Sexual Assault

For a sexual assault lawyer, the Courts today present a challenging array of cases.

Consequences of Sexual Assault Conviction

It’s not a secret that sexual offenses are considered most heinous and shameful. A person convicted of such offenses now faces not only potential long prison term but is also required to register in the sexual offender registry. If you are charged with sexual assault or other sexually based offenses, you need an experienced sexual assault lawyer to represent you since the consequences of a conviction are ever so grave and can affect not only your immediate well-being but also can ruin your future.

Can I Successfully Defend Against This Charge?

With the advent of DNA testing, many think that once your DNA is found on the alleged victim, your case is done, i.e., you have no chance of success. This is incorrect. First, there may be many innocent reasons why one person’s DNA ends up on the other. Secondly, the DNA evidence may be subject to constitutional challenge, i.e., if it was obtained in violation of the accused’s rights guaranteed by the Charter of Rights and Freedoms, such evidence may be excluded from the trial. As an experienced sexual assault lawyer, I will carefully review your case and advance all possible defenses including those which either explain the presence of physical evidence or lead to its exclusion.

Furthermore, the fact of sexual interaction does not inevitably lead to finding guilt of sexual assault. Remember that it is only a crime if sexual contact occurs without the alleged victim’s consent. Even where no actual consent is given, the accused may honestly and reasonably, though mistakenly, believe in its existence which still should result in an acquittal. The experienced sexual assault lawyer will present relevant evidence which, depending on the particular facts of the case, can establish either existence of consent or the accused’s reasonable belief in it.

Most cases, however, turn on the credibility and reliability of the alleged victim, and here the expertise of your sexual assault lawyer is especially important. Cross-examination of the prosecution’s witnesses may reveal numerous inconsistencies, implausibilities, and sometimes outright lies. I had cases where I had to cross-examine the alleged victims of sexual assault for several days, confronted them with their previous inconsistent statements made to the police, their prior evidence was given at the preliminary hearing or things posted on social media and demonstrated to the Court that their evidence deserves no credit.

When dealing with the allegations of sexual assault, it is very important to find out the reason why the alleged victims may not be correct or truthful in their testimony. In some cases, it may be an issue of mistaken identification, in others, the sinister motive for fabricating evidence can be uncovered. You have to remember that as any human being, a judge necessarily asks him or herself this question: why would the alleged victim voluntarily subject herself to the investigation process followed by trial including grilling cross-examination by defense counsel if no sexual assault actually happened? As an experienced sexual assault lawyer, I will thoroughly go through all possible ways to persuade the Court that the alleged victim’s evidence in your case cannot be relied upon to support a conviction.

Separation Agreement

The truth of the matter is that you don’t necessarily have to end up in court if your marriage or common-law relationship did not work out.

Don’t We Have to Fo to Court to Get Divorced?

There is only one thing in any divorce proceeding which only the court can give you and that is the divorce itself. However, all other issues which must be addressed before the divorce is granted, such as custody of and access to the children, child and spousal support, and equalization of property, can be dealt with by way of the separation agreement. If the parties enter into the separation agreement, their divorce proceeds on an uncontested basis and although it is granted by the court, no trial (or even the actual court appearance) is necessary, everything is done by paper.

In the case of a common-law relationship, the separation agreement can resolve all issues and no court proceeding is required at all.

What Is the Advantage of Separation Agreement?

Normally, the cost of preparation and negotiation of the separation agreement is significantly lower than any contested divorce proceeding. And if you add to that the hostility and stress which usually accompanies such contested divorce cases, the benefits of resolving issues by way of separation agreement become even more obvious.

Of course, it is not in every case that the spouses are able to work out an agreement satisfactory to both of them and certain situations require the court’s intervention, however, it never hurts to try an amicable resolution which saves time, money, and preserves your sanity.

The separation agreements also have the advantage of a flexible and customized approach to any given family’s particular and unique circumstances as opposed to a decision of the judge which is imposed upon the parties and often makes neither of them happy.

Can We Write There Whatever We Want?

It is important to remember that although the separation agreement is a compromise between the parties and usually does not represent the best result one of them would get in court, some provisions are simply unenforceable and should not even be included in the separation agreement. For instance, while your spouse can agree to waive her rights to spousal support, under the law she cannot waive the child support in the separation agreement or otherwise. So if a clause waiving child support somehow makes its way in your separation agreement, you should not feel yourself outrageously lucky and victorious since such clause is unenforceable. Instead, you should probably stop using the services of the lawyer who represented you in the case.

What Should Se Write There Then?

A separation agreement should set the child support obligations of the child support payor based on his or her income and the Child Support Guidelines. Such agreement should address the issue of custody of the children. It can also provide for an orderly access schedule giving certainty and predictability of visitations to the children and parents alike. Alternatively, it can provide for generous and liberal access which essentially means that the parent who does not live with the children can visit them at any time convenient to everyone involved. The separation agreement can contain the waiver of spousal support or set the quantum and duration of spousal support payments. It should also provide for division of property which can be divided in kind (i.e., you get the house and I get the cottage) or in some other way (for example, let’s sell everything and divide the money 50/50).

Basic Requirements

It is very important for the validity of any separation agreement that both spouses exchange full financial disclosure. In other words, if one spouse is not fully aware of the true financial situation of the other, such spouse can successfully challenge the validity of the separation agreement and if the court sets aside the agreement, then the matrimonial issues will be determined by the application of general family law principles.

Also, each party to the separation agreement normally should receive independent legal advice prior to signing it. This means that one lawyer cannot represent both sides of the separation agreement. Typically, one of the spouses retains a lawyer who prepares the separation agreement, then it is provided to the second spouse who reviews it with his or her own lawyer and, if satisfied with its contents, signs the agreement.

The task of any lawyer providing independent legal advice is to explain to the client the law, the provisions of the separation agreement, and how they alter the otherwise applicable legal rules, nature and consequences of the agreement and to ensure that the client fully understands the agreement and is entering into it voluntarily.

What If My Spouse Does Not Speak English?

An issue that often accompanies independent legal advice is the language in which such advice is provided. If your spouse does not speak English, receiving independent legal advice in English will obviously have no value to him or her and will detriment your interests since the separation agreement can be set aside on the grounds that your spouse simply did not understand what he or she was signing. Therefore, it is most preferable that the lawyer providing independent legal advice speaks the client’s language and is able to directly communicate with the client rather than rely on interpreters. For example, I often provide independent legal advice to people in Russian and Hebrew.

What If My Spouse Is Too Cheap to Get Legal Advice?

In some cases, however, one of the parties may refuse to spend money on independent legal advice. In such situations, a proper waiver of independent legal advice must be included in the separation agreement to avoid a future claim of the type “I did not know what I was signing”.

Refusal to Provide Breath Sample

Under the simplistic understanding of the law, any person who fails or refuses to provide a breath sample in response to the police officer’s demand without reasonable excuse is guilty of an offense…, or so it seems.

Types of Breath Tests

First of all, there are two types of breath tests that a motorist may be required to provide. First is a roadside test which occurs when the officer does not have grounds to arrest you for impaired driving but nonetheless believes that you have alcohol in your body. This test is provided into an approved screening device and if the result is “fail”, the officer will charge you with the offense of ’80 Over and take you into custody so that further breath samples can be supplied into an approved instrument which will determine the actual concentration of alcohol in your blood. This is the second type of breath test. If the officer arrests you for impaired driving, the first type of test will not be required and you will be taken to the police station or mobile unit for the second type of test.

If you do not provide breath samples either into an approved screening device or into an approved instrument, you will be charged with refusal to provide a breath sample. The refusal to provide a breath sample may be manifested in words (i.e. “I am not going to blow” or something like that) or inactions (i.e. by feigning the efforts to provide a proper sample).

Sanctions For Refusal

The sanctions for refusal to provide breath samples were recently made more severe than those for impaired driving or ’80 over specifically to discourage people from refusing to provide such samples.

Can You Defend Me? How?

That is where my job begins in defending you against this charge.

The breath tests must be administered in accordance with a specific legislative scheme and certain requirements have to be satisfied in order for the breath sample demand to be valid. Each fact scenario must be carefully scrutinized by an experienced impaired driving lawyer for possible violations of the requirements of the Criminal Code and/or the Charter.

For example, prior to demanding a breath sample into an approved screening device, an officer must have reasonable suspicion that you operated or had care or control of the motor vehicle and have alcohol in your body unless the officer has a roadside screening device readily available to him in which case, thanks to the new legislation, the officer can test you even without such a suspicion. However, if the officer does not have a roadside screening device with him, he should still form a reasonable suspicion before making you wait for a device to be delivered to the scene. If the officer does not have such suspicion and no device with him, the demand is invalid and your refusal should not result in a conviction.

Similarly, in case of the demand to provide breath samples into an approved instrument, the officer should first form reasonable and probable grounds to believe that you operated or had care or control of the vehicle while your ability to do so was impaired or while the concentration of alcohol in your blood exceeded the legal limit.

The question, of course, becomes what suspicion is reasonable and what constitutes sufficient reasonable and probable grounds. The answer depends on the particular facts of each case and the application of general principles developed in previously decided cases to those facts. It is the task of an experienced impaired driving lawyer to expose the lack of prerequisite grounds for issuing the breath demand.

The other issue of concern is the qualifications of the officer who operates the particular device or instrument. While the approved instrument must only be operated by a qualified breath technician, any officer can administer a roadside screening test which does not mean he or she knows how to do it. There are currently several different approved screening devices in use by the police and while their operation does not require great skill, officers often simply do not have sufficient knowledge which may result in charging a person who is innocent. I had several cases in which my clients were acquitted specifically because the officers did not know how to operate the approved screening device or misinterpreted the results. Of course, in order to mount this defense, your lawyer should be familiar with the operation of different devices and have a working knowledge of their respective manuals.

The timing of roadside breath tests is also extremely important. The approved screening device test must be administered promptly. The timing of such tests has been the subject of numerous court decisions and depends on the facts of your particular case. If this requirement is not satisfied, the resulting violations of your constitutional rights may lead to exclusion of evidence concerning your refusal to provide a breath sample which, in turn, will result in an acquittal.

Then there is an issue of reasonable excuse. What constitutes a reasonable excuse depends on the circumstances, examples include medical problems, anxiety, hysterical condition, language difficulties, etc.

In cases of multiple unsuccessful attempts to provide breath samples, the issue often arises where should the police draw the line, in other words, how many chances should the person get before being charged with refusal. The number of attempts given, the officer’s and the accused’s actions, the accused’s request for further attempts are just some of the factors relevant to this determination.

All of the above information barely scratched the surface of the issues involved in this offense and potential defenses available to a person charged with refusal to provide breath samples. Considering its technical complexity, the phrase “don’t try this at home” should be modified to “don’t try this in Court” unless you have an experienced impaired driving lawyer by your side.

Marriage Contract

When Do I Need It?

As I always explain to my clients, you don’t need a marriage contract while happily married, you only need it when things go wrong.

Why Do I Need It?

Now that many people get married much later in life having accumulated certain assets which they do not want to share with their spouse if the marriage breaks down and when Internet dating and “mail-order” brides and grooms become more and more popular, the properly prepared marriage contract may be your best and often only protection against property and spousal support claims which may take years to litigate at draconian legal rates.

What Does It Get Me?

Essentially, what the marriage contract allows you to do is to exempt certain issues pertaining to your marriage from the general application of the law. Most frequently such issues include division of property, spousal support, rights on the death of one of the spouses, etc. For instance, marriage contracts often provide that any property acquired by the spouses whether before or after their marriage will always remain the property of the spouse who owns it rather than is subject to regular equalization rules. They may also contain clauses in which the spouses waive their right to claim support from each other in the event of a marriage breakdown. Alternatively, such contracts may provide for a specific mechanism of division of specific property or provide for a set amount and duration of spousal support which may depend on the number of years the spouses have been married.

While the law does not permit waiver of child support to your own children whether in the marriage contract or otherwise and the provisions in the marriage contract regarding custody of children of the marriage are not enforceable, in the event that your spouse already has children from the previous relationship, you may be well advised to provide in the marriage contract that under no circumstances will you stand in place of a parent to these children and will not be required to pay child support to them in the event of the breakdown of your marriage. Why? Because under our law, you don’t have to be a biological parent in order to be required to pay child support. As long as the court finds that you treated the children as your own (or stood in place of a parent), you may end up supporting them for a long, long time.

Basic Requirements

It is crucial for any marriage contract to be valid that both spouses exchange full financial disclosure. In other words, if one spouse is not fully aware of the true financial situation of the other, such spouse can successfully challenge the validity of the marriage contract and if the court sets the contract aside, then the matrimonial issues will be determined by the application of general family law principles.

Also, each party to the marriage contract should receive independent legal advice prior to signing the contract. This means that one lawyer cannot represent both parties to the contract. Typically, one of the spouses retains a lawyer who prepares the marriage contract, then it is provided to the second spouse who reviews it with his or her own lawyer and, if satisfied with its contents, signs the contract.

The task of any lawyer providing independent legal advice is to explain to the client the law, the provisions of the contract and how they alter the otherwise applicable legal rules, nature and consequences of the contract and to ensure that the client fully understands the contract and is entering into it voluntarily.

What If My Spouse Does Not Speak English?

An issue that often accompanies independent legal advice is the language in which such advice is provided. If your spouse does not speak English, receiving independent legal advice in English will obviously have no value to him or her and will detriment your interests since the marriage contract can be set aside on the grounds that your spouse simply did not understand what he or she was signing. Therefore, it is most preferable that the lawyer providing independent legal advice speaks the client’s language and is able to directly communicate with the client rather than rely on interpreters. For example, I often provide independent legal advice to people in Russian and Hebrew.

What If My Spouse Does Not Want To Go to a Lawyer?

In some cases, however, one of the parties may refuse to spend money on independent legal advice. In such situations, a proper waiver of independent legal advice must be included in the marriage contract to avoid a future claim of the type “I did not know what I was signing”.

We Are Not Getting Married, Do We Need an Agreement?

More and more people choose to cohabit without officially marrying each other. While the applicable rules on a breakdown of such relationships are not the same as in the case of legally married spouses, your common-law spouse may well be in a position to claim spousal support or a share in your property. How can you try and protect yourself? Well, just like in the case of marriage, you would enter into a marriage contract, so too, in the case of a common-law relationship, you can enter into a cohabitation agreement.

Guess Who – Identity Fraud

What Is Identity Fraud?

The offense of identity fraud becomes more and more frequent in the modern world and the state devotes a lot of resources in trying to combat it.

Prior to 2010, section 403 of the Criminal Code which deals with identity fraud was called “Personation with Intent”. In January 2010, after amending legislation came into force, this section was renamed “Identity Fraud”, although its contents remained largely unchanged. The maximum punishment for identity fraud is 10 years in jail.

The offense is committed if the accused fraudulently personates another person, living or dead, with one of four intents, namely:

  • with intent to gain advantage for the accused or another person;
  • with intent to obtain any property or an interest in any property;
  • with intent to cause disadvantage to the person being personated or another person; or
  • with intent to avoid arrest or prosecution or to obstruct, pervert or defeat the course of justice.

According to jurisprudence, “personation” is the act of representing oneself to be someone else. The most common examples of personation are handing to the police officer someone else’s driver’s license because your own license is suspended or identifying yourself to the police officer with your brother’s name because you cannot be out of your residence pursuant to your bail conditions. This crime, however, can take much more complicated and sinister forms. For instance, one fellow obtained birth certificates of persons who died in infancy, created series of false identities in these persons’ names, and used them to obtain credit cards, student loans, etc. Another case involved the personation of several health care workers in order to collect paycheques in their names. As the use of computers and the internet becomes more common, so is identity fraud since information technology provides new avenues for this crime.

But I Like to Call Myself Santa Clause

So, what if you like some people hate the name your parents gave you and represent yourself by a fictitious name, can you be convicted of identity fraud? The answer at least for now is no. The person personated must be a real one, whether dead or alive, so if you identify yourself as a fictitious character, you are not guilty of s. 403 offense. However, oddly enough, as it often happens in law, while the personated individual must be a real person, there is no requirement for this person to be identified in order to get a conviction. As long as the court is satisfied that John Smith is a real human being, the prosecution does not have to prove beyond a reasonable doubt which particular John Smith you personated.

The amending legislation which came into force in 2010, introduced another twist to s. 403 by providing that an identity fraud charge can be made out through the use of another person’s identity information. In other words, personation can include either making representations of being another person or using that other person’s identity information as if your own. The identity information means any information – including biological or physiological information – of a type that is commonly used alone or in combination with other information to identify or purport to identify an individual, including a fingerprint, voice print, retina image, iris image, DNA profile, name, address, date of birth, written signature, electronic signature, digital signature, user name, credit card number, debit card number, financial institution account number, passport number, Social Insurance Number, health insurance number, driver’s license number or password.

But I Did Not Intend to Screw Anyone Over

Of course, the act of personation by itself is insufficient for finding guilt in the court of law. The accused must perform the act of personation fraudulently (or in other words, with intent to deceive, dishonestly) and, in addition, the accused must do so with one of four specific intents listed above. Accordingly, if the defense is able to negate or raise a reasonable doubt regarding the act itself, the fraudulent nature of the act, or the specific intent with which the Crown alleges the act was fraudulently committed, the accused is entitled to an acquittal.

As a simple example, imagine that you and your older brother both use the same car. While you drive the car, you are stopped by a police officer who requests you to produce a driver’s license, ownership, and insurance. You grab a driver’s license from the glove box and give it to the officer without looking. It turns out to be your brother’s driver’s license. You have nothing to hide and nothing to gain by passing yourself off as your brother and do not intend to cause any trouble to your brother by doing that. While you need to pay more attention next time around, you certainly should not be found guilty of identity fraud.

The Offence of Fail to Remain or Fail to Stop

The offense of Fail to Remain or Fail to Stop is more commonly known to the general public as “hit and run”.

The Duties of Driver

The law imposes three duties on anyone who operates a motor vehicle, vessel, aircraft, or railway equipment, collectively now called “conveyance”, which is involved in an accident with another person or conveyance. Those duties are:

  1. stop the conveyance;
  2. give your name and address; and
  3. where any person has been injured or appears to require assistance, offer assistance.

If any one of the above three duties are not met and the accused knows or is reckless as to whether he was involved in an accident or when any one of them is not met without reasonable excuse, the accused is guilty of “hit and run” with a maximum punishment of 10 years imprisonment. If in the same circumstances, the accused knows or is reckless as to whether the accident resulted in bodily harm to another person, the maximum punishment goes up to 14 years and if the accused knows or is reckless as to whether the accident resulted in death or bodily harm was caused to another person involved in the accident whose death ensues, the maximum punishment goes all the way up to life imprisonment.

What Do I Do If I’m Charged?

So, what do you do if you are charged with “hit and run”? Run to the lawyer, of course. Why? Because as grave as the offense sounds, there are potential defenses to any offense which have to be explored before or rather instead of giving up.

Other Person or Conveyance

First of all, I had several cases where my clients were charged with this offense although they were not even involved in an accident with another person or conveyance. For instance, one of them smashed his car into a guard rail and left the scene. After he was found by the police, he was charged with failing to remain at the scene of an accident, but then, this charge was dropped. Unfortunately, the police often misinterpret the meaning of this charge and it takes a lawyer to show to the Crown that it has no case against you.

Who Operated Conveyance?

Also, don’t forget that the Crown must prove your guilt beyond a reasonable doubt, you don’t have to prove your innocence. In the context of “hit and run” offenses, this means first of all that the Crown must prove you are the person who in fact operated the conveyance. In the chaotic aftermath of an accident, it is often impossible to prove who that person actually was. If such proof is absent, the charge must fail.

Awareness of Accident

In some cases, there is insufficient evidence that you knew you were involved in an accident. Crown has to prove that you knew or were reckless as to the fact of the accident in order to prove your guilt. While in many cases, it is simply impossible to be unaware of the accident, there are situations where the evidence on this point is obscure and susceptible to different interpretations. Suppose a person drives at night on a dark road and runs over something which may be an object but, considering the “quality” of many roads in GTA, maybe simply a surface defect. It turns out that this was actually a pedestrian who was lying on the road for some reason, say drunk or fainted. In these circumstances, you may have a viable defense based on a lack of knowledge that you were involved in an accident. In some cases, however, knowledge may be imputed by the doctrine of “recklessness” or “willful blindness” when the accused has serious suspicion he is involved in an accident but chooses to remain ignorant. Special care must be taken by the defense to refute evidence pointing to this conclusion.

Reasonable Excuse

Furthermore, the failure to perform one of the three duties imposed by law may be justified by some circumstances including, for instance, your own injuries, condition of shock and emotional distress, lack of knowledge of English, etc. This can serve as a “reasonable excuse”, which in turn may absolve you of criminal liability.

Every fact is important and all evidence must be carefully considered by an experienced lawyer to provide you the best possible defense in the circumstances of your case.

Theft and Fraud Offences

Are They Serious?

Theft and fraud are crimes of dishonesty that carry with them a very serious social stigma. A criminal record for these offenses may have very negative consequences, especially for your employment opportunities. As you can imagine, no bank or other financial institution will want to employ a person found guilty of fraud. In fact, it is difficult to imagine what employer would want a convicted thief or fraudster to work for them in any position of trust.

What About Punishment?

Frauds involving credit cards, serious monetary losses, and any organized schemes attract more and more severe penalties and often result in jail terms.

That is why it is so important to defend against such charges. Although theft and fraud cases may be very complex and the defense can be expensive, an experienced defense lawyer can certainly bring you the results well worth your money.

How Can I Fight These Charges?

Large-scale fraud prosecutions often fall apart because generally there are no crown attorneys who specialize in them. Moreover, oftentimes, the prosecutors have no time and patience to sort out what is really going on in any particular case. But as your lawyer, I work for you and I will go through every document and expose every inconsistency to advance your defense.

In many cases, the evidence is obtained as a result of a search conducted with or without a warrant. As an experienced Charter advocate, I will use every possible way to exclude such evidence on constitutional grounds thereby depriving the prosecution of a basis for conviction.

What If They Got Me “Dead to Rights”?

Of course, in some cases, the evidence is so overwhelming that the best thing is to work out a deal with the prosecution to avoid a more severe penalty at trial or reduce the charges. For that too, you need an experienced and respected lawyer to conduct plea bargaining discussions on your behalf. In many cases, restitution (paying the money back) may get you even a withdrawal of charges.

Don’t Drink and Drive… Or, If The Government Has Its Way, Don’t Drink For Two Hours After Driving Either

In December 2018, the government introduced new draconian measures which effectively lowered the permissible blood/alcohol level, eliminated previously available defense of bolus drinking or last drink defense as well as dispensed with current minimum constitutional prerequisites to searching the motorists by obtaining their breath samples into an approved screening device (roadside testing) in certain circumstances.

Over ’80 vs ’80 Over

First of all, the offense of driving with more than the legal limit which used to be called “over ‘80” is now commonly referred to as “’80 over”. The reason for it is that under the law as it stood prior to December 2018, when your intoxilyzer breath readings were obtained, they were truncated to the nearest lower number ending with 0, i.e. if you blew 123, your result would be truncated to 120, if you blew 99, the truncated reading would be 90 and so on and so forth. So, if you blew anywhere between 80 and 89, the result would be reported as 80 and since the offense was “over ‘80”, you would not be charged.

The truncation still remains in place, but the new legislation now punishes those who blow 80 or over which effectively lowers the blood alcohol level from 89 to 80. At the end of the day, this is not the biggest problem with the new legislation. After all, the government can make the permissible blood/alcohol lower to improve road safety.

The real problem is that in order to prevent the legitimate defense of bolus drinking, the new legislation prohibits a motorist to have a blood/alcohol limit of 80 or over for TWO hours after such motorist finished driving unless he or she did not reasonably expect to be subjected to breathe tests. What does it mean? Well, that largely depends on the particular circumstances of your case.

This part of the legislation is nothing more but a clumsy attempt to prevent people from relying on bolus drinking or last drink defense and like any attempt to prevent something that does happen, it looks and sounds absurd and may lead to really odd results. In this particular case, the new law criminalizes something which happens after driving (as long as two hours after) which is ridiculous and hopefully will be ultimately found unconstitutional. However, at least for now, we have to deal with this new law as it stands.

What Is “Bolus Drinking”?

You may wonder what bolus drinking or last drink defense is? Well, the alcohol gets absorbed in the human body gradually, reaches its maximum concentration based on your weight and amount consumed, and then, also gradually leaves your system. So depending at which point of this continuum you get caught driving, your blood/alcohol level at the time of driving (which used to be the relevant time for the purposes of over ’80 charge) may be within the legal limit, however, by the time you get to the police station and are subjected to breathe tests, your blood/alcohol level climbs above the legal limit. This defense arises in cases of consumption of large quantities of alcohol within approximately 15 minutes of being stopped by police and such cases do happen. The last drink defense is a variety of bolus drinking defenses. Say, you have three beers which for you translate into a blood/alcohol level of 75 mg in 100 ml of blood (within the legal limit), but then you consume yet another beer before leaving the bar and within 15 minutes of this last drink, get stopped by the cops. At the time of traffic stop, this last drink has not yet been absorbed into your system, so you are still driving with 75 mg/100 ml of blood. By the time your samples are taken through the fourth beer is fully absorbed and you blow 100 which is above the legal limit.

So what the new legislation was designed for is to eliminate this defense by shifting the relevant time from the time of driving to up to two hours after the driving is finished which is mind-boggling. It seems that a fairer way of dealing with the issue would be to reduce the permissible blood/alcohol level all the way to 0.

Are There Any Exceptions?

The only exception envisaged by the new legislation is if: (i) the accused consumed alcohol after ceasing to operate a motor vehicle; (ii)after ceasing to operate the motor vehicle, the accused had no reasonable expectation that he or she would be required to provide a sample of breath or blood; and (iii) the accused’s alcohol consumption is consistent with the blood/alcohol level as determined by breath sample analysis with an approved instrument or with a blood sample analysis and with a blood/alcohol level which was less than 80 mg of alcohol in 100 mL of blood at the time when the accused was operating the motor vehicle. Sounds impossible? Again, it depends on the particular circumstances of your case.

What if I Was Charged Under the Old Legislation, Am I Subject to the New Regime?

It is important to remember that the new drinking and driving legislation is not retroactive, so if you were charged prior to the date when new amendments came into force, the old defenses (such as bolus drinking) are still available to you.

So Are There Any Defenses Left?

Since the passing of this legislation, in many cases, the only defense to ’80 overcharge will be to challenge the admissibility of test results which makes it even more important to have an experienced impaired driving lawyer on your side.

Can Drunk Driving Conviction Drive Me Out of Canada?

This is the question many foreign nationals and permanent residents should be asking themselves after the latest amendments to the drinking and driving sentencing regime came into force.


Section 36(1) of the Immigration and Refugee Protection Act states that a permanent resident and foreign national becomes inadmissible to Canada on grounds of serious criminality which includes conviction of an offense in Canada punishable by a maximum term of at least ten years imprisonment.


The federal government has increased the maximum punishment for simple drinking and driving offenses (those not involving bodily harm or death) from a former maximum of five years to ten years imprisonment. This makes any person who has no Canadian citizenship subject to removal from Canada if convicted of a drinking and driving offense. Note that you do not have to be sentenced to ten years or even to any jail time at all, the simple fact that such a sentence is available makes you inadmissible.

This change attracted a lot of criticism since it clearly introduced consequences that are disproportionately serious for a huge segment of the population, however, the fact is that the law did get changed.

Accordingly, today more than ever non-citizens charged with drinking and driving offenses must fight these charges to avoid, among other negative consequences of a criminal conviction, their removal from Canada.

Why Was I Charged? I Wasn’t Even Driving!

Over the years of my practice as a criminal lawyer, my clients have asked me this question on numerous occasions.

The simple answer is that in order to be charged with a drinking and driving offense, you don’t have to actually drive, it is sufficient that you are in what is called “care or control” of your vehicle. Under the new legislation, you would be charged with an impaired operation which includes being in care or control of the vehicle or conveyance as it is now called in the Criminal Code. This situation normally arises when the police stumble upon a person who is in or near a stationary motor vehicle and who appears to be impaired or over the legal limit.

But that is the simple answer. The next question is what is “care or control”. The courts of all levels and lawyers alike have struggled with this question for years and years and I think this area of criminal law can be fairly described as one of the most convoluted and hated by everyone.

What is “Care or Control”?

As with other DUI offenses, the Criminal Code provides the prosecutor with a convenient presumption, namely, that if a person is found in the driver’s seat of a motor vehicle, such person is presumed to be in care or control unless the accused rebuts the presumption by showing that he was not occupying the driver’s seat for purpose of putting the vehicle in motion. Even if the presumption is rebutted, however, the Crown can still prove that the accused was in actual care or control.

How Do I Fight This Charge?

In defending the care or control cases it is imperative to show that the accused did not perform any acts in relation to the vehicle which could intentionally or accidentally put it in motion or otherwise create a danger. In this regard, the central issues include what steps are required to put your car in motion, why were you in the car, what was your plan of action, was your car operable, where was it located, could it be put in motion accidentally, was there a risk that you change your mind and decide to drive it, etc.

While the courts have developed some general principles, this area remains fraught with contradictory and irreconcilable judgments. Each fact situation requires separate analysis and research to find support in the jurisprudence for the position that in your particular case you were not in care or control.

The care or control charges present many pitfalls and every fact of your case has to be carefully scrutinized by an experienced impaired driving lawyer to determine the best line of defense.

Why is it so important to determine whether you are in care or control? Because if you are found not to be in care or control, you can be as drunk as you want and your level of alcohol in the blood can be sky-high, you are still not guilty.

If you are charged with a care or control offense and want to fight the charge, you have to entrust your case only to an experienced impaired driving lawyer who is prepared to examine every detail of your case to provide you with the best defense possible.