TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you to take a Breathalyzer test.

Do you have a right to refuse the Breathalyzer test?

Although the officer cannot physically force you to take a Breathalyzer test, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.

PEACE BONDS UNDER SECTION 810 CRIMINAL CODE: SHOULD YOU CONSENT?

I've been running a law blog for the last few years called The Barrister Brief. There's one post that has eclipsed all others in popularity. Nothing else even comes close on views, which I suppose tells us something about the most burning criminal law questions that Canadians harbour. Here it is:

I regularly assist clients with "peace bond" problems. These are orders under s. 810 of the Criminal Code that can subject you to "keep the peace and be of good behaviour for any period that does not exceed twelve months,  and comply with such other reasonable conditions prescribed in the recognizance" such as prohibiting you from being at or within a specific distance of a place, or prohibiting you from communicating directly or indirectly with a particular person. 

A justice of the peace (or judge) can impose a peace bond on you when a person demonstrates that he or she has reasonable grounds to fear that you "will cause personal injury to him or her or to his or her spouse or common-law partner or child or will damage his or her property." A mini-trial is actually held by the court to determine if the peace bond should be imposed - that's why you really need legal counsel to defend you if you receive a notice that someone is seeking a peace bond against you. 

Being subject to a peace bond is a lot like being on bail. Peace bonds make conduct illegal that was previously perfectly legal. Like sending an e-mail or text to someone. Or attending at that person's place of work or home. 

Breach of the peace bond can lead to serious criminal consequences. There's some debate among Canadian criminal lawyers over exactly which punishment provisions apply to peace bond breach, as s. 810 of the Criminal Code doesn't itself stipulate any specific punishments, but up to 2 years imprisonment seems a definite possibility for peace bond breach pursuant to s. 127 of the Criminal Code, which is a catch-all punishment provision for disobeying a court order. 

Refusing to enter into the peace bond recognizance, after it has been ordered by the court, can also get you up to 12 months in jail. 

The fact you have been ordered to enter into a peace bond (even if you consented) also winds up on police databases, potentially for the rest of your life. No, it's not a "criminal record," but it does at times convey the impression that you were up to no good, and thus the peace bond was ordered to protect someone from you. 

Pace bonds are serious business, so you need to know when you should and should not be thinking of voluntarily entering into them. 

When voluntarily entering into a peace bond can be a good idea: if you are being prosecuted for criminal offences under the Criminal Code, and instead of the Crown proceeding with the prosecution you are offered the alternative of voluntarily entering into a peace bond, such an offer is usually a good deal that you should jump at. 

Do get some legal advice before consenting in such a situation. Even if you are representing yourself on the charges to which the peace bond is an alternative, "duty counsel" at the court house may be able to give you some summary advice. Here the peace bond is way better than being convicted of a criminal offence after trial, and also way better than receiving an absolute or conditional discharge as a sentence. 

When voluntarily entering into a peace bond can be a bad idea: if you aren't facing any kind of criminal charges, and instead have a peace bond application dropped on you by your neighbour/co-worker/family member. In these cases, there has been no government filter (like the police or prosecution service) involved in deciding whether a peace bond application should proceed. Instead, this is effectively a private prosecution which might have no basis in reality whatsoever, and where you can essentially be found guilty on a balance of probabilities standard, not on proof beyond a reasonable doubt. 

If you aren't facing other court proceedings that will be halted by a peace bond, you shouldn't consent to it just to avoid the hassle of a court hearing on the bond. The whole peace bond hearing will probably only take somewhere between half a day and a day in court, you will get to agree on the hearing date set for several months in the future, and most importantly you are entitled to written disclosure of the factual allegations which supposedly support the peace bond. Obtaining disclosure gives you a chance of preparing a defence to the allegations through gathering together your own evidence to present to the court - including the calling of your own witnesses who can explain why the allegations just aren't true. 

The moral of this story is that peace bonds are tricky contradictory creatures, part of the criminal process, but granted on a civil standard of proof, heard in the criminal courts, but usually pursued by a private individual rather than a government prosecutor. Some people steadfastly refuse to consent to peace bonds even when it's in their best interests to consent, and other people readily consent even though it is unlikely any court would grant a peace bond against them because of the shoddy evidentiary foundations upon which the peace bond allegations are based. The first type of overly refusing people should take more seriously the advice their lawyers are trying to give them; the second type of overly consenting people should seek out legal advice before agreeing to something that could have a significant future impact on their lives.

MAKING BAIL: FOUR TIPS TO MAXIMIZE YOUR CHANCES FOR THAT GET OUT OF JAIL FREE CARD

Other than being charged, making or not making bail may have a greater affect on the outcome of your criminal case than any other factor. Greater than the evidence investigators claim to have amassed against you. And even greater than what transpires at your trial.

Our constitutional law is rife with assertions that you are presumed innocent until proven guilty, and that you've got a right to a trial within a reasonable time. There's a less well known provision contained in s-s. 11(e) of the Canadian Charter of Rights and Freedoms which affirms that "Any person charged with an offence has the right ... not to be denied reasonable bail without just cause." But don't make the mistake of thinking this provision means that you're almost guaranteed to make bail if you don't have a horrible criminal record and aren't already out on multiple other bail releases.

The Crown frequently demands that people accused of offences be detained in custody pending trial. Even for people with no criminal records. Even for people not already out on another bail. And even for people not accused on the most serious criminal offences. The ultimate release decision rests with the Court, not the Crown, but if the Crown demands your detention then you're facing a contested bail hearing. You should make sure you have a lawyer for such a hearing, regardless of whether it is legal aid duty counsel, or a privately retained lawyer (I serve in both roles from time to time).

Unfortunately, Parliament has set up a complex set of provisions in the Criminal Code governing the tests which must be met to make bail, the evidence admissible at a bail hearing, and on whom the onus falls - Crown or defence - to establish the tests. What this means for you or your loved one who is locked up awaiting a bail hearing is that you need a strong bail plan to present to the court, and you need evidence to back up it. Promises simply to behave usually just won't cut it alone.

So the tips I can offer you to maximize your chances for that get out of jail free card are:

TIP #1: Contact one or two "sureties" who can be present at the bail hearing to vouch for you, and agree to supervise you during your release pending trial. They're like civilian jailers, who keep an eye on whether you're obeying your conditions, and pledge to call the police if you breach. They also usually pledge a sum of good conduct money, but usually without any upfront deposit. If you're able to, start calling potential sureties as soon as you've been arrested, as you might have trouble getting hold of them, and everyone you call might not want to act. Or ask your lawyer to make the calls.

TIP #2: Figure out if you have some cash available for a bail deposit. While we don't do massive bail bonds in Canada as happens in the U.S. (where a bondsman essentially lends you a large amount for bail), the courts do always appreciate some cold hard cash as a behaviour incentive while on bail. It's almost always required if you're from out of province or out of country from the place you're accused of committing an offence in. Any amount from $1,000 to $100,000 can be useful (higher amounts of cash are possible, I suppose, but I have only personally seen no deposit sureties go higher, like when someone pledges a house).

TIP #3: Present a release plan that will keep you out of trouble while on bail.This plan could range from anything like where you will be working or attending school, up to a curfew, and even 24 hour per day house arrest with never leaving the house without your surety. Generally, the more serious the accusations, and more of a record or other releases you have amassed, the more the need for stricter release conditions.

TIP #4: Gather together documentary evidence to support your sureties and release plan. So if you claim to be working somewhere full time, ask your boss for a letter to confirm this. If your mother intends to pledge $20,000 in your favour for your release, obtain her title documents for her house proving what she owns, how much it is worth, and how much of a mortgage sits on it - great precision here isn't required, but something is usually necessary beyond the simple word of your surety.