Frequently Asked Questions
The most important thing to remember is that you have a choice as to whether you say anything to the police -- in that initial phone call, and in any subseuqent meeting. Anything that you say to police could be used against you in later criminal proceedings. The police might call you for a number of reasons. Among those reasons, you may be a potential witness or source of information for an investigation. You may also be a suspect. At the moment that the police call you, you don't know what they really want or what they might be seeking to do with any information that they want. And whatever the police tell you might not actually delineate or restrict what they ultimately do with any information you give them. Given this lack of information on your part, you do not really understand the implications or potential conseqeunces of telling the police anything during that initial call. To exercise your choice to speak or remain silent properly, it has to be an informed choice. You need to take the steps to get informed.
Unless it is an emergency situation where, for example, the police urgently need some specific information from you in order to save someone's life or prevent some kind of disaster or tragedy, there is nothing wrong with dealing with a call from the police in the following way.
Ask the police to explain what they are calling about. Listen and take note of what the police say. Get their contact information as well. This should include the officer's name and badge number, direct phone number, and email address if possible. Without agreeing to any kind of meeting or interview, you can then let the police know that you're going to consult with a lawyer, and that you or the lawyer will get back to them promptly. This is an approach that should be acceptable to the police even if they are calling to tell you that you are being charged with an offence and must turn yourself in. If the police needed you to be arrested immediately, they would already be arresting you, instead of just calling you. After concluding the call from the police, call a criminal defence lawyer. You'll get advice on exercising your right to silence, and what you should do next, and can then have the lawyer respond to the police on your behalf. Having the lawyer do the talking ensures that you don't say anything to police that might be used against you.
You should never be receiving blanket "advice" from anyone -- lawyer or otherwise -- to never say anything to the police.
If the police are contacting you as a potential witness, then that kind of advice might constitute the crime of obstructing a police investigation. Also, as a potential witness, you may very much want to help the police in solving a terrible crime or apprehending a dangerous person, instead of staying silent. Furthermore, there are certain situations where you are required by law to say things to the police or to other officials, like the duty to report an accident under the Hughway Traffic Act. Getting advice from a lawyer will help you navigate these situations correctly.
Lying to the Police Can Get You Charged With a Crime
Your right to silence is constitutionally-protected. A criminal defence lawyer can explain how to exercise this right and the factors at play in determining whether you should. One thing you should not do is lie to the police. You have the right to remain silent, but not the right to lie. Lying to the police can get you charged with obstructing police, public mischief, or other offences, depending on the specific situation.
The Bottom Line
It's up to you what you say and whether you say anything if the police call you, but the best way to make an informed decision is to find out what the call is about, get contact information, tell police you're going to consult with a lawyer and get back to them, and then call alawyer for advice.
First, understand that these different offences carry the same minimum penalties: a driving prohibition for at least one year, and a fine of at least $1000. Convictions for either offence give you a criminal record. If you are found guilty of both of these offences for the same incident, you will only be sentence/punished for one of them, due to the operation of the Keinapple Principle (which we won't discuss here). That means that if you're facing both of these charges at trial, it doesn't do you any good to be acquitted of one but found guilty of the other. You've got to defeat both of them.
The offence referred to as "impaired operation" is under 320.14(1)(a) of the Criminal Code. It is a criminal offence to have care and control of vehicle while your ability to drive is impaired -- to any degree -- by alcohol. You don't have to be drunk for the offence to be proven. If the alcohol in your system is affecting your ability to drive in any way -- by slowing down reflexes that are necessary for safe driving, or affecting your ability to focus to a degree that it affects your driving -- then you're committing the offence. This impairment could be proved by your blood-alcohol concentration, but it would require the additional evidence of a toxicologist who could opine that your specific BAC would have impaired your ability to drive at the time. Most often, impairment of the ability to drive is proven by other evidence, such as observations your driving behaviour, observations of poor balance or slurred, a decreased level of consciousness, the odour of an alcoholic beverage coming from your breath, confusion, or any number of other things that might logically support an inference that your ability to drive is or was impaired by alcohol. Usually, proof of impairment requires a number of these factors, as any single observation might not lead to a conclusion of impairment to the exclusion of all other explanations. Your defence against this kind of allegation might include presenting evidence explaining the non-alcohol related reasons for the bad driving or other observations. The video evidence of the police interactions with the accused person, and the accused's own testimony explaining what happened, are usually key determinants in the outcome of a trial for this charge.
The offence of having a blood-alcohol concentration above the legal limit is set out under 320.14(1)(b) of the Criminal Code. The legal limit is now 79 milligrams of alcohol in 100 millitres of blood. If you're at or above 80 within two hours of having care and control of a vehicle, you're committing the offence (the offence used to be referred to as "Over 80" back when the limit was 80, but this was changed in 2018). The exceptiuon to this is if the accused's BAC was not above the legal limit at the time of being in care and control of a vehicle, but it increased due to post-driving consumption. Certain preconditions need to be met in order for this defence to succeed. The offence itself has nothing to do with how drunk or sober you seem to be, although the police are required to have reasonable and probable grounds to believe you have committed an offence under ss. 320.14(1)(a) or (b) of the Criminal Code in order to require you to provide the breath or blood samples that will prove your BAC. The defence against this charge often centres on whether the police conduct leading up to the seizure of breath or blood samples was constitutionally compliant. Other issues can include whether there's proof of when the accused was last in care and control of a vehicle, and whether there was involuntary (unknowing) consumption of alcohol. It is not a defence to say that you thought, based on the amount of alcohol consumed and the passage of time, that your BAC was under the legal limit.
For more information the above, visit our Impaired Driving page or contact Tyler MacDonald.
When you are being prosecuted for a criminal offence, the Crown is required to provide to you all information or evidence that has been gathered in the course of the police investigation and prosecution against you. This is referred to as "disclosure" because it relates to information that the Crown is obligated to disclose to any accused person. In addition to information gathered in the course of the investigation or proseuction, the Crown also has to disclose any information in its possession (which includes anything in the possession of the investigating police service) that is not "clearly irrelevant" to your case. This could include information already existing in police records that might be useful to you in defending against the charges, such as reports about a witness against you committing crimes of dishonesty in years past. The obligation to disclose applies not only to information that tends to incriminate you or prove the Crown's case against you, but also any information or evidence tending to exculpate you or show your innocence.
The obligation to disclose begins immediately, but it can takes weeks or months for the Crown to provide an initial disclosure package, and even longer to complete the disclosure process. Sometime initial disclosure is provided before the first court appearance, sometimes it is provided long after. The key to obtaining timely disclosure is making a request for initial disclosure as soon as possible after being charged, following up on the request, and identifying what's missing from initial disclosure so that a timely request can be made for the outstanding items.
Yes, but whether the prosecution withdraws the charges in your case will depend on the specific circumstances. Prosecutors work within a bureaucracy, so they are bound or guided by various policies and directives that might limit when and whether they can withdraw a charge in a certain situation. The personality and seniority of the individual prosecutor, and the person that he or she reports to, are also factors affecting whether they are willing to withdraw a particular criminal charge. However, no matter what the situation, it always helps to be able to show the prosecution the weaknesses in its case, and what's at stake for all the people involved (the accused, the alleged victim(s), and everyone else affected by the prosecution). Glaring weaknesses in the Crown's case -- as may be demonstrated by a recanting witness, a serious Charter violation, or ha ole the evidence around proof of an essential element of the offence -- may mean that there is no reasonable prospect of conviction. In such circumstances, the Crown is not supposed to proceed with a prosecution. Apart from the prospects of conviction, prosecutors also consider the public's interest in the matter proceeding. If the actual harm done by the offence is minimal or has already been remedied, or none of the affected parties are interested in the prosecution of the charge proceeding, or the circumstances of the accused mean that the impact of the criminal proceedings alone are particularly onerous, these are all factors that may weigh the Crown toward a conclusion that it is not in the public interest to proceed with the prosecution.
Whatever the situation, it is essential to be able to thoroughly assess the strengths and weaknesses of the Crown's case, and to be able to effectively present information related to all of these factors during the pre-trial discussions with the Crown, and with the the Crown and a judge through a judicial pre-trial. These candid discussions are key events that can lead to the Crown deciding to withdraw a criminal charge.
Tyler MacDonald may represent certain clients through a Legal Aid Ontario retainer, depending on the circumstances of the case. Contact the office to determine whether this is possible for a particular case. You should know that it is not the law in Canada that you have a right to be represented by a lawyer to defend against a criminal charge. Legal Aid Ontario sets its own criteria for whether you are eligible for assistance.
The allegations and circumstances of every case are different. For each client, a customized approach must be taken to reach the best possible result. The retainer fee will depend on the complexity of each case and the circumstances and objectives of each client. A free consultation with Tyler MacDonald is the best step toward determining the appropriate retainer fee for your case.
Mr. MacDonald provides representation against all charges under the Criminal Code of Canada and the Controlled Drugs and Substances Act. These Acts contain the most serious offences for which a person may be prosecuted in Canada, and result in the most severe sentences and penalties if a person is found guilty. Findings of guilt under these Acts will result in a criminal record if you are sentenced to anything other than a discharge (the lightest possible sentence).
You, or a young person you know, may fall under the Youth Criminal Justice Act when you are charged. The criminal charges in this case still come from the Criminal Code of Canada or the Controlled Drugs and Substances Act, but the Youth Criminal Justice Act applies special rules and procedures when dealing with people who were under the age of eighteen. The Crown must still prove the charges in the same way it would have to prove the charges against an adult. The potential sentences, however, are much different, and the adult penalties generally do not apply. Proceedings under the YCJA are also different when it comes to bail, and different legal tests apply.
You may also be charged with offences under a wide array of provincial and federal Acts. These include the Highway Traffic Act, the Income Tax Act, the Immigration and Refugee Protection Act, and the Compulsory Automobile Insurance Act. While being found guilty of some offences under these Acts may not result in a criminal record, sentences of imprisonment, severe fines, seizures of property, and other crippling penalties may be ordered or imposed. Prosecutions of these charges can lead to trials which look much like criminal trials, but the standard of proof that the Crown must meet and the procedures for establishing that proof can be much different than when trying to prove a criminal charge. Some charges under these acts actually put the onus on you, the accused, to positively prove some element in order to avoid being found guilty.
Mr. MacDonald defends against all charges -- period.