Impaired driving, DUI, DWI, over 80… What does it all mean?

The law surrounding operating a motor vehicle while impaired by alcohol or drugs in Canada is extremely complex. There are several different charges which could be laid stemming from the same driving event. Understanding the terminology involved is the first step in navigating your charges.

Impaired driving is the term used to describe driving while under the influence of alcohol or drugs. It is a common misconception that impaired driving and over 80 are the same offence. However, they are two separate offences. An impaired driving charge can be laid if someone operates a vehicle while impaired by alcohol or drug. There must be sufficient indicia (indicators) of impairment to support this charge. A charge of over 80 can be laid if a breath test or blood sample shows that you were operating a vehicle with a blood alcohol concentration of over 80 mg per 100 ml of blood.

Impaired driving cases are extremely technical in nature and can be confusing at times. If you’ve been charged with impaired driving and/or over 80 you need to seek legal advice, call our office – we can help.

I was arrested and the police did not inform me of my right to counsel. What is my remedy?

It is the constitutional right of all Canadians to be informed of their right to counsel upon being detained or arrested. Section 10(b) of the Charter of Rights and Freedoms provides that everyone has the right on detention or arrest to retain and instruct counsel without delay and to be informed of this right. The right to be informed of the right to counsel is taken very seriously within the legal system. Section 10(b) requires that an arrested person be informed of their right to consult a lawyer, consult duty counsel, and/or seek legal aid.

If you are detained or arrested without being promptly informed of your right to counsel, your Charter rights have been infringed. The remedy for this infringement is an exclusion of evidence, such as any statements you made after being arrested, under section 24(2) of the Charter. If you feel that you were not adequately informed of your right to counsel, contact our office today to discuss your options.

What is the victim fine surcharge?

The Victim Fine Surcharge became mandatory in Canada on October 24, 2013. It was established to help fund victim services such as counseling. Judges no longer have the option to waive the charge for impoverished offenders.  The surcharge is $100 for summary offences and $200 for indictable offences or 30% of any fine imposed by a judge. Judges do have discretion on the length of time imposed to pay the fine.

Victim Fine Surcharges are one piece of the larger sentencing picture. Sentencing is an extremely important matter. If you have concerns about an upcoming sentencing hearing or would like to learn more about the sentencing process, contact our office today.

Update: Shortly after publishing this blog, a decision by Ontario Court Justice David Paciocco struck down the mandatory Victim Fine Surcharge. Justice Paciocco found that the surcharge amounted to cruel and unusual punishment for impoverished offenders. For more information on this evolving area of law, click HERE.

What is the adult therapeutic court?

The London Adult Therapeutic Court was created in June 2007. It is also known as the Mental Health Court. The Court operates on Wednesdays and follows a therapeutic jurisprudence model rather than an adversarial model.

With significant rates of Ontario offenders and inmates suffering from mental health issues, the Adult Therapeutic Court plays an increasingly important role in our community. The Court’s goal is to avoid the criminalization of mental illness and prevent reoffending by diverting these individuals out of the criminal justice system and directing them to the proper medical resources.

Offenders must receive approval to be diverted into the Adult Therapeutic Court. Adults with serious mental illness, developmental disabilities, concurrent disorders such as a mental illness and a substance abuse problem, and those with an acquired brain injury, dementia, or fetal alcohol spectrum disorder are all good candidates to be accepted into the Court. Our lawyers have extensive experience in the Adult Therapeutic Court. If you would like to learn more about the Adult Therapeutic Court, contact our office today.

Should I give a statement to police?

If you’ve been asked by police to give a statement in relation to your arrest or a forthcoming charge, you should always seek the advice of legal counsel. Your right to remain silent is guaranteed by Section 7 of the Charter of Rights and Freedoms and your right to retain and instruct counsel is guaranteed by Section 10(b).

Police are required to inform you of these rights upon arrest and you do not have to answer their questions. It is advisable to speak with legal counsel before making a statement or answering any questions. You need only provide the police with your correct name and address. Everything you say to the police is being recorded and can be used against you as evidence in court.  This could be very detrimental to your case. If you are unsure about making a statement to police and you would like the advice of an experienced criminal lawyer, give us a call.

The crown offered me a peace bond: what does this mean?

A peace bond is an order made by the Court that a person keep the peace and be of good behaviour. This order is usually in effect for a period of twelve months and can include other conditions, such as a no weapons or non-communication provision. A peace bond is not an admission of guilt or a finding of guilt.

If an accused person agrees to enter into a peace bond, their charges will be withdrawn at the request of the Crown. However, if this person fails to comply with the conditions of their peace bond, then their matter will return to Court and they could face additional charges. Therefore, it is advisable to seek legal advice before agreeing to enter into a peace bond. Contact our office if you would like to learn more about peace bonds.

What is the extrajudicial sanctions program?

The Extrajudicial Sanctions Program, commonly known as E.J.S., is a diversion program created specifically for youth. The goals of the program are to increase community involvement in the rehabilitation of young offenders, allow youth an opportunity to make amends for their actions, and reduce stigma and labelling. In order to qualify for this program, the offender must be between the ages of 12-17 years old, accept responsibility for their conduct, be willing to participate in the program, and be referred by the Crown. Only certain offences qualify for this program.

Participants meet with a youth worker to determine the conditions of their specific program. Conditions could include, but are not limited to, writing a letter of apology to the victim, community service, completion of an essay, or participation in a counselling program. If the offender fails to abide by the terms of their program, then the original charges will be laid and/or judicial proceedings will be recommenced. If you would like to learn more about the E.J.S. Program, contact our office today.

What is the direct accountability program?

The Direct Accountability Program, commonly referred to as D.A.P., is a diversion program with a goal of keeping first time offenders (or others with minimal criminal records) out of the prison system. D.A.P. is typically available only to adults (18+) who have limited or no prior involvement with the adult criminal justice system and who have been charged with a minor offence. The Crown must refer your file to D.A.P. and you must then apply and be formally accepted into the Program. If you successfully complete your Program, your charge(s) will be withdrawn at the request of the Crown.

The London, Ontario Direct Accountability Program is facilitated by St. Leonard’s Community Services London and Region. Each person’s Direct Accountable Program is highly customizable and created with the goal of rehabilitation and restitution. For example, participants in the Program could be required to attend counselling, perform community service, or donate to a charity. Contact our office if you would like to learn more about the Direct Accountability Program.

Are you surprised by the results of your background check?

There have been many reports in the media recently of Canadian citizens seeking a background check and receiving the surprising news that their background is not as clean as they once thought. This is because many police forces record and release non-conviction information such as complaints where charges were never laid, suicide attempts and other police interference for mental health reasons, withdrawn charges, acquittals, casual police contact, and investigatory details.

Click HERE to learn more

Clean background checks are essential when applying to many employment and volunteer opportunities. If you find yourself in the unfortunate situation discussed here, we can help.  We are willing to write letters to potential employers and volunteer organizations explaining the circumstances of your unclean background check and emphasizing your innocence. Contact us today.

What is the London drug treatment court?

The London Drug Treatment Court (LDTC) is a project aiming to keep long-term drug addicts from serving time in jail, help them get clean, and prevent future involvement with the criminal justice system. It provides supervised addiction treatment for people addicted to cocaine, crack, methamphetamines, and opiates. Instead of serving jail time, participants receive a non-custodial sentence and a period of probation following the successful completion of the program.

The process begins with a lawyer referring their client to the LDTC. If this client is accepted into the LDTC, they become part of an outpatient addiction treatment program and must appear in front of the LDTC judge once a week. Among other things, they are expected to attend medical, housing, and social services appointments, abide by a curfew, and do volunteer work. Many participants find the program very rewarding.

Individuals must meet certain eligibility requirements in order to qualify for the LDTC program. These criteria are related to the nature of the charge and the individual’s history of drug use. We can help you determine if you are a good candidate for the London Drug Treatment Court and if a referral should be made.