Criminal Law

RIGHT TO REMAIN SILENT

All persons have the right to remain silent. This is a basic right protected under the Charter of Rights and Freedoms. This means if your arrested by the Police for committing an alleged offence, you have the right to remain silent and you cannot be compelled to say anything to the Police or any investigating authority in answer to the charges against you or provide a statement to the Police or other authorities. This important right is there for your protection, to ensure you will be forced into making any self-incriminating statements that could be used against you without your consent.  Exercising your right to remain silent is not an interference to any investigation into the occurrence of an offense and exercising this right cannot be held against you during any proceedings arising later.

RIGHT TO SPEAK WITH A LAWYER

Further, when you are arrested and charged with committing an offense by the Police you have the right to speak with and obtain legal advice from an experienced criminal defense lawyer before saying anything to the police or comply with any demands made by the Police. You should in all instances where you are being charged with an offense require the Police to allow you to exercise your right to speak to a lawyer before consenting to offer any information.

Remember that a criminal defense lawyer has a legal obligation to maintain and protect your legal interests. They are experienced and is the best party to advise you on what your legal rights are and to advise you on what you are legally required to do to cooperate with the Police in their investigation.  

One of the most common misconceptions is that you have the right to one phone call.  In fact, in Canada this is not true. In Canada you are to be afforded a reasonable opportunity to speak to a lawyer and this means that you can try a number of times as long as you are making reasonable efforts to contact a lawyer to obtain advice.

DRINKING AND DRIVING

If you are stopped by the Police on the road side and if the Officer, conducting the stop, based upon his or her observations of you and or upon any statements made by you or other factors that he or she has observed or has been informed of, has reasonable grounds to suspect that you may have alcohol in your body and that you were within the preceding three hours driving a motor vehicle, then the Officer has the right to investigate further and the Officer may ask you to perform physical coordination tests or to provide a sample of your breath forthwith into an approved screening device to determine if there is alcohol present in your system.

An Officer is not required to give you the opportunity to speak to a lawyer before requiring you to submit to physical coordination tests to provide a sample of your breath into the approved screening device.  However, the tests must be conducted forthwith and as soon as practicable.

The results of the approved screening device may, along with any other observed indicators of impairment, be relied upon by the Officer to form an opinion upon reasonable grounds that you have committed an offence of driving while your ability was impaired by alcohol and as a result may require that you provide a suitable sample of your breath, pursuant to Section 320.28 of the Criminal Code, into an approved instrument operated by a qualified technician necessary to complete an analysis of your breath as soon as practicable after the demand is made by the Officer. At this point in the investigation the Officer must afford you a warning and advise you of your rights as set out in the Charter of Rights and Freedoms which includes, the right to remain silent and the right to speak to a lawyer and obtain legal advice before giving the sample of your breath.

The results of the sample of breath taken after a lawful demand is made and a reasonable opportunity speak to a lawyer has been complied with the Officer may then formally charge you with either or both of the criminal code offenses under Section 320.14 of the Criminal Code.

When you are charged with a criminal offence by a Police Officer, the rights prescribed under the Charter of Rights Freedoms including the Right to Remain Silent and the Right to Speak with legal counsel are triggered and you have the right to invoke your rights before submitting to any further investigative processes including the making of any statement to the Police or to answering of any questions by the Police.

Therefore, it is always in your best interest to answer yes to the questions of whether you wish to remain silent and yes to use the opportunity to speak with a lawyer before agreeing to comply with a demand for a suitable sample of breath under Section 320.28 of the Criminal Code. Even if you do not personally know a criminal defense lawyer in your area, you can and will be provided access to a lawyer referral number by the police along with a phone book or a 1-800 number to access free consultation with a criminal defense lawyer to obtain legal advise.

If you chose not to speak to a lawyer or if you waive your right to speak with a lawyer or waive your right to remain silent during the investigation anything you say can and will be used against you in future court proceedings relating to those criminal charges and the Police may move their investigation directly to the stage of demanding a breath sample form you to determine the concentration of alcohol in your blood and to use the results at trial of any charges brought against you.

LICENCE SUSPENSIONS

If you are charged with a drinking and driving offense your driving privileges are immediately suspended under the Alberta Provincial Traffic Safety Act and you may not drive a motor vehicle in Alberta until your criminal charges are resolved in Court.

Further, the vehicle that you were operating will be seized by the Police and held in storage by the Police for up to 30 days and will not be released except to the registered owner of the vehicle upon presentation of proof of ownership and payment of storage fees.

COURT

If you are charged with an offense under the Criminal Code you will be required to attend court in the local jurisdiction where the offense occurred. The date and time of the court appearance will be noted on the Summons that is served upon you by the Police at the time of your release.  You will also be required to attend at the local Police detachment where the offense occurred to provide a copy of your fingerprints. The date and location and time for when you must appear to provide your fingerprints will also be located on the Summons that the Police serves you.

It is always in your best interest to seek out and obtain legal advice when you have been charged with a criminal offense so that you can obtain competent legal advice with respect to the charges you face before appearing in court.

The laws regarding drinking and driving in Canada are constantly changing and the consequences of a conviction for drinking and driving can be very harsh. Only an experienced criminal defense lawyer can properly assess the Crown's case to determine whether you may have a viable defense to the charges.

BAIL

If you are charged by the Police with a criminal offence whether under the Criminal Code of Canada, the Controlled Drugs and Substances Act, or the Young Offenders Act, you have the right to be released upon your own recognizance to appear in Court when required to answer to the charge unless the Crown can demonstrate why you should not be released on your own recognizance and why your detention pending trial is warranted. 

To demonstrate why you should be detained before trial, the Crown has to be able to convince the Court that due the seriousness of the offence as charged against you, your detention is necessary to protect the public and/or the victim or show that there is a clear risk that you would not attend court as required to answer to the charge.

The onus is upon the Crown to show cause to hold someone in custody pending trial upon arrest unless that individual is charged with committing an offence while on recognizance pending trial on a previous matter where they were charged with a criminal offence. 

You have the right to request from the Crown a copy of the Crown Bail disclosure before speaking to your Bail and you should always speak to an experienced criminal defence lawyer prior to deciding to speak to your interim release ie., Bail when charged with a criminal offence.