evidence and the fact that many of the observations made by the witness may be consistent with the behaviour of a driver who is not impaired in their ability to drive.
Potential defences:
Bad Driving:
Although evidence of a bad driving such as swerving, weaving or committing traffic violations may indicate possible impairment, driving such as this takes place on our roads every day with drivers who are not impaired by alcohol consumption.
Odour of Alcohol Beverage:
Actual alcohol has no smell and it is only the flavoring of the drink that produces the odour. The scientific consensus is that an odour of alcohol beverage provides no indication of how much alcohol was consumed. Consequently the police cannot reliably estimate how much alcohol a person has consumed or when the drinks were consumed by smelling the person’s breath or clothes.
Balance Problems:
The police often fail to properly record the type of shoes worn, the road surface or whether the driver has health problems. A deficiency in the evidence can lead to the conclusion that there may be other possible explanations for balance problems aside from alcohol impairment.
Slurred Speech:
Normally the officer has not heard the driver speak prior to the incident and therefore they cannot confirm whether the driver’s speech is affected by alcohol.
"Fail" on an ASD:
A “Fail” result on an Approved Screening Device or Roadside Breath Tester is not admissible in court to prove a driver was impaired. It is also not admissible to corroborate the results of a BAC Datamaster.
Over .08 Charge
The Approved Screening Device:
A government approved screening device is used by Police to obtain breath samples to determine the concentration of alcohol in the person’s blood. There are a number of approved screening devices. In order to be considered reliable, the approved screening device must be operated in accordance with the provisions of the Criminal Code and the operational procedures for the instrument. Although, these are generally reliable machines, there are numerous ways that they can malfunction.
Typical Approved Screening Device Malfunctions:
- Calibration Error - The internal standard is flawed and the results are unreliable.
- Detector Overflow - The instrument has recorded a result in excess of certain limit of alcohol in 100 milligrams of blood indicating mouth alcohol.
- Invalid Sample - Mouth alcohol may have affected the sample and the results are unreliable.
- Interference Detected - The instrument has detected something other than alcohol rendering the results unreliable.
- Pump Error - The breath tube is obstructed and the results are unreliable.
Every electro-mechanical device can malfunction. A complex device, such as an approved screening device, contains switches, valves, a pump and a micro-microprocessor, any of which may fail or malfunction without warning. An experienced criminal defence lawyer will know which potential malfunction might have resulted in excess of alcohol in blood over the allowed limit.
DRUG OFFENCES (POSSESSION / TRAFFICKING):
This charge relates to an Accused being in possession of illegal substances such as marijuana, cocaine, crystal meth, or ecstasy. In order to prove possession, the Crown must prove that the Accused had both knowledge and control over the substance. The charge of trafficking results if the Accused does any of the following: sells, administers, gives, transfers, transports, sends or delivers the controlled substance in question.
PRODUCTION (grow op):
This charge involves the production of any drug listed in Schedule I - IV of the Controlled Drugs and Substances Act. These offences most often relate to what is commonly referred to as a meth lab or marijuana "grow op".
Most production offences involving a "meth lab" or "grow op" for instance, usually involve the issuance of a search warrant (the legal basis upon which the Police enter one's residence, etc.). Obtaining and executing these warrants is a technical process and errors by police can result in successful challenges - leading to the exclusion of evidence.
RETURN OF SEIZED MONEY / PROPERTY:
This definition is most often related to drug offences. When police investigate and monies and/or property are found in the vicinity of drugs (such as in a residence), or used to transport drugs (such as in a car), that money and/or property is usually seized by police. The police will seek to hold these items as part of their investigation until such time as it can be determined whether they are related to the offence(s) being charged, and/or are needed for trial, and/or preliminary hearing. Generally speaking, the police will try to hold the money and/or property for 90 days. At the conclusion of that time, the police and/or the Crown must apply to hold it for a longer period. These efforts by Police and/or Crown can be challenged, and when the challenge is successful, the money and/or property are returned.
CRIMES OF VIOLENCE (assault - all types):
In its barest form, an assault can be construed as an unwanted touching; in other words, touching without consent. The two most common defenses to the charge of assault are, consent and self-defense. Self-defense is extremely technical and is often successfully invoked in not only simple assaults, but also assault with a weapon, assault causing bodily harm, aggravated assault, and murder.
DOMESTIC VIOLENCE (seeking an 810 Peace Bond):
Often referred to as a "spousal assault", there is no specific Criminal Code provision dealing with this charge. Rather, one is charged with the offence of assault, assault causing bodily harm (or whatever the level of assault that allegedly occurred). These matters often involve a "he said / she said" disagreement regarding the facts. In many of these cases, Defense counsel can negotiate with the Crown to drop the assault charge in return for the Client agreeing to a type of restraining order, called a "recognizance" (or 810 peace bond) - it means that the Client avoids a criminal record.
SEXUAL ASSAULT:
In essence, sexual assault involves an unwanted touching of a sexual nature. The two most common defenses to such a charge are, denial of the incident, or consent (by the complainant), to the alleged sexual act.
There are many defenses to such a charge, including denial, consent, and mistaken belief in consent. These defenses are technical in nature and often require delicate but nevertheless effective handling of complainant(s), some of whom can be young or otherwise vulnerable.
CRIMINAL HARASSMENT:
This charge can be laid by the Crown if any of the following acts are carried out by an Accused: repeatedly following a person from place to place; repeatedly communicating with a person (directly or indirectly); watching the home or place of employment where a person resides, works, or happens to be; or engaging in threatening conduct directed at the other person, or any member of his/her family. The Accused must be shown to know that the person is being harassed, or was reckless as to whether the person is being harassed. The person must reasonably, in all the circumstances, be caused to fear for his/her safety, or the safety of anyone known to him/her. This offence is often challenging for the Crown to prove, and there are a variety of defenses available. A common resolution is for Defense counsel to negotiate with the Crown for an 810 peace bond (see above re: domestic violence ).
THREATENING:
A charge of threatening involves a threat (verbal or otherwise), to cause death or bodily harm to any person; to burn, destroy or damage real or personal property; or to kill, poison, or injure an animal or bird that is the property of any person.
The two most common defenses are a denial of the threat, and a denial of any intention to menace, intimidate or cause fear to the recipient.
KIDNAPPING / UNLAWFUL CONFINEMENT:
This offence occurs when an Accused kidnaps a person with intent to cause the person to be confined or imprisoned against the person's will; to cause the person to be unlawfully sent or transported out of Canada against the person's will; or to hold the person for ransom or to service against the person's will. Forcible confinement charges involve an Accused person who, without lawful authority, confines, imprisons, or forcibly seizes another person.
These are extremely serious charges and are usually hard fought cases as the Crown will often seek a lengthy sentence. Defenses to such charges are varied, and having skilled and experienced counsel is vital.
EXTORTION:
An Accused commits the offence of extortion when he intends to obtain anything (by threats, accusations, menaces or violence), induces or attempts to induce any person (whether or not he is the person threatened, accused or menaced or to whom violence is shown), to do anything, or cause anything to be done.
WEAPON & FIREARM OFFENCES:
These offences relate to both weapons (such as brass knuckles or illegal knives - such as a switchblade), and firearms / guns. If a loaded firearm is used during the commission of an offence, a minimum period of custody will follow should one be convicted. Although there are defenses to such offences, one must be diligent to ensure that he is in possession of, where appropriate, the proper license(s) that correspond(s) to any weapon or firearm.
FRAUD / IDENTITY THEFT:
This offence involves an Accused who defrauds any person, or the public, of any property, money, valuable security or service. One is charged with committing the offence of fraud as either being "under $5000" or "over $5000". In order to prove a charge of fraud, the Crown must demonstrate that the Accused had subjective knowledge of the prohibited act, and, that performance of that act could have as a consequence, the deprivation of another. Identity theft relates to the fraudulent use of another's identity for fraudulent purpose(s). Such offences can be difficult for the Crown to prove and require defense counsel who have dealt with such files, and are both skilled and knowledgeable.
PROPERTY CRIMES:
These charges generally involve theft, possession of stolen property, mischief, break and enter, and robbery.
Theft - taking with intent anything (animate or inanimate), which is not one's own - this can be temporarily or absolutely.
Possession of Stolen Property - being in possession of any property or thing (having the knowledge and control over the item in question), which an Accused does not have the permission of the owner.
Mischief - occurs when an Accused destroys or damages property; renders property useless or inoperative; interferes with the lawful use, enjoyment, or operation of property; or interferes with any person in the lawful use, enjoyment, or operation of property.
Break & Enter - takes effect when an Accused breaks and enters into a place and attempts, or does commit, an indictable offence therein. Note: if the person breaks into a residence (as opposed to a commercial facility), there is a maximum penalty of life imprisonment.
Robbery - this offence involves theft (actual or attempted), with violence. Note: if a firearm is used in the commission of this offence, the Accused faces a minimum punishment of 4 years.
DRIVING WHILE PROHIBITED:
This criminal charge involves driving a vehicle when that person has been prohibited from doing so, either by the Superintendent of Motor Vehicles, or the Court. In order to prove this offence, the Crown must prove that the person charged knew of the prohibition; that the prohibition was in effect the entire day of the offence date; and that the person prohibited, was driving. Such offences are quite technical to prove and afford many defenses.
DRIVING WITHOUT DUE CARE & ATTENTION:
This offence is charged under the Motor Vehicle Act (s.144). It generally relates to one's manner of driving under the circumstances as they existed at the time of the offence. It is a strict liability offence. The Crown need only prove that the Accused committed the prohibited act; the Accused must then demonstrate that the act / manner of driving was done without negligence or fault on his part. These cases can also be technical in nature and also provide many defenses depending on the driver's subjective knowledge and action(s) at the relevant time.
DANGEROUS DRIVING:
This offence can be described as driving in a manner that is considered to be a marked departure from the standard of care that a reasonable person would observe in the Accused's situation. Similarly to the above, defenses relate to one's subjective knowledge and action(s) at the time.
Criminal Record - How do you get it, how does it affect your life, and how do you get rid of it?
What is a criminal record?
A person charged with an offence pursuant to certain federal statutes or regulations (usually the Criminal Code or the Controlled Drugs and Substances Act) faces the possibility of a criminal record if convicted of the offence. This article is a brief discussion of how charges may be dealt with to avoid a criminal record for the person charged. Not all dealings with the police result in a criminal record. For example, if the police give you a parking ticket, this is an offence under a municipal by-law and is not considered criminal. If you are charged with a provincial driving offence, such as making an improper lane change, this is an offence under provincial traffic legislation and is not criminal.
For a criminal record to exist you must have been a suspect in a criminal investigation and the police must have at least questioned you. In
such a case your name and date of birth will be on file with the police. This type of file is called an incident report, and it will be automatically destroyed after a period of about five years, provided that you do not have any more involvement with crime.
Even if you were not found guilty or if the charges were withdrawn, acquitted, stayed, dismissed, or resulted in a diversion or a peace bond, there is a police record of your arrest, a court record of your trial, and an RCMP record, which includes your photograph and fingerprints.
Once you get a criminal record, it is quite hard to get rid of it and it may affect many areas of your life.
How can a criminal record affect your employment?
Having a criminal record even in cases where me charges we re withdrawn or you were acquitted can negatively affect your search for employment. A criminal record can also be all obstacle when:
• Seeking a new job or promotion
• Obtaining contracts if you are self-employed
• Getting bonded
• Obtaining a license
Jobs and promotions:
Many employer and licensing boards are now conducting mandatory police clearance searches before hiring individuals or allowing applicants into training programs. By signing an application form or an employment agreement you may be giving permission for a criminal record search to be conducted.
Companies that never before required criminal record searches are now doing so, hindering people who apply for internal promotions. Discovery of a criminal record may not only prevent an employee’s opportunity for career advancement within the company, but it may also lead to a person being fired. In many cases, such as government offices and school boards, financial and insurance institutions, employers conduct police clearance searches on existing employees. Such searches have led to job terminations, even in cases where the employees have been employed for several years.
Self-employment:
People who are self-employed are not immune to criminal record searches. Many companies that sub-contract work to individuals or to businesses now require criminal record searches on the independent contractor or the owners of the business. This is especially true in situations where the independent contractor will have access to confidential information or will be working with vulnerable people, such as children. Computer programmers, bookkeepers, and nannies are part of just three career fields where criminal record searches are required.
Gelling bonded
Regarding jobs where bonding is required: it is often too expensive for employers to bond employees who have criminal records. Being bonded means that the employer is paying for insurance against the risk of employees committing crimes such as theft or fraud. If you have a criminal record, the insurance company will charge your employer a premium and your employer may not be able or willing to pay the added cost. As a result, you might not be hired.
Obtaining a license
If you wish to apply for a job or become licensed in a particular industry, it is best to have your criminal record removed before submitting your
application.
How does a criminal record affect immigration to Canada?
A criminal record will negatively affect your ability to immigrate to Canada or remain here. Criminal records will have a different impact depending on whether the individual is a visitor a refugee or a permanent resident. It is illegal to visit Canada if you have a criminal record, unless you have proper immigration status, such as Canadian citizenship or you have acquired special permission from Citizenship and Immigration Canada. If you have a Canadian criminal record, it is best to have it pardoned or destroyed before attempting to enter Canada again. If you have a criminal record from a country other than Canada, you will need to apply for advance permission.
People who were granted permission to enter and be in Canada before they were charged with criminal offences may have their status removed and may be deported from Canada.
Refugees with criminal records can have their status removed and may be deported from Canada. If you have applied to be a permanent resident, your application can be denied. At the very least, the discovery of any kind of criminal record, even where there was no finding of guilt, will result in complications with the immigration application. If your application is part of a family application for permanent residence, the
discovery of your record may put every family member's application on hold and may result in the entire family being deported. If you are a permanent resident, a criminal record can result in your landing status being removed and you being deported. If you have applied for Canadian citizenship, your application can be denied or put on hold. At the very least, discovery of a criminal record will result in
complications with your citizenship application. If you wish to apply for permanent resident status or Canadian citizenship, it is best co have your criminal record removed before submitting your application.
How does a criminal record affect USA travel and work?
It is illegal to attempt to enter the United Stares if you have a criminal record, unless you have appropriate immigration status or you have advance permission, called an entry waiver, from the U.S. Immigration Office.
In the past, you may have often passed through U.S. Immigration after answering a few standard questions about your citizenship and the purpose of your visit. It is becoming increasingly common, however, for U.S. Immigration to ask for some identification for the purpose: of conducting an RCMP criminal record search. As they are continuelyenhancing their technology, it now only takes U.S. immigration seconds to conduct a record search. Once you get identified, the immigration officer will download your criminal record into the U.S. Immigration computer system and, as a result, your criminal record will be on file with U.S. Immigration, Department of Homeland Security (DHS). You may also be denied entry to the United States.
After having been denied entry to the U.S., to legally enter at some later date, you will require an entry waiver. There are a number of documents that will be required. Also, there are different types of applications depending on what crime you were charged with and whether you are a Canadian citizen. Having your criminal record sealed or destroyed in Canada may prevent U.S. Immigration from being able to find the information, unless, of course, you have already been caught at the U.S. border. For more information and assistance in acquiring a U.S. entry waiver, log onto the Department of Homeland Security at www.dhs.gov or to www.pardonscanada.ca.
How do you get rid of a criminal record?
Contrary to what most people believe, criminal records are not automatically destroyed or sealed. Instead, you must lake active steps to ensure that a criminal record is completely sealed or destroyed . If you were convicted of an offence, you must apply to have your record pardoned, which means it will be sealed and removed from the main repository of RCMP records, from the police station and courthouse.
First of all, if a charge is dismissed at trial or if Crown Counsel (the Prosecutor) decides at some time prior to trial to enter a stay of proceedings (withdraw the charge), there of course will be no criminal record resulting from the charge. In such cases an application can also be made to the police force involved in the investigation of the alleged offence for destruction of the fingerprints and photographs taken by the police pursuant to the Identification of Criminals Act.
There is also provision in the Criminal Code for Alternative Measures, also referred to as diversion. If an accused person qualifies for the Alternative Measures program and then completes all conditions imposed by the program, Crown Counsel will enter a stay of proceedings of the charge, which means that there will be no criminal record.
In order to qualify for the program, an individual must meet certain conditions, the most important of which is that he must accept responsibility for his actions resulting in the criminal charge. In other words, he must agree that he committed the offence with which he is charged. If he does not, the case is dealt with in court in the usual manner. Alternative Measures may only be used if it is not inconsistent with the protection of society. Persons charged with certain offences are not eligible for the program. Generally, a first time offender charged with a minor, non violent crime would be an excellent candidate for diversion.
If a person qualifies for the Alternative Measures Program, which is administered by Crown Counsel and the Corrections Branch, his case is adjourned by the Court for a period of time to enable him to complete certain conditions deemed appropriate for his case. Some of the more usual conditions are performing community work service, counseling and treatment for alcohol and/or substance abuse, counseling for anger management, a letter of apology to the victim of the crime, etc. Crown Counsel will often initiate the diversion process, but if it does not, a lawyer will often be successful in having his Client’s case eligibility reviewed if it fits within the guidelines.
If a person does not qualify for Alternative Measures, his case will be dealt with by the court. However, he may be successful in obtaining an absolute or conditional discharge if he pleads guilty or is found guilty of an offence which does not have a minimum sentence or is punishable by imprisonment for less than fourteen years. The Court must also be convinced that not only would the discharge be in the best interests of the accused, but it must also not be contrary to the public interest.
If the Court is of the opinion that a discharge is appropriate, it will, instead of convicting the accused, direct that he be discharged absolutely or on conditions set out in a probation order. An absolute discharge takes effect immediately and the accused is not considered convicted of the offence and therefore does not have a criminal record. The more usual scenario is a conditional discharge where the individual is placed on probation for a period of time with conditions to be met, and the discharge does not become absolute until the completion of the probation.
However, even if you were found not guilty, once you have been accused and charged with a criminal offence, a record of this will exist and you must complete paperwork to have your record destroyed or sealed. It will not go away by itself.
After being charged and fingerprinted, the police and the RCMP will assign a fingerprint number (FPS #) to your name and date of birth before you even go to court. If you were found not guilty, or you were found guilty but nor convicted, you may apply to have all the related police, court, and RCMP paperwork, including all photographs and fingerprints, completely destroyed. Eligibility periods range from no waiting period for withdrawn, dismissed or acquitted to one year for absolute discharges, and three years for conditional discharges. These waiting periods begin as of your final court date.
If a person is convicted of an offence which results in a criminal record, he may apply to the National Parole Board for a pardon. An application for pardon will not be considered by the Board until after 5 years from the completion of a sentence for an indictable offence or until after 3 years from the completion of a sentence in the case of a summary conviction offence.The Board will carry out an investigation after receiving the application. In order to obtain a pardon the applicant must be of "good conduct" and must not have been convicted of another offence contrary to a federal statute or regulations. If a pardon is granted the record of his conviction will be sealed and he will no longer be considered to have a criminal record.
For more information about removing a criminal record, contact the National Parole Board is 1-800-874-2652, www.npb-cnlc.gc.ca; and Pardons Canada at 416-929-6011, www.pardonscanada.ca.
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