Female driving car. Vintage filter

Immediate Roadside Sanctions and IRS: fail – an introduction

Important: The information here is to provide a very basic overview of what Immediate Roadside Sanctions are, focused on the IRS: fail type. If there is any inconsistency between the information here and what you see on your paperwork or what is referred to on any Alberta government website or SafeRoads Alberta website, please contact legal counsel who can advise you directly. If you do not contact counsel, you should rely upon whatever is stated on your paperwork or Alberta government or SafeRoads Alberta information.

This information is also not a substitute for advice from an actual lawyer. If you have received an Immediate Roadside Sanction, please feel free to contact Dushan, Tania, or Jordan of our office for a free initial consultation where we can discuss your case.

What are Immediate Roadside Sanctions?

Immediate Roadside Sanctions (IRS) are a series of penalties that peace officers can impose in driving cases where alcohol or drugs may be involved. They are programs that were created in the Traffic Safety Act of Alberta. There are currently five types:

  • Immediate roadside sanction: 24-hour
  • Immediate roadside sanction zero: novice
  • Immediate roadside sanction zero: commercial
  • Immediate roadside sanction: warn
  • Immediate roadside sanction: fail

When an IRS is imposed, it will be set out in a Notice of Administrative Penalty (NAP), that is served directly upon the driver by the peace officer.

What is the IRS: fail program?

The IRS: fail program is one of the most common types of IRS that is used. It is one of the most likely penalties to be imposed in Alberta in conventional cases of impaired driving (or, as some know it, ‘DUI’, ‘driving under the influence’, ‘driving while impaired’, etc.), driving with a blood alcohol or drug concentration over a certain limit, or refusing/failing to comply with a demand for a sample. The IRS: fail penalties can be imposed by a peace officer when they have reasonable grounds to believe any of the following (subject to certain specific exceptions):

  • that a driver operated a motor vehicle while the driver’s ability to operate the motor vehicle was impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug;
  • that a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration that is equal to or exceeds 80 milligrams of alcohol in 100 millilitres of blood;
  • that a driver has within 2 hours after ceasing to operate a motor vehicle a blood drug concentration that is equal to or exceeds any blood drug concentration for the drug that is prescribed by regulation under the Criminal Code (Canada);
  • that a driver has within 2 hours after ceasing to operate a motor vehicle a blood alcohol concentration and a blood drug concentration that is equal to or exceeds the blood alcohol concentration and the blood drug concentration for the drug that are prescribed by regulation under the Criminal Code (Canada) for instances where alcohol and that drug are combined;
  • that a driver, knowing that a demand has been made, failed or refused, without a reasonable excuse, to comply with a demand made on the driver under section 320.27 or 320.28 of the Criminal Code (Canada).

What are the penalties of IRS: fail?

The penalties depend on whether this is the individual’s first, second, or third (or more) contravention.

For a first contravention:

  • The driver will be suspended:
    • For 90 days, during which they cannot drive at all.
    • After those 90 days, the driver is suspended for a further 1 year – the driver can only drive during this period if they receive approval for the IRS: fail Ignition Interlock Program and are driving with an ignition interlock device.
  • The vehicle will be seized for 30 days (also, this usually results in impound fees).
  • There will be a fine of $1000, plus a surcharge of 20% (i.e., a total of $1200).
  • There is a requirement to complete the Planning Ahead course, and any other reinstatement conditions that may be imposed in relation to the driver.

For a second contravention:

  • Suspension:
    • Initial: 90 days
    • Following that: 36 months (subject to interlock, as above)
  • Vehicle seizure: 30 days
  • Fine: $2000, plus surcharge of 20% (i.e., a total of $2400)
  • Other: the IMPACT Program (and any other reinstatement conditions)

For a third (or more) contravention:

  • Suspension:
    • Initial: 90 days
    • Following that: lifetime (subject to interlock, as above – under some circumstances, a person may be eligible for removal of the lifetime suspension and interlock requirement after 10 years)
  • Vehicle seizure: 30 days
  • Fine: $2000, plus surcharge of 20% (i.e., a total of $2400)
  • Other: Other significant reinstatement conditions are more likely in this scenario.

How can a person challenge an IRS: fail?

There are three primary points at which an IRS: fail can usually be challenged: a roadside appeal, an IRS review, and a judicial review of an IRS review decision.

Roadside appeal

A roadside appeal is a process that occurs as a continuation of the same interaction with the peace officer that is issuing the IRS: fail. If a driver requests a roadside appeal, and if they are eligible for one (there are some scenarios where one may not be available), it is usually more or less immediate and will likely occur at the scene or at a nearby police detachment. It can take various forms, but generally involves some further type of test to confirm or contradict the peace officer’s belief that the driver committed a contravention.

For example, if the basis of the peace officer’s belief was that the driver provided a breath sample into an Approved Screening Device and the result was a ‘Fail’, one of the most common types of roadside appeals will be to provide another breath sample into a different Approved Screening Device. As mentioned though, roadside appeals can take other forms, and could sometimes involve being transported to a police detachment for some sort of further test(s).

If the result of the second test confirms the peace officer’s belief, then the Notice of Administrative Penalty that sets out the IRS: fail will be unchanged. On the other hand, if the second test does not meet the threshold for an IRS: fail, then it will be cancelled. It should be noted, however, that there are some circumstances where the peace officer may still be able to revert to a lower form of IRS penalties instead (for example, if the person initially blew a ‘Fail’ and in the second test they blow a ‘Warn’).

IRS Review

Where a driver is seeking to dispute their Notice of Administrative Penalty, they can initiate an IRS review. This can be done through the SafeRoads Alberta website (https://saferoads.alberta.ca/contraventions/search) or by going to a registry agent. There is a non-refundable fee of $150 (this does not include any other costs that may be involved, such as lawyer fees). A hearing will be scheduled before an adjudicator, who will decide whether to confirm or cancel the Notice of Administrative Penalty.

Whether a review is likely to succeed or not depends heavily on the particular facts of the case. The procedures and available arguments are often not straightforward. It is generally a good idea to speak to a lawyer about this, either before or after the review has been initiated (and well before any hearing).

If you are seeking to initiate a review, it is very important to apply within 7 days of receiving the Notice of Administrative Penalty. If you are past that deadline, there are some circumstances where an extension may be possible – however, they are not common and require a separate application (with its own fee), which can only be granted if certain criteria are met. You should therefore never rely on being able to get an extension and should instead make all efforts to meet the 7-day deadline.

Judicial Review

If an IRS review is unsuccessful, a person can seek judicial review of that decision. This involves an application to the Court of King’s Bench of Alberta. This must be filed and served on the Director of SafeRoads Alberta no later than 30 days from the IRS review’s decision date.

Judicial reviews are even more complex than IRS reviews, and so, as before, it would be best to speak to a lawyer further about how they work.

If a driver receives an IRS: fail, can they also be charged under the Criminal Code?

Yes. There are circumstances where a driver may receive both an IRS: fail and an actual Criminal Code charge (and potentially other provincial or federal offences, depending on the nature of what is alleged to have occurred).

The scenarios where both may occur cannot really be definitively listed, as they can vary significantly. However, there are certain situations which make the combination more likely. For example:

  • if a person has a history of contraventions or criminal charges in relation to alcohol or drug-related driving;
  • if injury or property damage was caused, such as in a collision;
  • if it is alleged that a person engaged in additional offences as part of the incident, such as failing to remain at the scene of an accident, driving while disqualified, and so on.

The above list is not meant to be definitive, nor is it all-inclusive. For example, there are people who may fall into the above scenarios, but the peace officer may decide to only use an IRS: fail. Additionally, there are other possible scenarios where a peace officer may decide to impose both an IRS: fail and criminal charges. However, the situations above are probably some of the more common ones where the combination of IRS: fail and criminal charges may result.

If you do receive criminal charges, it is very important to speak to a lawyer (it is a good idea to speak to a lawyer even if you are faced with an IRS: fail without a criminal charge, but a criminal charge makes doing so especially important). The consequences of an IRS: fail are already significant, but the consequences of criminal charges can be much greater, particularly in the long-term.

If you wish to speak to a lawyer about your IRS: fail, impaired driving criminal charge, or any other criminal law concern please do not hesitate to contact us for a free consultation.

A defence lawyer, reading from a book in a law library

Kelly Dawson Retires

On April 1, 2022, Kelly Dawson, one of the founding members of our firm, retired from the practice of law. Mr. Dawson practiced criminal law for nearly forty years. He exemplified the absolute best of our profession and is renowned for his courtroom advocacy and his incredible commitment to the legal community.

We will continue Mr. Dawson’s legacy in the work we do in the firm he founded. Mr. Dawson combined his reputation for excellence in legal advocacy with his compassionate personality. As a firm, we witnessed firsthand his leadership and the embodiment of our profession’s highest ethical standards.

Mr. Dawson’s commitment to the legal community and protecting the rights of accused persons spanned his nearly forty-year legal career. A past president of the Criminal Trial Lawyers Association, he spent countless hours and unmatched energy advocating for the right to accessible legal counsel and the protection of fundamental tenants such as choice of counsel and transparency in the financial eligibility guideline process with Legal Aid Alberta.

Mr. Dawson defended thousands of individuals over the course of his distinguished legal career. Mr. Dawson was known for defending tough cases for those facing the most serious and challenging allegations in the Criminal Code. In doing so, he developed a reputation for being a fearless advocate for those facing allegations of sexual offences, impaired driving, and murder. Mr. Dawson’s determination, skill, and creativity in the courtroom made him a force to be reckoned with.

Outside of his advocacy in the courtroom, Mr. Dawson was committed to improving his community and profession. As an advising lawyer for Student Legal Services for over 25 years, he always had time to consult and mentor students, often taking them under his wing if additional mentorship was required. This consulting and mentoring extended to his fellow lawyers as well. Mr. Dawson was known as a professional mentor, both officially and unofficially. He was an avid supporter of the arts, being heavily involved with the annual lawyers’ play and sitting on its Board. He was also a regular instructor with the Faculty of Law at the University of Alberta, the Law Society of Alberta, and the Legal Education Society of Alberta. He was also actively involved with the Edmonton Police Service cadet training program. Few in our profession have not directly benefited from Mr. Dawson’s knowledge and mentorship.

Most recently, in December 2021, Mr. Dawson’s contributions to the practice of criminal law were recognized by his peers when he was awarded the Harradence Prize from the Criminal Trial Lawyers Association. The Harradence prize is awarded to experienced counsel known for their work protecting the rights of accused persons, achieving the highest standards of advocacy, upholding the dignity of the profession, and encouraging and developing the recognition of the importance of due process of law in Canadian life and society.

For those who have enjoyed the benefit of knowing him personally, it’s hard to imagine meeting another person in this profession or elsewhere who matches Mr. Dawson’s heart, skill, and commitment to those around him. His presence will be missed in the courtroom and around the office. Dawson Duckett Garcia & Johnson continues to carry on his legacy in the zealous practice of criminal law and the defence of those who need it most.

Bail money on judge's bench

What You Need to Know About the Bail Program in Alberta

If you’ve been arrested, your biggest fear (aside from the possibility of a criminal record) is the prospect of remaining in custody. In Alberta, you have the right to a release hearing within 24 hours, but what if you have concerns about making bail? If you aren’t successful, do you have to stay detained until your case is resolved? 

The LAA Justice of the Peace Bail Program was founded in 2018 to simplify the bail application process for anyone arrested in Alberta. In this blog, we’ll explain your right to bail and how the Justice of the Peace Bail Program works.

The right to reasonable bail

Section 11(e) of the Charter gives a detained person the right to not be denied reasonable bail without justification. If the police charge someone and believe that continued detention is warranted, that individual has the right to a bail hearing within 24 hours, without any unreasonable delay. 

During the subsequent bail hearing, the judge or justice of the peace will decide whether the person should be released before trial and if so, under what bail conditions. 

What is the LAA Justice of the Peace Bail Program? 

The LAA Justice of the Peace Bail Program was founded in April 2018 and took effect across the province by September of that year. It ensures that anyone who has been arrested in Alberta and is making their first-appearance bail application will have access to defence counsel in the form of a Legal Aid lawyer.

Prior to the program’s enactment, only seven to ten percent of defendants had legal representation during their bail hearings. As a result, remand centres were often at capacity and hundreds of defendants had to put their lives on hold until their case was decided. Today, the program makes bail lawyers accessible to those who need or request advice, information, and representation, without financial eligibility requirements being taken into account.

Duty counsel lawyers in Calgary and Edmonton are available 16 hours a day (8:00 a.m. to midnight), seven days a week. They use video and audio technology to communicate with their clients via a secure electronic system, as well as video conference into the courtroom. In addition to adjourning matters, they make sure that clients understand their fundamental rights, including their right to a release hearing within 24 hours after remand.

How to apply for legal aid and obtain your own representation

When you are in police custody, the detachment can provide you with Legal Aid Alberta contact information so you can speak to a lawyer who can advise and/or represent you at your bail hearing. Even if you don’t qualify for Legal Aid or decide to represent yourself, bail lawyers can provide legal advice over the phone free of charge and duty counsel lawyers can provide in-person support in the courtroom.

Why is access to an Alberta bail lawyer important?

The bail hearing is the first step in the court process and, unless there is an error in law or a change in circumstances, you typically have only one chance at a bail hearing . Alberta criminal trials are significantly delayed at the moment and it can take months for your case to be heard. If you are not granted bail, you will have to await trial in a remand centre, unable to work and separated from friends and family. Even if you are granted  bail, you could be subject to highly restrictive conditions that impact your life.

There are many ways in which a lawyer can help you through the bail program. For example:

If the Crown prosecutor does not want you released on bail, your lawyer can advocate for your release. A lawyer can help negotiate the bail conditions for your release, with the goal of helping you avoid overly strict conditions that can be difficult to meet.

The next step after bail is a strong criminal defence

If you are granted bail, your next step should be contacting an Alberta criminal defence lawyer. At DDSG Criminal Law, we represent clients in a wide range of criminal matters and can advocate for you from the moment you are arrested until the day your case is resolved.

We have offices in Edmonton and Fort McMurray and regularly appear in courthouses across the province. Over the years, we have become familiar with the judges, Crown prosecutors, and police at these different locations and have the insights needed to mount the strongest defence against a criminal allegation. Contact us today for more information.

 

What are your rights when detained by police?

Interacting with police can be very intimidating and is a stressful experience for most people, but it is important to remember the constitution protects individual from state actions (i.e. a police investigation). There are certain rights that are specified in the Charter of Rights and Freedom that apply if you are detained by police.

When am I detained?

Being detained is not the same as being under arrest. It is a broader concept, and a person can be detained by police long before the handcuffs appear or a person is read their rights by police. Therefore, it is important to know what your rights are. Section 9 of the Charter protects against arbitrary detention, but police can detain someone with just a reasonable suspicion that a person – a suspect, or otherwise – may have some involvement with a criminal offence. Police can detain that person while they investigate what occurred. The key to a detention is that you are interacting with police and you cannot leave. If in doubt, ask the police officers if you are detained. If they won’t let you leave, you are detained.

Rights while detained

Because you cannot leave, detention is an infringement of your liberty. This infringement triggers certain rights that you should be aware of.

The Right to Remain Silent

The right to silence is a longstanding right that applies to any interaction with police. Aside from answering basic questions to identify yourself, when detained you do not have to answer any questions or provide a statement, whether incriminating or not. Exercising the right to silence cannot be used to infer guilt of a criminal offence. However, the right to silence is not a right to not be asked questions by police. Police have a job to do and are very proficient a getting people to start talking. To assert your right to silence, you have to keep your mouth shut.

There is a notable exception to this right that occasionally intersects with the criminal justice system. Under the Traffic Safety Act, the drivers involved in a traffic accident have a duty to provide information to police as to what occurred, which could result in self-incrimination.

The Right to be Informed of the Reason for the Detention

Police must tell someone why they are being detained. This right is enshrined in section 10(a) of the Charter. A detained person has the right to understand what is happening and the potential consequences of the interaction with police. If police cannot articulate a reason, the detention may be arbitrary and a violation of section 9.

The Right to Consult with a Lawyer, and the Right to be Informed of that Right

This right, protected under section 10(b) of the Charter, is actually a pair of rights. A detained person has the right to speak to a lawyer and the right to be informed of this right by police. Police must tell you that you can speak to a lawyer. If a detained person requests to speak to a lawyer, police must facilitate this right as soon as possible, within practical limits. This consultation with a lawyer usually occurs at a police station where there is a dedicated phone. Depending on the circumstances, police may neither permit the use of cellular phones at the scene nor permit someone to use a police-issued cell phone. Once a detained person has asserted the right to counsel, police are obligated to hold-off any questioning until after that person has had the right to consult with a lawyer. Police cannot ask questions, but they can passively note any statements made by a detained person prior to speaking to a lawyer. Once a detained person has spoken to a lawyer, police can begin asking questions.

A notable exception to this right is during an impaired driving investigation. Unlike during other detentions, this right does not apply to a suspected impaired driver at the roadside due to the serious dangers created by impaired driving. For a suspected impaired driver, this right is only engaged after the police have formed reasonable grounds and have arrested the accused.

The Right to not be Subject to Cruel or Unusual Treatment of Punishment

This right is protected under section 12 of the Charter and can suggest images of medieval torture methods. This right simply requires that police take care of any detained person. If police are going to take custody of person, police must ensure that person gets food, water, medical treatment, use of toilet facilities, protection from harm, etc. Whatever that person needs, the police have an obligation to provide it.

Right to Reasonable Bail

Under section 11(e) of the Charter, a detained person has the right not to be denied bail without justification. If police have charged an individual and determined that continued detention is necessary, that individual has the right to a bail hearing within 24 hours and without unreasonable delay. By default, continued detention is not appropriate – and the detained person should be released – unless the police can justify why a continued detention is required. Police provide their reasons for continued detention to a Crown Prosecutor. The detained person and the Prosecutor then appear before a Judge or Justice of the Peace, and the Prosecutor may attempt to justify continued detention. If the justification is insufficient, the detained person must be released from custody.

Common misconceptions and or myths of the criminal justice system in Canada

Television legal dramas are quite popular and can be very entertaining. Many of these dramas are American and can create misconceptions about the criminal] justice system in Canada.

In legal dramas, the timeline of the story is highly compressed. The time of the offence to the triumphant conclusion must fit within an hour television slot. Unfortunately, criminal justice is a much slower process that could take months or even years to reach a conclusion. This extended timeline is not necessarily a bad thing. Police must complete the investigation and provide everything to the Crown Prosecutor who assesses the evidence before proceeding with a charge. Prosecutors must then provide all the evidence to the accused, who can assess the strength of the case against them and prepare to defend themselves at trial. Although the passage of too much time may be detrimental, the criminal justice system should not be rushed.

Legal dramas have also created the myth that an accused has a right to have a lawyer present when speaking with the police. A television accused will often be seated next to a lawyer when the heroic police are attempting to get the accused to confess. In Canada, an accused only has the right to consult with a lawyer (i.e. a phone call), but not to have a lawyer present during any subsequent police questioning. This consultation is meant to provide an accused with an independent assessment of their legal situation, an explanation of any jeopardy an accused may be facing, and abridged legal advice on how to proceed. An accused will then have to face the police questioning alone.

Legal dramas often show an accused being arrested and read the “Miranda Rights”. These rights are routinely heard in movies and on television:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have a right to an attorney. If you cannot afford an attorney, one will be appointed for you.

Miranda rights stem from a 1966 decision of the United States Supreme Court. Miranda Rights are American and do not exist in Canada. Instead, in Canada police will read an accused the Charter rights followed by caution and will typically prompt an accused to answer four yes or no questions:

  • First, police explain why an accused is being arrested, then ask the accused if they understand. The accused then responds either yes or no.
  • Second, police explain an accused’s right to consult with a lawyer, then ask the accused if they understand. The accused then responds either yes or no.
  • Third, police ask whether an accused wants to speak with a lawyer. The accused then responds either yes or no.
  • Finally, police caution an accused that they are not obligated to speak with police, but that anything said may be used as evidence in court. Police will then ask the accused if they understand. The accused then responds either yes or no.

Although similar to the Miranda Rights, Charter rights reflect Canadian constitutional protections, as well as attempt to ensure an accused understands what is being said rather than simply being recited verbatim.

Another misconception is when police require a warrant to enter a home. Residences attract a high level of privacy protection and a warrant is needed when police want to search a home for evidence or arrest someone believed to be inside. Generally, police need the warrant to enter a residence, but like everything in Canadian law, there are exceptions:

  • Police can enter a residence without a warrant if they are in “hot pursuit” of a suspect who leads them inside the home. This type of situation is commonly depicted in movies and television, where police chase and eventually arresting a suspect following a dramatic foot pursuit. Although rare, this type of situation does occur in real life. When it does, police can enter a residence without a warrant. 
  • Police can enter a residence without a warrant if they reasonably believe a criminal offence is in progress. This type of situation is also commonly depicted in movies and television. Police do have this power in real life, but it is used sparingly as police risk losing the use of any evidence found within the residence. A potential situation where this police power could be used is if a 911 call reports a violent offence occurring within a residence. Police attend and have an obligation to enter to ensure the safety of anyone within the residence, preventing the perpetrator from simply answering the door and telling the police everything is fine. 
  • Police can enter a residence without a warrant if they receive informed consent. This type of situation occurs when police would normally require a warrant but are permitted to enter by an adult resident of the home, such as a spouse, roommate, or parent. 
  • Police can also enter a residence without a warrant if they have legislative authority. An example is the Fatality Inquiries Act, which allows police to enter a residence without a warrant if they have reasonable grounds to believe that a dead body is, or has been, located within the residence.

Differences Between the Canadian and American Criminal Justice Systems

Canada and the United States are similar in many ways. One such similarity can be found within our criminal justice systems, which both have their roots in the English common law system. However, there are many notable differences. 

In Canada, the criminal law is controlled by the federal government in Ottawa. The Canadian Criminal Code is a federal statute that applies in all provinces and territories. Individual provinces cannot introduce legislation that infringes upon the federal government’s constitutional authority over criminal justice. The purpose of this federal control is to ensure that the criminal law is consistent throughout the country. This is not the case in the United States, where each individual state has its own criminal code. As a result, a crime in one state may be subtly different in another state, which can create some issues given that there are 50 different criminal codes. There is some federal criminal jurisdiction in the United States, but the criminal justice system is largely under the control of the individual states. Comparing the Canadian criminal justice system with that of the United States is more of a comparison with a typical American state, but there will be variations amongst the individual states.

Many American states have rigid sentencing structures that are defined in their criminal codes, creating a set penalty for each criminal offence depending on the severity (first-, second-, or third-degree manslaughter, would each attract a different set penalty, as an example). If someone is convicted of a particular offence, they will receive the defined penalty. However, sentencing an offender in Canada is a much more fluid process. There are some offences in Canada that have a defined minimum – and all have a defined maximum penalty – but judges are given the discretion to craft an appropriate sentence that fits within the limits of these ranges. Many minimum sentences defined in the Criminal Code have been deemed unconstitutional subsequent to passage.  If you are facing a charge that includes a minimum punishment, consult with a lawyer to determine if it is still in force or in the process of being challenged.

The death penalty is another notable difference between Canada and the United States. The death penalty was officially removed from the Canadian Criminal Code in 1976 and the National Defence Act in 1999. The last execution in Canada occurred in 1962. The status of the death penalty south of the border is much more complex. The death penalty is used at the federal level, but each state, with its individual criminal codes, decides whether to impose the death penalty. Many states have abolished the death penalty, some long before Canada did. Michigan has notably incorporated the banning of the death penalty into its constitution. Other states still have the death penalty within their criminal code, but don’t impose it, while 14 states continue to actively use the death penalty. Although not explicitly stated, Canada – like Michigan – added constitutional protection against any future attempt to introduce the death penalty in 1982 when the Charter of Rights and Freedoms was added to the constitution. Among other rights, the Charter provides everyone protection to life, liberty and security of the person, as well as protection against cruel and unusual punishment.

Another interesting difference between the Canadian and American criminal justice systems is whether someone giving testimony is required to answer a question. The American constitution includes the fifth amendment that permits an individual to refuse to provide testimony to avoid incriminating themselves. This refusal is commonly referred to as “pleading the fifth”. You cannot “plead the fifth” in Canada. If subpoenaed, a witness is required to attend court and provide testimony. While giving testimony a witness must respond to all the questions put to them and cannot refuse to provide an answer. In fact, a witness who refuses to provide an answer can be held in custody until they are willing to answer the question. As the witness is being legally compelled to provide an answer, the response cannot be used against them later. By contrast, an accused is not required to provide testimony at their own trial but can testify as part of their defence. Since an accused is not being compelled to testify, the responses can be used to incriminate them. This said, the questions put to an accused can be restricted to certain areas related to the specific allegations against them, but in general, once an accused takes the stand, they must provide answers to all the questions. Whether or not to testify is one of the most important decisions an accused will make during the criminal trial process. It should not be taken lightly. If you have an upcoming trial, consulting with a lawyer is highly recommended in order to fully understand the consequences of this decision

Provincial Suspension Rules For Drunk Driving

Update April 2021: The AALS Program has been discontinued as of November 30, 2020 and has been replaced by the Immediate Roadside Sanctions (IRS) Program of IRS: FAIL.Any occurrences that occur on or after December 1, 2020 will now be administered under the IRS: FAIL Program. Learn more about this program via the Alberta government. 

 

On April 9, 2018 the new Alberta Administrative License Suspension law came into effect. This affects people who the police suspect have committed an impaired driving-related offence (such as impaired driving, driving with a blood alcohol content over 0.08, or refusing to provide a sample to a police officer).

What prompted this change to the law?

Before the April 2018 changes, drivers had their license suspended indefinitely upon being charged with impaired driving. This “administrative license suspension” under the Alberta Traffic Safety Act lasted until their criminal charge was dealt with. This meant that people who exercised their right to have a trial had to go without their license for the entire period before their trial date (which could be many months into the future).

In May 2017 the Alberta Court of Appeal found that this indefinite license suspension was unconstitutional. It subjected people to punitive sanctions upon the “mere charging of an offence, without regard to the presumption of innocence. The Court of Appeal declared Alberta’s law unconstitutional but gave the government one year to fix the legislation before the law would become non-operational. These new laws are the Alberta Government’s response to the Court of Appeal’s decision.

How does the new legislation change the administrative suspension regime?

Instead of an indefinite administrative license suspension, a person who is charged after April 9, 2018, is now subject to a two-phase suspension regime:

1. An absolute 90-day driving prohibition period, during which the person cannot drive under any circumstances; and

2. An additional 1-year driving suspension from the date of the charge. However, during this second stage, a person may be able to drive on a restricted license if they participate in the Ignition Interlock program for the 1-year period. If the person does not participate in the Administrative Interlock program, they are suspended from driving for a further 12 months after the initial 90-day period, for a total suspension of 15 months.

Technically speaking, the “trigger” for the administrative license suspension has also changed – instead of the suspension being the result of a charge under the Criminal Code, the trigger is now the police officer’s belief that an individual has engaged in certain impaired driving behaviors. In practice, however, the “reasonable grounds” standard is the same threshold for a police officer to charge someone with a criminal offence. So there is not much practical difference in the pre-requisite for the administrative license suspension.

What about people who were charged with an impaired driving-related offence before April 9th?

If a person was charged before the changes and has already served 90 days of administrative suspension under the old rules, they would be immediately eligible to apply for the Ignition Interlock program.

If a person was charged before the changes and has served less than 90 days on the suspension, they will be eligible to apply after they have served 90 days of the suspension.

Admission into the Interlock program is not automatic and a person must apply to the Transportation Safety Board in order to see if they are eligible.

Are there any exemptions from the administrative suspension?

It is not possible for a person to get an exemption from the Administrative Suspension law.

While not an exemption, an individual still has a right to appeal the administrative license suspension under section 39 of the Traffic Safety Act. There are strict timelines for this kind of appeal – it must be filed within 30 days. The grounds for an appeal are legally very strict, and employment or financial hardship is not a reason that the Board can take into consideration on an appeal.

What happens with the administrative suspension if a person pleads guilty or is convicted of an impaired-driving-related offence after a trial?

This new provincial law does not change the federal Criminal Code provisions that deal with driving suspensions after a person has been found guilty. If a person is convicted of an impaired driving offence, they are still subject to a mandatory driving prohibition under the Criminal Code. The Criminal Code states that the minimum driving prohibition is for one year from the date of conviction (and could be longer for repeat offenders or if the judge decides a longer prohibition is appropriate in the circumstances of the case).

The new changes to Alberta’s laws do not affect this criminal driving suspension. Nor does it change the Mandatory Ignition Interlock program that the Alberta government requires individuals to participate in to get their license back after a Criminal Code conviction.

Individuals who were on Administrative Ignition Interlock as part of the 1-year Administrative License Suspension, and are later found guilty will, at minimum, have to serve another three-month absolute driving prohibition from the date of their conviction (this period could be longer for more serious cases). They could choose to have the interlock device removed from their vehicle and re-installed later, or continue to pay the rental fees but be unable to drive. Either way, a person would have to apply and be accepted into the Mandatory Ignition Interlock program after the three-month period and complete all of the conditions of that program before regaining any driving privileges.

What about people who are found not guilty after a trial?

The administrative suspension is no longer tied to criminal charges, so it does not end with an acquittal. This means that if a person is found not guilty of an impaired driving offence at a trial, they will still have to serve the time remaining on their 15-month administrative suspension. It is very likely that there will be additional court challenges to this aspect of the new law.

Where can I get more information?

The Alberta Government provides information on the Interlock Program.

The laws surrounding impaired driving, and the related consequences to your license, are technical, complex, and continually evolving. The information on this site is not intended to be legal advice and is not a substitute for speaking with a legal professional. If you are facing an impaired driving charge or an administrative suspension, contact one of our impaired driving lawyers who would be happy to assist you

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Tania Shapka, Associate DDSG Criminal Law

How Does Cannabis Legalization Impact Past Convictions?

Cannabis became legal in Canada on October 17, 2018 with the introduction of the Cannabis Act. The Cannabis Act decriminalized cannabis to reduce the strain on the criminal justice system and allow for the legal sale of cannabis while keeping it out of the hands of youth, much like tobacco and alcohol products.

There were two major adjustments on the criminal justice system. First, an adult can now legally possess up to 30 grams of dried cannabis and share it with other adults. Second, there is now a regulatory framework for the legal production and distribution of cannabis so retailers can sell cannabis to consumers, essentially legalizing trafficking as long as the necessary permits and licence are obtained. However, the Cannabis Act did not address past convictions related to cannabis.

Bill C-93

A criminal record can negatively affected employment opportunities or the ability to travel. With the legalization of cannabis, many Canadians would like convictions for cannabis-related offences removed from their criminal record as the offences no longer exists.

Canadians were left with the regular process of waiting five or ten years to apply for a record suspension – commonly called a pardon – to expunge any convictions from their criminal record. However, in June 2019, the Canadian government introduced Bill C-93, the aptly named An Act to provide no-cost, expedited record suspensions for simple possession of cannabis. This bill created a streamlined process to remove convictions for simple possession of cannabis from a criminal record. Simple possession is a conviction under section 4 of the Controlled Drugs and Substances Act for possession of a controlled substance for personal use, rather than for the purposes of trafficking.

Under this streamlined process, anyone convicted of simple possession of cannabis in Canada can now apply for a pardon, also known as a Cannabis Record Suspension, without the requirement to wait five to ten years. This is not an automatic process and applicants must apply to the Parole Board of Canada. Applicants can apply for a Cannabis Record Suspension once any probation or custodial term is complete, even if a fine or victim fine surcharge remains unpaid. There is no cost to apply as the regular fee of over $600 has been waived. However, applicants may incur costs to gather necessary documents. The application must include sufficient documentation to show that the conviction was for simple possession of cannabis, which may require court documents or police reports in addition to a criminal record.

Do I  qualify for a cannabis record suspension?

A Cannabis Record Suspension only applies to simple possession convictions. It does not apply to other cannabis-related offences, such as trafficking or operating a vehicle while impaired by drugs. Applicants with other convictions on their criminal record, whether cannabis-related or not, cannot apply for a Cannabis Record Suspension and will have to apply for a regular pardon following the necessary waiting period. Applicants with past youth convictions for simple possession may apply for a Cannabis Record Suspension if a subsequent adult conviction for simple possession caused the youth conviction to remain on their criminal record. Without a subsequent adult conviction there would be no reason to apply because the youth conviction will be automatically removed from a criminal record following the corresponding waiting period prescribed by the Youth Criminal Justice Act.

Despite the legalization of cannabis possession, trafficking cannabis remains illegal unless it complies with strict regulatory guidelines. No provisions have been made regarding prior convictions for trafficking cannabis. To remove a past conviction for trafficking in cannabis from a criminal record, the applicant will have to follow the regular process for a pardon.

When a Cannabis Record Suspension is granted, like a regular pardon, the conviction is removed from the individual’s criminal record. There will still be a judicial record of the conviction, but it will no longer appear during a criminal record check. However, if the individual is subsequently convicted of an offence, the Cannabis Record Suspension could be revoked, causing the conviction to reappear.

More information, and relevant forms, can be found at the Government of Canada website.

If you have a legal matter that requires assistance, contact DDSG Criminal Law today. 

Questions To Ask Your Criminal Lawyer

Being charged with a criminal offence can be very stressful for many Canadians, and it is not an experience that most would like to repeat. It can be intimidating to navigate the criminal justice system on your own. A criminal lawyer can help by representing you throughout the process. If you have never interacted with a criminal lawyer before, it may be challenging to know what questions to ask. Like any other meeting, it is best to arrive prepared. Here are some questions you may want to ask:

What will happen with my personal information?

Your lawyer needs several personal details to open a file. Your lawyer needs to confirm your identity and ensure representing you would not be in conflict with another client. If there are any conflicts, you should be referred to another lawyer. Your lawyer is required to securely store your personal information for a period of at several years after the conclusion of the legal matter.

Is everything I say confidential?

Speaking to your lawyer goes beyond mere confidentiality and is actually protected by solicitor-client privilege. Lawyers have a professional obligation to closely protect all client communications and could be disbarred if they fail to do so. There are a few ethical exceptions to solicitor-client privilege, but it is unlikely that your situation will trigger one of these. Your lawyer needs you to be frank and honest during your discussions. This openness will help your lawyer represent you most effectively.

I don’t understand the documents the police gave me. What do they mean?

When you are charged with a criminal offence you have the right to obtain all police’ documentation of their investigation. These documents will specify details and dates that will help your lawyer understand your legal situation and develop an appropriate plan. This documentation is normally obtained from the Crown Prosecutors’ office, but some may have been served on you at the time of your arrest. Bring any documents in your possession to your first meeting with the lawyer.

I have been charged with a number of offences. What is the worst that can happen?

Each offence comes with a range of sentences, including a maximum possible sentence. Maximum sentences are often reserved for the most serious circumstances. Also, the sentence for some offences can run concurrently with others, rather than consecutively. Your lawyer can explain all of this. However, your lawyer may not be able to assess the likely outcome so early in the court process. Your lawyer will need to examine the disclosure provided by the prosecution to determine the strength of the case against you. If you have the disclosure package in your possession, be sure to provide it to your lawyer. If not, your lawyer can and will take care of acquiring it. After examination of the disclosure package, your lawyer will be in a much better position to provide an opinion on the likely outcome and a recommendation on how to proceed.

I have a job and can’t miss work. Do I have to attend court every time?

One of the documents provided by police will contain a date for the initial court appearance. There will be a number of subsequent court appearances depending on how the matter unfolds. One of the perks of hiring a lawyer is having someone attend court on your behalf so you can carry on with your life. However, some court dates will require your personal attendance. Your lawyer will let you know when you must attend court in person.

How can I get in touch with my lawyer?

Ongoing communication with your lawyer is very important. Lawyers cannot act without instructions and need to be in contact with you throughout your legal matter. In preparation for each court appearance, your lawyer may need to be in contact with you to go over some details. Make a plan with your lawyer to ensure they can get a hold of you, along with alternate means of contact if possible. Also, discuss with your lawyer how you can get in contact with them. Keep track of your scheduled court dates. If one is approaching, get in touch to stay up-to-date and see if your lawyer needs anything from you.

How much is this going to cost?

Financial details are very important and should be discussed from the very start of your relationship with your lawyer. Don’t be afraid to bring it up, just remember that a lawyer is paid for the legal services provided, not for the outcome of your case. Depending on your income level, your lawyer may be able to refer you to Legal Aid for financial support or other programs that may reduce your costs, such as Student Legal Services or Native Counselling Services of Alberta. For more information on hiring a lawyer and discussing fees, see our blog post.

To speak to one of our attorneys, contact DDSG Criminal Law today.

How To Prepare For A Disciplinary Hearing

Facing a disciplinary hearing can be a frustrating experience. The process can be damaging to your reputation and threaten your livelihood. As such, it is important to be thoroughly prepared.

Disciplinary hearing vs. criminal proceeding

There are several differences between a disciplinary hearing and a criminal proceeding, most notably disciplinary hearings may not be subject to the Charter of Rights and Freedoms. The Charter focusses on state power over individuals. If your employer or administrative governing body is not a government agency, your Charter rights might not apply. As an example, your employer may be able to search a locker or work computer to gather evidence without a warrant. Another important difference is that many disciplinary hearings operate on a different standard of proof than criminal proceedings. A criminal conviction requires proof beyond a reasonable doubt. Disciplinary hearings, by contrast, often only require proof that it is more likely than not that the allegation took place.

Despite these differences, disciplinary hearings must be procedurally fair. This should include the opportunity for an accused to present evidence, question witnesses, and argue their case before an impartial decision-maker (either an individual or a panel). Do not hesitate to insist upon procedural fairness.

Preparing for your disciplinary hearing

To prepare for a disciplinary hearing, the first step is to understand the allegations. The employer or governing organization must provide information regarding the purpose of the hearing. The allegation could be a breach of a workplace code of conduct, harassment policy, internet usage agreement or countless other violations. With the information provided by the employer, track down the corresponding source document to see if the alleged behaviour is actually a violation.

Understanding the allegations also includes how the case against you will be presented at the hearing, specifically what witnesses will be involved and what they will say. Insist on being provided copies of every statement or document available.

The next step is to determine if any resources are available. If English is not your first language, requesting an interpreter to help understand the accusations and follow the proceedings should be considered. A union may provide a representative familiar with disciplinary hearings or access to a lawyer. If applicable to you, get in touch and make use of any resources that are available.

The next step is to understand the procedures of the disciplinary hearing. Every organization will be slightly different, but many larger ones should have written policies for holding disciplinary hearings while smaller ones may not. The important thing is to gather as much information as possible on what to expect during the hearing and if anything needs to be done prior to the hearing, such as submitting a response, adding a defence witness, or filing evidence. Another procedural detail to make note of is any restriction on legal representation. A lawyer can help prepare for the hearing but may not be allowed to attend the hearing.

The next step is to prepare the case. The case will need to be crafted to suit the nature of the allegation and should consist of evidence, questioning and a closing argument:

  • Evidence: Evidence will usually be in the form of documents but could be any physical item. If any evidence exists that could counter the allegation, you will likely need to introduce it as part of your case. The disciplinary hearing should have procedures for introducing evidence, specifically what types of evidence can be accepted and what evidence will need to be authenticated by a witness. It will be important to understand the procedures if the evidence is part of the case.
  • Questioning: Prepare a list of questions for each witness. Questioning does not need to lead to dramatic inconsistencies in testimony. It is simply to ensure the testimony includes your perspective, such as by emphasizing the limits of a witness’ knowledge. Also, if you plan to mention something during your closing argument, be sure to question the relevant witnesses on the matter.
  • Closing Argument: The closing argument is the last chance to explain yourself. Although it comes last, it should be developed first. By knowing what you want to argue, you can work backwards to create your questions and gather your evidence.

The case is ready to be argued and it is time for the disciplinary hearing, however, the work is not done. Throughout the hearing, keep detailed notes throughout. Your notes could be the basis to launch an appeal if needed. You may want to consult with a lawyer if you are considering an appeal.

Is there a Statute of Limitations for certain Criminal Offences in Canada?

In Canadian criminal law, there is no universal statute of limitations, as people usually imagine it. That is, there is no specific piece of legislation preventing the police from charging someone with all offences after a specified amount of time has passed. In general, someone can be charged years after the alleged crime took place. However, there are exceptions.

Section 786(2) of the Criminal Code creates a limitation period that currently limits the initiation of a summary conviction prosecution if more than 12 months have elapsed since the date of the alleged offence. A variety of summary conviction offences can also be found in other pieces of legislation that may include a defined limitation period. For example, in Alberta, a six-month limitation period applies to offences under the Provincial Offences Procedure Act. This blog post will use the limitation period from the Criminal Code because it is the most relevant to the criminal justice system.

For criminal offences, there are two avenues for a prosecution to proceed: either by summary conviction (also referred to as ‘summarily’) or by indictment. The limitation period prevents police from charging someone with an offence that will proceed summarily more than 12 months after the offence took place. As the limitation period only applies to summary conviction prosecutions, it is important to understand what offences are tried summarily.

In Canada, there are three types of offences: indictable, summary conviction, and hybrid.

Indictable Offences

Indictable Offences (referring to offences that are purely indictable) are often amongst the most serious criminal offences and are prosecuted solely by indictment.

Examples of indictable offences are murder, kidnapping, and trafficking a substance listed in Schedule I or II of the Controlled Drugs and Substances Act. This type of offence can attract the most severe sentences, including life imprisonment in many cases. Indictable offences can be tried by either judge alone (at one of two different levels of court) or by a judge and jury together.

The limitation period does not apply to this type of offence. An individual can be charged with an indictable offence years – even decades – after the offence took place.

Summary Conviction Offences

Summary Conviction Offences (referring to offences that are purely summary conviction) are the least serious and are usually meant to be resolved more quickly. These offences are prosecuted summarily. They are tried by a judge with no option for a jury.

The maximum sentence for most summary conviction offences is a $5000 fine and imprisonment of less than two years, subject to other sentencing options such as probation, conditional sentence orders, and so forth. Causing a disturbance, public nudity, and carrying a weapon while attending a public meeting are examples of pure summary conviction offences.

The limitation period applies to this type of offence. An individual cannot be charged with a pure summary conviction offence once the 12-month limitation period has elapsed. There are relatively few of these offences in criminal law.

Hybrid Offences

Hybrid Offences can proceed either by summary conviction or by indictment depending on how the prosecution chooses to proceed. By assessing the circumstances of the alleged offence, and the individual involved, the prosecution can decide which option to choose.

If the offence was serious, causing damage or bodily harm for example, the prosecution may be more likely to elect to proceed as an indictable offence with the potential for a greater sentence. If the circumstances are trivial, the prosecution may be more likely to elect to proceed by summary conviction to have the matter concluded more quickly. The vast majority of criminal offences in Canada belong in this category, including impaired driving, theft, many types of simple drug possession, and assault.

The complication arises because it is the prosecutor that decided whether to proceed summarily or by indictment, not the police who charge the individual. If the police were to charge someone with a hybrid offence more than 12 months after the offence took place, the prosecution would be statutorily barred from proceeding summarily (unless the defence consents to that). However, the prosecution could simply elect to proceed by indictment to avoid the restriction of the limitation period.

How to proceed is within the prosecutor’s discretion and little justification for the decision is required. As such, an individual is only protected by the 12-month limitation period if the alleged offence is purely a summary conviction offence that cannot proceed by indictment.

If you’re in need of assistance, contact DDSG Criminal Law today. 

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What are my rights when speaking with police?

Interacting with police is usually the first stage of the criminal justice system and can be very intimidating for many Canadians. Police have the authority to maintain order and protect society, but that authority must be executed within the law. As such, Canadians have rights which police are obligated to respect. Your rights when speaking to police are drawn primarily from the Canadian Charter of Rights and Freedoms.

The Charter enshrined a number of rights. However, these rights are not absolute. The first section of the Charter is a caveat explaining that rights are subject to “reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.” This caveat includes the rights specific to interactions with police. To understand your rights when speaking to police, it is also important to understand when the police have the authority to infringe upon those rights.

To be clear, what follows is primarily applicable to adults. While many of the rights of young people (under 18 years of age) are similar and sometimes identical in scope, there are some significant differences that will come into play. For example, sometimes they have enhanced versions of certain rights, such as their access to counsel. In other cases, police (and certain adults) may have a greater than usual ability to interfere with their rights, such as when dealing with a disruptive child.

In the criminal law context, police interactions with adults usually occur on roughly three different levels. This post will describe those three levels generally. However, it is important to note that there are many exceptions to much of what follows – Canadian law can be surprisingly complicated, depending on the situation in which you find yourself.

No suspicion of illegal activity

The first level of police interaction is primarily about situations where police have neither suspicion nor a belief that you have been involved in any illegal activity. During these interactions you usually have several rights:

  • The right to remain silent – This was not created as a standalone Charter right, but the courts have found that it does, in particular, fall under the broad section 7 of the Charter. At its core, it is a very important principle when dealing with police, as it is one of the first protections against incriminating yourself. Police officers ask a lot of questions to gather information in order to effectively do their jobs – you should always remember that the answers you give can potentially be used against you. At this first level of police interaction, you usually do not have to answer questions from police.
  • Section 8 – The right to be secure against unreasonable search and seizure. This right goes beyond what most people think of as ‘searching’ and ‘seizing’ property, and is more about infringements upon your reasonable expectations of privacy. At this first level of interaction, police officers usually cannot search you, as they will typically have no legal basis to infringe upon your privacy at this point.
  • Section 9 – The right not to be arbitrarily detained. At this initial level of interaction, police officers typically have no authority to stop you and restrict your movement, which means that you can usually walk away. However, if it any point you feel as though police are infringing upon this right, you can ask them if you are being detained. If the answer is “no”, then the interaction is still at this first level and you can usually walk away. If the answer is “yes” the interaction has escalated to the second level.

As mentioned earlier, it is very important to note that there are sometimes exceptions to the above. They usually relate to certain, regulated activities – the most common being traffic safety.

For example, the police have the ability to randomly stop vehicles to check documentation, and other traffic safety-related matters. As a result of a recent change to impaired driving law, a new provision grants the police the power to conduct a breath test in a handheld device even when they have no reason at all to suspect that person may have alcohol in their body.

For the non-traffic context, another simple, everyday example may include an activity such as using the LRT – as many people have experienced, the police can check tickets.

As such, like these examples, there are some types of activities during which the police have greater than usual powers by virtue of what they are meant to achieve. If an individual refuses to cooperate during some of these police operations (such as, to use the examples above, by refusing to provide driving or vehicle documentation, refusing to provide a roadside breath sample, or refusing to show an LRT ticket), they run the risk of being charged. As such, unfortunately, these issues are not always as simple as they first sound.

Involvement in illegal activity

The second level of police interaction usually occurs when police have reasonable grounds to suspect that you have been involved in illegal activity (most courts have held that this relates to suspected criminal activity, although some courts have extended it to non-criminal, regulatory offences).

  • You still usually have the right to remain silent. However, it should be noted that, as was discussed earlier, there are some circumstances where you may be required to provide certain information – for example, providing documentation when stopped while driving or providing your identity if the police have observed you committing a ticketable offence.
  • Section 8 – Police officers usually do not have sufficient grounds to search you to a very invasive degree. In most cases, they can conduct a “pat down” search to ensure you are not carrying any objects that could threaten officer safety. That would usually be about the extent of it, unless they have a particular reason for a more invasive search.
  • Section 9 – Police have grounds to suspect you may be involved in illegal activity and detaining you is no longer arbitrary. They can legally restrict your movement and prevent you from leaving. If you are detained, additional rights are triggered.
  • Section 10(a) – The right to be informed promptly of the reason for detention or arrest. Police must explain why you are being detained, or at least provide enough information that they can reasonably expect you to know why you are being detained.
  • Section 10(b) – The right to retain and instruct counsel without delay and to be informed of that right. This is actually composed of a series of different rights. The first category deals with the obligation on police to inform you of this right and ask whether you do want to access counsel. The second category usually applies where if you do want to speak to counsel, and includes the obligations of police to provide you with a reasonable opportunity to do so and to hold off from trying to question you until then.

As noted earlier, there are sometimes exceptions to the above. Returning to the most common, the traffic-safety scenario, during most traffic stops a number of rights are suspended for a limited amount of time, including section 10(b). This means that the police can question you, demand a breath sample into a handheld device, demand that you do coordination tests, and more, even when they have not yet advised you of your right to counsel.

Committed an illegal act

The third level of police interaction occurs when police have reasonable and probable grounds to believe that you have committed an illegal act. This will often lead to an initial arrest – another form of detention – and a charge.

Once police have reached this stage, if you fail to identify yourself when they request that you do so, you very likely will be committing an offence – either criminal (for example, obstruction of a peace officer) or, in some cases, regulatory. However, it is very important to stop talking once any mandatory information like this has been provided. For example, if police start to ask you details about the offence that they believe you committed, you can almost always remain silent, subject to certain very specific exceptions.

  • Section 8 – Police officers now have greater power to search you, both to take you into custody and to find evidence. However, subsequent searches must usually be connected to the alleged offence. As an example, if you are arrested for a breach of a probation condition that required you to report to a probation officer, it would typically not be reasonable for the police to then search your vehicle for drugs.
  • Section 9 – The nature of the detention can change significantly. For example, in many cases, police will actually transport you back to a police station to do further investigation (such as attempting to question you), prepare paperwork, provide access to a lawyer, and more.
  • Sections 10(a) and 10(b) – If the reason for your detention has changed in a substantial way since you were previously informed of the reason, the police usually must inform you of the change and provide you with your right to counsel again. If the police did not advise you of your right to counsel during an initial detention (for example, in the traffic-safety scenario noted earlier, because some of your rights were suspended), they should do so at this point. If you are being arrested, it is usually wise to take the opportunity to speak to a lawyer (for some offences, this can result in an overall delay to when the police release you; however, the reality is that it is usually better to err on the side of caution when it comes to speaking to a lawyer at this time).

As can be seen above, these issues are surprisingly complex, and your rights may be different in one situation from the next. If you are ever uncertain about what you can or can do, the safest approach is to call a lawyer wherever that is possible – they will always be in the best position to advise you based upon the specifics of your situation.

Need help? Contact DDSG Criminal Law today to speak to one of our attorneys.