Harsher Penalties In Effect For Driving Impaired

Driving impaired is never a good idea. Alberta recently updated the sanctions for alcohol and drug-impaired driving offences to align with the latest federal laws. These provisions were put into effect to update the laws after cannabis was legalized throughout the country. Today’s federal levels include 80 milligrams or more (mg) of alcohol per 100 millilitres (ml) of blood for alcohol. For cannabis (THC), between 2 nanograms (ng) and 5 ng is considered a less serious offence, while the more serious crime is to have 5 ng of THC or more per ml of blood. When alcohol and cannabis are found in tandem, 50mg or more of alcohol per 100ml blood and 2.5 ng or more of THC per ml of blood is prohibited to operate a motor vehicle.

What Are The New Laws?

Under Bill C-46, police no longer need to have any reasonable grounds to suspect impairment before demanding a sobriety test. Refusing the test can result in criminal charges. On top of that, if you drank within the past two hours after you’ve stopped driving, but your blood alcohol content (BAC) is over .08, you could get arrested, even though that’s not the intent of the law.

The Bolus Drinking Defence

The harsher laws were designed to help crack down on individuals who consume large quantities of alcohol in a short period of time and then trying to drive home before the alcohol is absorbed. This is called the bolus defence. It’s a defence that is no longer valid under the new laws, but it was one that raised doubt enough that it worked in the past. The Bolus Drinking Defence is defined by The Department of Justice as, “a defence for an individual to raise reasonable doubt that their BAC was over 80 mg at the time of driving by adducing evidence of consumption that is compatible with both the BAC at the time of testing and with a BAC of 80 or less at the time of driving.”

Are The New Laws Working?

Some in the law community have pointed out some of the potential flaws in these new laws. According to a news story from CBC, the law might be a solution to a problem that rarely exists and could punish deeply impact individuals who have done nothing wrong. The Department of Justice notes that in 2017, there were more than 69,000 impaired driving incidents and 3,500 drug-impaired driving incidents. Even with those staggering numbers, some people believe that these laws infringe on their basic rights and leave much of the details and potential evidence up for interpretation.

If you’ve been charged with drunk or impaired driving, give our team at Verhaeghe Law Office a call at 587-410-2500. We can help you.

The Legal Paradigm

Most of us watch television. You’ve probably seen at least one episode of the Law and Order franchise. Law and Order is a popular television show that is police procedural for the first half-hour and the legal process for the second. Granted, it uses the US Court System, but as far as the overall process, just how close is this to real life? Let’s see…

Myths in TV Police Procedure and Law

People go directly to a full-blown trial.

On television, the accused appears to be arrested and questioned one day and involved in a full-blown trial the next. The process in real life is quite different. If you are accused of a crime, you may be arrested. You have a right to a lawyer and should call one as soon as possible. After your arrest, you may be held in custody up to 24 hours. At that point, you will either be released or taken to court for a bail hearing. That hearing will determine whether you will be remanded to pre-trial custody in a provincial correctional centre or released with a bail payment. When all of this is done, if you are going to trial, your case will be placed on a court calendar for a preliminary hearing and/or trial.

If it can work in a half-hour it must be a fast process.

Based on average statistics, from your first appearance to final court decision will take approximately 112 days.

The accused will take the stand.

If you are on trail, it is your right to remain silent, and you should base your decision about whether to take the stand on the advice of your lawyer. Remember, the prosecutor must prove that the accused is guilty beyond a reasonable doubt.

The guilty party will undoubtedly either break into tears or have an angry outburst.

Hopefully, if you are accused, your lawyer will prepare you for what to expect during the trial. It is in your best interests to be calm.

Testimony is always straight to the point.

On TV, testimony has to be interesting and provide information for the audience to guess how it will affect the jury’s decision. In real life, testimony can be very long and not nearly as concise as you see on Law and Order. Each side will have many witnesses and a lot of evidence. There is no hard-and-fast rule or formula for what each witness will be asked or how long they will be on the stand.

The courtroom will be full of spectators.

In most cases, unless it is a very high-profile case, the courtroom will not be full. The public is invited to come and watch proceedings in the Provincial Court. On rare occasions, a judge may order that a hearing is closed to the public, usually to protect the privacy of children or others.

Police hang out in courtrooms to find out how their cases play out.

Police are generally seen in the courtroom if they take the stand to present testimony. Lingering in the courtroom like your favorite cop on Law and Order doesn’t happen often. Once they present their testimony, the police are generally back on the job!

Life doesn’t mirror the police procedural/legal drama paradigm. If you are accused of a crime, it is your right to call a lawyer. Call Verhaeghe Law Office. We’ll take you through the rest of the procedure… and there won’t be any theme music.

Miscarriage of Justice? Let’s Appeal

Depending on the nature of the sentence or conviction, there might be various appeal paths. However, the purpose of a conviction appeal is not to retry your case. A court will not hear your evidence again to determine if you were guilty or not. That said, an appellate court can only set aside your conviction for one of three reasons:

The judge made an error of law
There was a miscarriage of justice
An unreasonable verdict was rendered and couldn’t be supported by evidence

Error of Law

If you believe errors of law were made at your trial, you may appeal your conviction. Wrongful admission of evidence, a wrong interpretation of a Charter, or a misdirection to the jury on a question of law are all examples of errors of law. However, according to the Criminal Code of Canada, Section 686(1)(bb)(iii) if the court believes that the verdict would still have been the same regardless of the error, the appeal will be dismissed.

Miscarriage of Justice

If there are errors in both law and facts, the appellate court can rule to set your conviction aside. Miscarriage of justice is often synonymous with “wrongful conviction.” Some examples include biased evidence editing, prejudice against the class of people, faulty forensic tests, false confessions due to police pressure, misdirection of a jury by a judge during the trial.

An example of a miscarriage of justice occurred in 1972 when Donald Marshall Jr was convicted of murder and was later acquitted in 1983 after spending 11 years in prison. His conviction resulted in the Canada Evidence Act, which states that any evidence obtained by the prosecution must also be presented to the defence on disclosure.

Unreasonable Verdict

Challenging a conviction through unreasonable verdict focuses primarily on the weakness of the evidence. It must be proven that the evidence was too weak for reasonable jurors to find you guilty beyond a reasonable doubt. This avenue is often very difficult to prove because arguments about the credibility of witnesses or the importance given to certain pieces of evidence rarely succeed.

What’s The Process?

Through an appeal, it can be asked of the Court of Appeals review decisions rendered by lower courts. The appeal must show that the decision maker made a legal or factual error that impacted the outcome of your case. This isn’t a re-trial, and you do not have the automatic right to appeal. That’s where our team can help. We can determine if you require permission to appeal, obtain that permission, and submit any necessary paperwork to get the process started.

For civil cases, you have one month from the day the judge stated who won the case to file your appeal and pay the $600 fee. For criminal cases, you must file your appeal 30 days from the date of sentencing, and there is no fee. If your case has been accepted for review, the appeal doesn’t stop the enforcement of an order, and you must comply with all judgments and court decisions while the appeal is being reviewed.

If you feel your case is a candidate for appeal, please contact us at (587) 410-2500. We will review your case and determine whether it should be pursued further.