AVICTIM'SGUIDE TO THE CANADIAN CRIMINAL JUSTICE SYSTEM by wqs99947

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									A VICTIM'S GUIDE TO THE
  CANADIAN CRIMINAL
    JUSTICE SYSTEM
This brochure is designed to assist victims dealing with the aftermath
of an alcohol or drug-related crash. We hope that this booklet will be
     of value to you, and comfort you during this difficult time.



        MADD Canada (Mothers Against Drunk Driving)
            2010 Winston Park Drive, Suite 500
                 Oakville, ON L6H 5R7
              TOLL FREE: 1-800-665-6233

        Phone: 905-829-8805              Fax: 905-829-8860
        Internet: www.madd.ca            E-mail: info@madd.ca

                                June 2009


           Supported by a grant from The Law Foundation of Ontario
                         TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

SECTION I: ROLES IN THE CRIMINAL JUSTICE SYSTEM . . . .3
Coroner . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Police . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .3
Crown Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
Defence Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
Judge and Jury . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
Victims and their Families . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
  (i) Testifying as a Witness . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
  (ii) Courtroom Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
  (iii) Information Provided to Victims and their Families . . . . . . . . . . . . .9
  (iv) Victim Impact Statements . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .9

SECTION II: FEDERAL IMPAIRED DRIVING LAW . . . . . . . . . .13
Federal and Provincial Authority . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
The Scope of the Federal Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13
Gathering Evidence of an Impaired Driving Offence . . . . . . . . . . . . . . .14
 (i) Breath Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
 (ii) Blood Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17
 (iii) Roadside Physical Coordination Testing . . . . . . . . . . . . . . . . . . . .18
 (iv) Drug Recognition Evaluation (DRE) Testing . . . . . . . . . . . . . . . . .20
The Federal Impaired Driving Offences . . . . . . . . . . . . . . . . . . . . . . . . . .21
 (i) Impaired Driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
 (ii) Driving with a BAC Above .08% . . . . . . . . . . . . . . . . . . . . . . . . . .23
 (iii) Impaired Driving Causing Bodily Harm or Death . . . . . . . . . . . . .23
 (iv) Driving with a BAC Above .08% and Causing
      Bodily Harm or Death . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
 (v) Failing to Provide a Sample or Participate in
      SFST or DRE Testing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
 (vi) Failing to Provide a Sample or Participate in SFST or DRE
       Testing, and Causing Bodily Harm or Death . . . . . . . . . . . . . . . . .26
 (vii) Driving While Prohibited or Suspended . . . . . . . . . . . . . . . . . . . .26
Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
 (i) The “Carter” Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
 (ii) The “Last Drink” Defence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
 (iii) Narrowing the Defences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
The Penalties for the Impaired Driving Offences . . . . . . . . . . . . . . . . . . .29

SECTION III: THE PROCESSING OF CASES . . . . . . . . . . . . . . . .34
Pre-Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35
Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Publication Bans . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37

SECTION IV: CORRECTIONS AND PAROLE . . . . . . . . . . . . . . . .40
Corrections . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
The Parole Board . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .40
Conditional Release . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .41

SECTION V: VICTIMS’ RIGHTS LEGISLATION . . . . . . . . . . . . . .44
Criminal Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Victims’ Bill of Rights Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
Victims’ Compensation Legislation . . . . . . . . . . . . . . . . . . . . . . . . . . . . .45

SECTION VI: GLOSSARY OF TERMS . . . . . . . . . . . . . . . . . . . . . . .46
R. Solomon, Faculty of Law,             C. Lynch J.D. and L. Towell J.D. Candidate,
University of Western Ontario and       Research Associates, MADD Canada
Director of Legal Policy, MADD Canada   LL.B. Candidates
             A VICTIM’S GUIDE

INTRODUCTION
   This booklet provides an introduction to the Canadian criminal justice
system for victims of alcohol or drug-related traffic crashes. It addresses
situations in which the impaired driver is apprehended and charged.
However, in some cases, no charges are laid because the impaired driver
has died or fled, or there was insufficient evidence to lay charges. In these
cases, the recovery process for victims and their families may be more
challenging.
   A criminal prosecution is not a dispute between individuals, despite the
fact that it often involves one person harming another. A crime is an
offence against society. This is why the Crown initiates and controls the
criminal prosecution against the “accused,” who is the person charged
with the criminal offence. It is important to distinguish a criminal
prosecution from a civil suit, which the victim initiates for the purpose of
obtaining compensation for his or her losses.
   This booklet is designed to provide basic facts and advice about the
Canadian criminal justice system and your role in it. We urge you to
contact your local MADD Canada chapter or the local police department
for specific information on the procedures and practices in your province or
territory. For more information about MADD Canada’s victim services
and support programs, call 1-800-665-MADD (6233) or visit our website
at www.madd.ca.




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2
 SECTION I: ROLES IN THE CRIMINAL
          JUSTICE SYSTEM
Coroner
   Each province and territory has an office of the Chief Coroner and a
network of local coroners throughout the jurisdiction. The local coroner is
a practicing physician who has the authority to investigate all unnatural
deaths, including those resulting from traffic crashes. In order to carry out
their investigative duties, coroners are given authority to order an autopsy
regardless of the wishes of the deceased’s family. The coroner may also
seek information from the victim’s family, doctors, hospital records, and
the police.
   A death certificate is completed as soon as possible, typically by the
attending physician. The deceased’s body cannot be released to a funeral
home without an accompanying certificate. The funeral home will usually
provide the family with several copies of the certificate.
   An autopsy, which is a medical examination of the body after death, is
performed in a hospital or a similar medical facility. The autopsy identifies
the deceased and determines the exact cause, location and time of death.
The family can obtain a copy of the autopsy report from the coroner,
though it may take up to six weeks before the report is available. For more
information on the coroner’s duties, please contact the local coroner’s
office, the local police department, a victim services office, a funeral
director, or MADD Canada.

Police
   The police are responsible for investigating traffic crashes. The location
of the crash generally determines which police department will conduct
the investigation. Incidents within a city are typically handled by the
municipal police, and those outside of a city are investigated by the
provincial police or RCMP. The police gather evidence to help determine
the cause of the crash and whether federal or provincial charges are
warranted.

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   The investigation process includes:
     • interviewing witnesses, victims and the driver;
     • determining if alcohol or drugs were a factor;
     • collecting and cataloguing evidence;
     • undertaking a collision reconstruction;
     • deciding if charges will be laid; and
     • determining and laying the appropriate charges.
The victim does not play a formal role in deciding if charges will be laid
or whether they will be altered or dropped. Once the police have laid the
charges, the Crown decides how to proceed with the case.

Crown Counsel
   The Crown counsel is the lawyer who prosecutes an accused in a
criminal proceeding. There is a network of Crown and Assistant Crown
counsel spread throughout each province and territory. These counsel
operate under the direction of the provincial or territorial Attorney
General. The office of the Attorney General is also responsible for
establishing policies regarding criminal prosecutions.
   It is important to understand the legal framework in which the Crown
operates:
      • The Crown represents the state, not the victim.
      • All accused are presumed to be innocent until proven otherwise.
      • There are strict rules limiting the types of evidence that may be
        introduced to prove the accused’s guilt.
      • The Crown has the burden of proving each and every element of
        a criminal offence beyond a reasonable doubt. If there is not
        enough evidence to sustain a charge, the Crown may bring a
        motion to dismiss it.
      • The Crown has a legal duty to disclose to defence counsel any
        relevant evidence it obtains or receives, including the victim
        impact statements that are submitted by the victim and his or her
        family.
      • Crown counsel are expected to exercise their responsibilities in
        the best interests of society.
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Thus, the Crown’s goal is not to obtain a conviction at all costs, but rather
to ensure that justice is served.
   It may be helpful for victims to contact the Crown or Assistant Crown
assigned to the case. The police can provide you with the location and
telephone number of the Crown’s office, and you can phone for an
appointment. The case will be filed under the accused’s name and date of
birth. In preparation for your appointment, make a list of your questions and
concerns, so that you do not forget anything. This is your opportunity to ask
questions, determine the status of the case, and express your feelings about
the charges and the issue of plea bargaining. Bring some paper and a pen, as
you may wish to make some brief notes and record the dates of the accused’s
upcoming court appearances.

Defence Counsel
   A basic principle of our justice system is that all accused are entitled to a
full and fair defence, regardless of how obvious the offence, unpopular




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the person, or disturbing the crime. The defence counsel has duties both
as the accused’s legal representative and as an officer of the court. His or
her duty to the accused includes ensuring that the Crown has proven every
element of the offence beyond a reasonable doubt. This also includes
putting forth any relevant arguments and defences, some of which may
seem offensive to the victim and his or her family. The defence counsel’s
obligation to the court requires him or her to ensure that the interests of
justice are served. Thus, for example, defence counsel cannot mislead the
court or call a witness that he or she knows will be untruthful.

Judge and Jury
     During a trial, the judge ensures that proper procedures are followed
and that both the Crown and defence counsel act in accordance with their
obligations to the court. The judge must also rule on the admissibility of
evidence and the capacity of witnesses to testify.
     Based on the evidence presented at trial, the accused will be found
either “guilty” or “not guilty.” In a trial by judge alone, the judge makes
this determination. In a trial by judge and jury, the jury decides if the
accused is guilty. In either case, if the accused is convicted, the judge
decides on the sentence.




6
Victims and their Families
      Victims and their families may be an essential source of information for
the investigating officer. Therefore, it is important that they provide as
accurate an account of the events as possible. It is normal and expected
that victims and their families will be emotional about the crash.
      A victim may be called to testify at trial by either the Crown or defence
counsel. Witnesses may appear voluntarily or may be served with a
subpoena, compelling them to appear in court and testify. If a person
refuses to appear as a witness, a warrant can be issued for his or her arrest.
In an effort to prevent a potential witness from being influenced by the
testimony of the other witnesses, he or she may not be allowed in the court
while they are testifying. Thus, victims and family members may be
excluded from parts of the trial if they are going to be testifying.
      Witnesses should refrain from discussing the case with the general
public or the media until after a verdict has been reached. Even then,
witnesses should attempt to be as discreet as possible, particularly with the
media. It is appropriate for victims and their family members to express
their feelings about the crash and the outcome of the case. However, they
should not use inflammatory language or engage in personal attacks on
the accused, defence counsel, judge, or other parties in the case.

(i)   Testifying as a Witness
    As a witness, it is important to understand the process of giving
testimony. First, you will be asked your name and to swear or affirm that
you will tell the truth. Next, you will be questioned, first by the lawyer
who called you as a witness and then by opposing counsel. The lawyer
who called you may ask open-ended questions that allow you to tell the
story in your own words. The process of being questioned by this lawyer
is called “direct examination” or “examination-in-chief.”
   Opposing counsel will then question you, and his or her questions will
likely be far more specific and challenging. The process of being
questioned by opposing counsel is called “cross-examination.” It is
important to listen carefully, state your position firmly and point out when
you disagree with counsel’s comments or suggestions. During the cross-
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examination, opposing counsel may try to highlight inconsistencies or
weaknesses in your testimony. Although it is not intended personally,
cross-examination can be stressful, as opposing counsel may be very
assertive.
  The following guidelines may help you while testifying:
     • Relax. You are not expected to know the law or procedure. As a
       witness, your task is to provide evidence by answering questions.
     • Concentrate on the specific question asked. Wait until the lawyer
       has finished speaking before responding.
     • Take your time – think about the question and your answer before
       responding.
     • Try to speak loudly, clearly and slowly.
     • Answer the specific question. Do not elaborate unless asked to do
       so.
     • If you do not understand a question, ask for clarification. If you
       do not know the answer, it is all right to say so.
     • Do not overstate a matter. A witness who overstates the facts,
       even unintentionally, will undermine his or her own credibility and
       possibly the case.
     • Regardless of the lawyer’s tone, you should try to answer
       questions civilly. Do not be drawn into arguing with the lawyer
       or losing your temper.
     • If the lawyer’s conduct is inappropriate, it is a matter that should
       be addressed by Crown counsel or the judge.
     • Try to maintain your composure. While outbursts of anger against
       the accused are not appropriate, it is understandable that victims
       and their families may become emotional when talking about the
       crash, their loved ones and their sense of loss. Ask for a break if
       you need one.

(ii) Courtroom Guidelines
    Your behaviour both inside and outside the courtroom is important. The
case should not be discussed outside the courtroom. Never speak to the
judge or a jury member, even if you encounter them outside the
8
courtroom. It is imperative that they remain free from bias and any
appearance of bias.
     Be prepared for an emotional reaction to hearing the accused say “not
guilty.” Although you may be aware of the plea in advance, many victims
report a jarring response when they hear these words spoken aloud. These
are often the first words that the victim has heard the accused speak. You
may hear upsetting testimony or see gruesome photographs for the first
time. The defence counsel may even allege that you or your loved one was
responsible for the crash. This attempt to blame the victim can be very
upsetting to the family. Nevertheless, this tactic should be seen as part of
the accused’s right to make a full answer and defence.
     If you feel yourself losing control of your emotions during the trial,
leave the courtroom. Before the trial, advise any supporters who will be
attending court to do the same. If there are any inappropriate disruptions
during the trial, the judge may order the courtroom cleared of all spectators.
Such disruptions can also lead to a mistrial.
(iii) Information Provided to Victims and their Families
       In some provinces, the government is required to provide victims with
specific information about the case and general information about the
criminal justice system. However, in most provinces, victims will only be
provided with such information if they request it. Speak to the Crown,
investigating officer or court clerk, and indicate that you wish to be kept
informed. This should be followed up by a letter to that effect.
       You may also request a copy of the accident report from the
investigating officer. Review the report and notify the investigating officer
of any inaccuracies or omissions, no matter how minor they may seem.
The accuracy and thoroughness of this report is critical in any subsequent
criminal proceeding. If it is possible that you will be called as a witness,
your access to this report may be limited.
(iv) Victim Impact Statements
      The Criminal Code gives victims the right to present a victim impact
statement after the accused has been convicted, and prior to sentencing.
The term “victim” is defined broadly to include a person “who suffered a
                                                                            9
physical or emotional loss as a result ... of the offence.” Consequently,
both a victim directly injured in an impaired driving crash and his or her
loved ones who subsequently suffered emotional loss are entitled to
submit victim impact statements. A victim impact statement is a personal
account of the financial, physical and emotional effects of the crime. If the
victim has been killed or is incapable of preparing a statement, his or her
spouse or another relative may write and present the statement on the
victim’s behalf.
      You may read your victim impact statement in court, ask the Crown to
read it in court on your behalf, or submit a written statement. Victims are
not required to present a statement, but many feel that it is important to tell
the court how the offence has changed their lives. The judge must consider
the victim impact statement in determining the appropriate sentence, but is
free to impose any sentence that he or she considers appropriate.
      Good record keeping can assist you in preparing a victim impact
statement and also help the police in their case. From the time of the crash,
try to:
      • take and verify photographs of the victim during recovery;
      • keep all bills and receipts of expenses stemming from the crash;
      • begin a daily record of all expenditures that you have incurred;
        and
      • keep track of telephone or personal conversations that you have
         with anyone associated with the case, noting the date, time and
         subject of the conversation.
      Impaired driving crashes, particularly those resulting in serious
personal injuries or death, have profound effects on families. It may take
months or even years before victims and their families can fully appreciate
the consequences of the crash. Therefore, it is advisable not to submit a
victim impact statement immediately after the crash. While you should
make notes as issues arise, it is best to finalize and submit your victim
impact statement close to the date of trial or the sentencing hearing.
      In describing the financial impact of the offence, you should include all
costs resulting from the crash and an estimate of future expenses (i.e.
medical bills, costs of therapy, and loss of income). The impact of the

10
crash on your business or employment should not be overlooked. Many
victims report ongoing problems in focusing at work that may persist long
after their physical injuries have healed. This information will also be
important in any civil action that the victim brings against the impaired
driver. Wherever possible, actual costs should be used. It is advisable to
keep your receipts and maintain a record of all relevant expenses.
      The physical impact section of the statement should describe all of the
victim’s injuries and their impact on his or her life. Explain whether the
injuries are permanent or temporary, and whether the claims are based on
medical or other professional advice. You should also indicate whether
future medical problems are likely to develop.
      Finally, in describing the emotional impact of the offence, include
the distress experienced by the victim and his or her family. In addition to
grief, anger and a profound sense of sadness, many victims report various
ongoing problems including serious sleep disorders, post-traumatic stress
syndrome and clinical depression. If the victim or a family member has
sought counselling, it may be appropriate to include a short statement from
the therapist.
      The purpose of a victim impact statement is to document the crime’s
effects, not to reiterate the facts. Indeed, restating the facts may be
counterproductive. If the facts in the statement differ from those presented
at trial, the defence can challenge the facts as found at trial. It is also
inappropriate to recommend a sentence, repeat rumours or make
allegations about the offender.
      Anything you submit to the Crown, including a victim impact
statement, must be disclosed to defence counsel. The offender’s lawyer is
entitled to question you about your statement. Moreover, once the
statement has been entered into evidence at the sentencing hearing, it
becomes part of the public record and is accessible to the media and the
general public. You may update your victim impact statement for use in
parole hearings, particularly if there is new information about the crime’s
impact.


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     If you have concerns or questions about what to include in your
statement, talk to the Crown or a victim services worker. In addition, your
local MADD Canada chapter can assist you in preparing your statement and
provide sample statements that you may wish to use as a guide.




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      SECTION II: FEDERAL IMPAIRED
             DRIVING LAW
Federal and Provincial Authority
      In Canada, Parliament has constitutional power over criminal law and
procedure. The Criminal Code is a federal statute that sets out the
impaired driving offences, enforcement procedures and penalties. The
federal government also has constitutional power to create new impaired
driving offences.
      Although impaired driving offences are created federally, enforcement
of the federal law falls within provincial and territorial authority. Thus, the
provinces and territories play a vital role in the apprehension, prosecution
and punishment of offenders. The provinces and territories also have
constitutional authority over highways and the licensing of drivers within
their jurisdictions. Nearly all of the jurisdictions have used these powers to
enact lengthy licence suspensions that apply to impaired driving offenders.
Moreover, most have introduced vehicle impoundment, alcohol interlock,
and remedial treatment programs. As well, the provinces and territories have
authority over automobile insurance and civil liability claims.

The Scope of the Federal Offences
     Many people wrongly assume that they must be driving a car on a
public road to be charged with an impaired driving offence. While most
cases arise in these circumstances, the Criminal Code defines the impaired
driving offences very broadly. First, the offences apply not only to those who
are driving, but also to those who have “care or control” of a motor vehicle.
The courts have defined “care or control” to include virtually any



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act that could set the vehicle in motion, even accidentally. Individuals can
be held to have care or control if they use their vehicles as a place to sleep
or are warming up the engine. Moreover, the Criminal Code deems
individuals found in the driver’s seat to be in care and control, unless they
can prove that they did not occupy that seat for the purpose of setting the
vehicle in motion.
      Second, the term “motor vehicle” is defined to include any vehicle,
except a train or streetcar, which is propelled by means other than muscle
power. This broad definition encompasses cars, trucks, motorcycles,
motorized bicycles, snowmobiles, farm tractors, all-terrain vehicles, golf
carts, and even self-propelled lawnmowers. Third, there is no geographical
limit on where the offences may be committed. Consequently, individuals
may be convicted of an impaired driving offence if they are apprehended on
their own driveway or on a private parking lot.

Gathering Evidence of an Impaired Driving Offence
     In order to arrest an individual for an impaired driving offence, the
police must have a firm evidentiary basis for the charge. Until recently, an
officer’s power to collect evidence was limited to the Criminal Code’s
breath and blood-testing provisions. As of July 2008, the police were
given authority, in specific circumstances, to demand that impaired
driving suspects participate in “physical coordination testing” and “drug
recognition evaluation.”




14
(i) Breath Testing
      Although a person’s blood-alcohol concentration (BAC) can be
determined by analyzing urine, saliva or blood, the majority of cases
involve breath samples. The Criminal Code authorizes the police to use
two kinds of machines for analyzing breath samples: “approved screening
devices” (ASDs) and “approved instruments.”
      ASDs, also called roadside screening devices, are small hand-held
machines carried in patrol cars. The police can demand a breath sample
for analysis on an ASD if they reasonably suspect that a driver has any
alcohol in his or her body. This is not a particularly difficult standard for
the police to meet. A reasonable suspicion can be based on the manner of
driving, the odour of alcohol on the driver’s breath or the driver’s
admission that he or she was just at a bar. The police need not believe that
the driver is drunk, impaired or committing an offence. Moreover, the
Canadian courts have held that the suspect is not entitled to consult with a
lawyer prior to taking an ASD test.
      The readings from ASDs are not admissible as evidence of the driver’s
BAC in criminal proceedings, but can provide the police with grounds for
demanding breath tests on an approved instrument. Since ASDs are
typically set to register a “fail” at a BAC of .10%, a driver’s failure on the
screening test provides the police with the reasonable grounds to believe
that the driver is committing the federal offence of driving with a BAC in
excess of .08%.
      Approved instruments are larger, more sophisticated machines that are
typically kept at the police station or in specially equipped vans. Testing
must be done by a qualified technician, in accordance with the Criminal
Code’s detailed procedures. The police can only demand breath samples
for analysis on an approved instrument if they have reasonable grounds to
believe that the suspect has committed an impaired driving offence within
the previous three hours. Reasonable grounds are typically defined as facts
that would convince an honest and objective individual to have a firm
belief in the suspect’s guilt. Thus, the grounds for demanding breath
testing on an approved instrument are more limited than those for

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demanding breath testing on an ASD. Unless the driver has failed an ASD
test or is obviously impaired, the police may have difficulty proving that
they had grounds to demand testing on an approved instrument.




     If the Criminal Code procedures are followed, the readings from the
approved instrument are admissible in evidence to prove that the driver’s
BAC exceeded .08%. Consistent with their function, approved instruments
are often referred to as “evidentiary breath-testing” machines. Once the
police demand an evidentiary breath test, they must inform the suspect of
his or her right to legal counsel, and provide him or her with a reasonable
opportunity to consult with counsel. An infringement of this right will
nearly always lead to the exclusion of any evidence that is subsequently
obtained and, in turn, result in the charges being dropped or an acquittal.
     Although the time limit for demanding evidentiary breath samples was
extended in 1999 from two to three hours, no parallel changes were made
in the evidentiary rules concerning the breath-test results. Sometimes the
police, through no fault of their own, cannot conduct the evidentiary tests
within two hours. In these cases, the BAC readings cannot be used in
evidence unless the Crown is willing to call a toxicologist to calculate the
accused’s BAC results back to the time of the offence. Except in cases



16
involving death or serious bodily injury, the Crown will typically drop the
charges, rather than go to the time and expense of retaining a toxicologist,
whose evidence may generate additional legal challenges. Thus, despite
the 1999 amendments, many impaired drivers continue to evade criminal
liability because the evidentiary breath testing cannot be conducted within
two hours.

(ii) Blood Testing
      The Criminal Code authorizes the police to demand blood samples
from suspected impaired drivers, but only in very limited circumstances.
First, the police must have reasonable grounds to demand evidentiary
breath samples. Second, the police must have reasonable grounds to
believe that the driver is incapable of providing breath samples, or that it is
“impracticable” to obtain them due to the driver’s physical condition.
Third, as with breath samples, the demand for blood samples must be
made within rigid time constraints, which may expire before the police can
arrange for the samples to be taken.
    The Criminal Code also permits the police to apply for a “special
judicial warrant,” which authorizes the taking of blood samples from
impaired driving suspects who are incapable of responding to a demand
for a sample. However, these warrants are only available in very narrow
circumstances. The police must have reasonable grounds to believe that
the suspect committed an impaired driving offence within the preceding
four hours, and that the suspect was involved in a crash causing death or
bodily injury. The police must also have reasonable and probable grounds
to believe that a medical practitioner is “of the opinion” that the suspect is
unable to consent to providing a blood sample and that the taking of the
sample would not endanger the suspect’s life or health.
    Parliament introduced these blood-testing provisions in 1985 because
impaired drivers who were taken to hospital following a crash were unable
to be subject to breath testing and typically avoided criminal liability.
However, given these statutory limits and the courts’ interpretation of
them, the Criminal Code’s blood-testing provisions have proven to be
unworkable and are rarely used. Contrary to Parliament’s intent, impaired

                                                                            17
drivers who need or demand to be taken to hospital remain largely
immune to criminal liability.




(iii) Roadside Physical Coordination Testing
      Although the police were permitted to ask an impaired driving suspect
to participate in physical coordination tests at roadside, the Criminal Code
did not require the suspect to do so. The July 2008 Criminal Code
amendments authorized the police to demand that a driver participate in
physical coordination testing if they reasonably suspect that he or she has
any alcohol or drugs in his or her body. Moreover, the police were
explicitly authorized to videotape the testing. As with ASD testing,
physical coordination testing can only be sought to determine if there are




18
grounds for demanding an evidentiary breath, blood or drug test. Thus,
physical coordination testing will be used primarily as a screening tool
to demand further testing.
     The physical coordination tests are based on what is known as
“Standard Field Sobriety Testing” (SFST). SFST is used throughout the
United States and other countries, and comprehensive research has
established that it is accurate in assessing driver impairment. SFST is
composed of three elements: the walk-and-turn, one-leg stand, and




                                                                     19
horizontal gaze nystagmus (HGN) tests. The walk-and-turn test involves
walking heel-to-toe in a straight line, turning around, and then walking
back while receiving instructions from the officer. The one-leg stand test
involves standing on one leg while counting. Both tests focus on the
individual’s balance, coordination and ability to respond to simple
instructions. The HGN test assesses the automatic jerking of the eye while
following a light, which becomes more pronounced as an individual’s
BAC rises. A driver’s failure on the SFST provides the police with
reasonable grounds to believe that he or she is impaired, and thus the
grounds to demand further testing.
(iv) Drug Recognition Evaluation (DRE) Testing
      While Canada’s first drug-impaired driving offence was created in
1925, the police had virtually no means of enforcing this prohibition. The
July 2008 amendments finally gave the police the power to collect
evidence of drug-impaired driving. If the police have reasonable grounds
to believe that a driver has driven while impaired by drugs, they may
demand that he or she accompany them to the police station and
participate in a DRE. The amendments authorized specially trained and
certified officers to conduct the DRE in order to determine if the driver
is impaired by drugs and, if so, the class of drugs involved. DRE is designed
to identify seven classes of drugs: depressants (e.g. barbiturates and
alcohol), inhalants (e.g. gasoline), phencyclidine (e.g. PCP or angel dust),
cannabis (e.g. marijuana, hashish and hash oil), stimulants (e.g.
amphetamines and cocaine), hallucinogens (e.g. LSD and MDA), and
narcotics (e.g. heroin, morphine and codeine).
      Developed and widely used in the United States, DRE involves two
major components. The first is designed to determine if the driver is
impaired by a drug and, if so, to identify the class of drugs involved. The
second component establishes whether a bodily fluid taken from the
suspect contains the identified class of drugs. More specifically, the first
component comprises 11 separate steps. If not previously done, a breath
test is conducted to rule out alcohol impairment. The remaining steps
include: interviewing the arresting officer and the suspect; various eye
examinations; and checking the suspect’s temperature, pulse, blood
20
pressure, muscle tone, and body for common injection sites. The suspect is
also subject to several divided attention tests (similar to those in the SFST)
to confirm that his or her ability to drive is impaired. The first component
ends with a written report. If the officer concludes that the suspect is
not impaired, the suspect is released. However, if the officer concludes that
the suspect is impaired, the officer must identify the class of drugs
involved. It is only at this point that the officer is authorized to demand a
sample from the suspect.
     The second component, which entails the taking and analysis of a
blood, urine or saliva sample from the suspect, simply confirms the
presence of the identified class of drugs. The result does not provide
evidence of impairment. If no drug is present, the charge against the
suspect will be dropped. Similarly, the charge will be dropped if an
impairing drug is found but it is not in the class of drugs identified by the
officer. Thus, a case only proceeds to trial if the analysis of the sample
confirms the officer’s conclusion about the class of drugs involved.
     While the police finally have some ability to enforce Canada’s drug-
impaired driving prohibition, DRE is complex, technical and time
consuming. Given that Canadian judges are unfamiliar with DRE and that
impaired driving charges are aggressively defended, it may be some time
before this evidence is generally accepted by the courts. Moreover, DRE
will inevitably be challenged under the Canadian Charter of Rights and
Freedoms. Consequently, DRE will likely be used only when the
accused’s drug impairment is readily apparent.

The Federal Impaired Driving Offences
     An impaired driving incident may involve various federal criminal
offences, including dangerous driving, leaving the scene of the crash to
avoid civil or criminal liability, and criminal negligence causing death. In
addition, there are seven specific offences related to impaired driving:
      • operating or having care or control of a motor vehicle while one’s
        ability to do so is impaired by alcohol or a drug;
      • operating or having care or control of a motor vehicle while
         having a BAC in excess of .08%;
                                                                            21
       • impaired driving causing bodily harm or death;
       • driving with a BAC above .08% and causing bodily harm or death;
       • failing to provide a sample or participate in SFST or DRE testing
          without a reasonable excuse;
       • failing to provide a sample or participate in SFST or DRE testing
         without a reasonable excuse and causing bodily harm or death; and
       • driving while prohibited under federal law or while suspended
          under provincial law for a federal impaired driving offence.
     Impaired driving causing bodily harm or death, driving with a BAC
above .08% and causing bodily harm or death, and failing to provide a
sample or participate in physical coordination or DRE testing and causing
bodily harm or death are indictable offences. Consequently, these offences
are subject to more formal criminal procedures. For example, the accused
is entitled to a preliminary hearing and may elect to be tried in a higher
court by a judge or by a judge and jury. Generally, indictable offences are
also the most serious crimes and carry the most onerous penalties. The
remaining impaired driving offences are “hybrid” or “dual procedure”
offences, which means that the Crown can choose to proceed by way of
summary conviction or indictment. If these offences are tried by summary
conviction, as is nearly always the case, they are subject to lower
maximum penalties than if the Crown proceeds by indictment.




22
(i) Impaired Driving
      It is an offence to operate or have care or control of a motor vehicle if
one’s ability to drive is impaired by alcohol, drugs or a combination of
alcohol and drugs. The key issue is whether the person’s ability to drive is
impaired, not whether he or she is driving in a careless or dangerous
manner. Similarly, the amount of alcohol or drugs an individual has
consumed is irrelevant. Consequently, a person can be convicted of
impaired driving even if his or her BAC was below .08%.
      The police may rely on several factors in determining whether the
suspect’s ability to drive is impaired. These factors may include: the way
in which the car is driven; the odour of alcohol on the driver’s breath; and
the driver’s slurred speech, lack of coordination while getting out of the
car, clumsiness in walking, and inappropriate responses to questions. The
Canadian courts have defined the word “impaired” broadly, in terms of
whether the driver had complete control of the vehicle. Nevertheless,
many judges apply a far more restrictive test, which equates impairment
with obvious profound intoxication.
(ii) Driving with a BAC above .08%
      It is an offence to operate or have care or control of a motor vehicle if
one’s BAC exceeds .08%. It does not matter that a person appears sober, is
not impaired or is driving safely. This offence is based solely on whether
the suspect’s BAC exceeded .08% while he or she was driving. The
amount of alcohol a person must consume to have a BAC above .08%
varies primarily with his or her weight, the rate of consumption, when the
individual last ate, and the rate at which the person’s body breaks down
alcohol. While it is an offence to drive with a BAC above .08%, most
police will only consider charging suspects if their evidentiary BACs are
.10% or higher. Given certain recognized defences and the margin of error
accepted by the courts, the police realize that most judges will not convict
an accused with a BAC below .10%.
(iii) Impaired Driving Causing Bodily Harm or Death
      These two offences were enacted in 1985 to ensure that impaired
drivers who caused serious crashes were subject to a more substantial
                                                                            23
charge than simple impaired driving. The 1985 amendments permitted the
police to charge an impaired driver who injured or killed another with the
indictable offences of impaired driving causing bodily harm or impaired
driving causing death, both of which carry lengthy maximum sentences.
Establishing the driver’s impairment and the injury or death is relatively
straightforward. However, it has been more difficult to prove beyond a
reasonable doubt that the driver’s impairment, as opposed to some other
factor, was a cause of the injury or death. Although the established test
requires the Crown to prove only that the driver’s impairment was “a
cause beyond an insignificant level,” many courts have applied a more
stringent test.
     The available statistics establish that only a very small fraction of
impaired drivers who kill or injure others are charged with these more
serious offences. Moreover, a relatively small fraction of those charged
with these offences are convicted of them. In large measure, the low
charge and conviction rates are attributable to the limitations in the
Criminal Code blood-testing provisions. These problems prompted
Parliament to enact two new impaired driving offences in 2008: driving
with a BAC above .08% and causing bodily harm or death; and failing to
provide a sample or participate in SFST or DRE testing and causing
bodily harm or death.
(iv) Driving with a BAC above .08% and Causing Bodily Harm or
     Death
      The Crown must prove beyond a reasonable doubt that the accused’s
BAC was above .08% and that he or she caused a crash involving bodily
injury or death. These offences do not require proof that the crash was
caused by the accused’s illegal BAC or impairment. In essence, it is an
offence to cause an injury or fatal crash while having a BAC above .08%.
Drivers cannot escape liability by claiming that the crash was due to
something other than alcohol, such as a momentary lapse in attention,
poor road conditions or other factors. By eliminating the need to prove the
causal link between the accused’s BAC and the crash, these offences make
it far easier for the Crown to obtain convictions. However, the legislation
does not address the significant obstacles that the police face in attempting
24
to obtain breath and blood samples from impaired drivers who have been
taken to hospital following a crash.




(v) Failing to Provide a Sample or Participate in SFST or DRE Testing
     It is a criminal offence for a driver to refuse or fail to comply with an
officer’s demand for a breath, blood, urine or saliva sample, unless the
driver has a “reasonable excuse.” Prior to July 2008, the offence was
limited to failing to provide a breath or blood sample. With the enactment
of broader police powers to investigate drug-impaired driving, the offence
was expanded to include failing to provide a urine or saliva sample. The
July 2008 amendments also made it a federal criminal offence to fail to
participate in SFST or DRE testing without a reasonable excuse. Provided
the officer met the legal requirements for demanding the sample or test,
the fact that the individual was driving safely or was not impaired is
irrelevant. The essential element of this offence is the refusal or failure to
comply with the demand. Moreover, an individual can be convicted even if
the officer did not warn him or her that a refusal could lead to criminal

                                                                           25
liability. The courts have limited the term “reasonable excuse” to matters
such as an inability to understand the demand or to physically comply with
it, and to cases where the officer did not have the required grounds for
making the demand.

(vi) Failing to Provide a Sample or Participate in SFST or DRE
     Testing, and Causing Bodily Harm or Death
      Previously, most impaired drivers who injured or killed someone and
then refused to provide a sample could only be charged with refusing to
provide a sample. By not providing a sample, the impaired driver denied
the police the BAC evidence needed to lay the more serious charge of
impaired driving causing bodily harm or death. This tactical refusal
largely removed the possibility that the impaired driver would face the
lengthy prison sentences that could result from a conviction for these
offences.
      The July 2008 amendments made it an indictable offence for drivers to
fail to provide a sample or to participate in SFST or DRE testing, if they
knew or ought to have known that they killed or injured someone in a
crash. These offences carry the same maximum penalties as impaired
driving causing bodily harm or death. Thus, the amendments eliminated
the previous benefits that resulted from being uncooperative. These new
offences will encourage impaired drivers to provide samples and
participate in SFST and DRE testing. However, the legislation does not
broaden the circumstances in which police can lawfully demand a sample
from suspected drinking drivers. Similarly, the new SFST and DRE-
testing provisions will have little impact on impaired drivers who are
hospitalized following a crash. Moreover, these offences will be subject
to numerous challenges under the Canadian Charter of Rights and
Freedoms.
(vii) Driving While Prohibited or Suspended
      Nearly all impaired driving offenders are subject to both a federal
driving prohibition and a lengthy provincial suspension. Nevertheless,
most offenders continued driving, at least occasionally. In 1985,
Parliament attempted to address this issue by creating a separate criminal
26
offence of driving while prohibited under federal law or while suspended
under provincial law for a federal impaired driving offence.

Defences
     The Criminal Code contained statutory presumptions that were
essential in prosecuting the offence of driving with a BAC above .08%.
For example, the results of evidentiary breath and blood tests were
presumed to be evidence of the accused’s BAC at the time of driving, in
the absence of “evidence to the contrary.” Until the July 2008
amendments, defence counsel frequently used the “Carter” (or “two
drink”) defence, and the “last drink” defence to rebut these statutory
presumptions and secure acquittals.
(i)  The “Carter” Defence
     The Carter defence was typically based on the accused’s testimony that
he or she consumed only a small amount of alcohol (typically two drinks)
prior to driving. A defence toxicologist was then called to testify that if the
accused had, in fact, consumed such a small quantity of alcohol, his or her
BAC would not have exceeded .08%. Since the toxicologist’s evidence
was based solely on the accused’s self-reported consumption, it added
nothing to the credibility of the accused’s testimony. If the court accepted
the accused’s evidence, it was usually considered sufficient “evidence to
the contrary” to rebut the presumptions that the test results accurately
measured the accused’s BAC. In such circumstances, the breath or blood
evidence was disregarded, even if the evidentiary tests were administered
properly, were consistent with the results of the roadside screening test
and were supported by the officer’s evidence that the accused showed
signs of impairment.
(ii) The “Last Drink” Defence
      The last drink defence was typically based on the accused’s testimony
that he or she quickly consumed a large quantity of alcohol immediately be-
fore driving. The defence, supported by toxicological evidence, then con-
tended that very little of this alcohol would have been absorbed into
the accused’s bloodstream when he or she was stopped by the police.
                                                                            27
Thus, the accused argued that his or her BAC was below the legal limit
when driving, and only rose above that limit in the interval between being
stopped and being tested. The last drink defence did not challenge the
accuracy of the BAC reading at the time of testing, but rather questioned
whether that reading reflected the accused’s BAC at the time of driving.
Again, if the defence testimony was accepted, the breath or blood
evidence was disregarded and the accused was acquitted.

(iii) Narrowing the Defences
    These challenges resulted in the rejection of scientifically sound
evidence of the accused’s BAC, typically in favour of the accused’s
unsubstantiated consumption claims. No other country accepts these
claims in impaired driving cases. Indeed, Canadian courts do not reject
scientific evidence of other offences (e.g. certificates of drug analysis)
based merely on the accused’s denial of culpability. Some Canadian
defence counsel have boasted about being able to get impaired drivers
acquitted. In a newspaper article entitled “How Big Bucks Can Beat
.08%,” one Saskatchewan lawyer bragged about having never lost more
than 1 of his more than 50 impaired driving trials per year. Other lawyers
put glowing testimonials on their websites from thankful impaired drivers
who escaped criminal liability on technicalities.
    These defences generated increasing public, police and government
concern. The July 2008 amendments strengthened the statutory
presumptions and greatly narrowed the Carter defence. First, the amend-
ments made evidentiary breath-test results “conclusive proof” of the
accused’s BAC, unless he or she introduced evidence “tending to show”
that the breathalyzer was malfunctioning or misused, that the malfunction
or misuse resulted in the BAC reading above .08%, and that his or her
BAC did not in fact exceed .08% at the time of driving. Second, the
amendments specifically stated that evidence of the accused’s alcohol
consumption, absorption and elimination rates, or related calculations do
not constitute evidence that the breathalyzer was malfunctioning or
misused. Parallel provisions were enacted in regard to evidentiary blood tests.

28
   The July amendments had a more limited impact on the last drink
defence. Nevertheless, in order to raise the defence, the accused must
introduce evidence “tending to show” that his or her alcohol consumption
was consistent with both a lawful BAC when driving and the evidentiary
breath or blood test results.




The Penalties for the Impaired Driving Offences
     As the following charts illustrate, the impaired driving offences carry
potentially severe sentences, especially for repeat offenders. In addition to
these penalties, a judge may issue a probation or restitution order. The
terms of probation may include abstaining from alcohol, undertaking
community service, submitting to an alcohol or drug assessment,
participating in treatment, and any “other reasonable conditions that the
court considers desirable.” A restitution order compels the offender to
compensate the victim, but these are rare in impaired driving cases.
     Chart I outlines the penalties for the "simple" impaired driving and
failing offences, as they are called. The 2008 amendments increased
many of the minimum and maximum penalties for these offences.

                                                                          29
 CHART I: PENALTIES FOR THE SIMPLE IMPAIRED DRIVING
                AND FAILING OFFENCES
     OFFENCES           MINIMUM PENALTY                 MAXIMUM PENALTY
                                                   Summary Conviction
                                                   First offence:
                        First offence:             $2,000 fine, 18-month sentence
                        $1,000 fine and a          and a 3-year driving prohibition
Driving while           1-year driving
impaired                prohibition*               Second offence:
                                                   $2,000 fine, 18-month sentence
                        Second offence:            and a 5-year driving prohibition
Driving with a
                        30-day sentence and a      Indictment
BAC > .08%
                        2-year driving             First offence:
                        prohibition*               5-year sentence, a 3-year driving
Failing to provide a                               prohibition and any fine the judge
sample or participate Subsequent offence:          deems appropriate
in testing            120-day sentence and a
                                             Second offence:
                      3-year driving
                                             5-year sentence, a 5-year driving
                      prohibition*
                                             prohibition and any fine the judge
                                             deems appropriate
* The minimum federal driving prohibitions of 1, 2 and 3 years for first, second and
subsequent offences are reduced to 3, 6 and 12 months, if the driver participates in a
provincial or territorial interlock program. This will be of little benefit to offenders,
unless the province or territory enacts corresponding reductions in its minimum licence
suspensions.

      Chart II sets out the penalties for the impaired and failing offences
involving bodily harm or death. Since these offences do not carry
mandatory minimum penalties, trial judges have broad discretion in
sentencing, subject only to guidelines established by the provincial or
territorial Court of Appeal.
   Even if a judge decided that a prison sentence was appropriate, the
offender would not necessarily be incarcerated. Prior to amendments made
in 2007, judges could grant impaired driving offenders who injured or
killed others a “conditional sentence,” which allowed them to serve their
sentence in the community, under house arrest. Conditional sentences
30
could be imposed for any offence that was not subject to a minimum
mandatory jail term, if: the sentence imposed was less than two years;
granting the conditional sentence was consistent with the fundamental
purpose and principles of sentencing; and the offender was not viewed as
posing a risk to the public. It was common for individuals convicted of
impaired driving causing bodily harm or death to receive a conditional
sentence.
     The inconsistent and inappropriate use of conditional sentences in
cases involving serious crimes led to growing public and government concern.
In 2007, the conditional sentencing provisions of the Criminal Code were
replaced. Among other things, the new provisions precluded conditional
sentences for certain categories of offences. As a result, conditional
sentences are no longer available for cases of impaired driving causing
bodily harm or death.

  CHART II: PENALTIES FOR THE IMPAIRED DRIVING AND
 FAILING OFFENCES INVOLVING BODILY HARM OR DEATH
        OFFENCES                 MINIMUM PENALTY      MAXIMUM PENALTY
Impaired driving causing
bodily harm
                                                      10-year sentence, a 10-
Driving with a BAC > .08%
                                                      year driving prohibition
and causing bodily harm          No minimum penalty
                                                      and any fine the judge
Failing to provide a sample                           deems appropriate
or participate in testing, and
causing bodily harm

Impaired driving causing
death
                                                      Life sentence, and any
Driving with a BAC > .08%
                                                      driving prohibition and/or
and causing death                No minimum penalty
                                                      fine the judge deems
Failing to provide a sample                           appropriate
or participate in testing, and
causing death


                                                                             31
     Chart III shows the maximum penalties for the offence of driving while
prohibited under federal law or while suspended under provincial or
territorial law for a federal impaired driving offence. There are no
minimum penalties for this offence. The July 2008 Criminal Code
amendments increased the maximum term of imprisonment if tried by
summary conviction.

 CHART III: PENALTIES FOR DRIVING WHILE PROHIBITED
                    OR SUSPENDED
       OFFENCE            MINIMUM PENALTY          MAXIMUM PENALTY
                                                 Summary Conviction
                                                 $2,000 fine, 18-month
                                                 sentence and a 3-year
                                                 driving prohibition
Driving while prohibited or
suspended for a federal     No minimum penalty   Indictment
impaired driving offence                         5-year sentence, a 3-year
                                                 driving prohibition and any
                                                 fine the judge deems
                                                 appropriate

     The fact that an offender has one or more previous impaired driving
convictions does not necessarily mean that he or she will be sentenced as a
repeat offender. First, the Crown generally will not try to introduce a
suspect’s prior impaired driving conviction if it occurred five or more
years ago. Second, the Crown may agree, as part of a plea or sentence
negotiation, not to introduce the offender’s record. Third, if an accused
pleads guilty at his or her first court appearance, the Crown may not be
aware of the offender’s prior record. Finally, the Crown may be unable to
readily prove the prior conviction. Many impaired driving suspects are not
fingerprinted. Without fingerprint confirmation, it may be time-consuming
to prove conclusively that an offender has a prior impaired driving
conviction.
     In addition to the penalties imposed under the Criminal Code, impaired
driving offenders may be subject to a range of provincial and territorial
sanctions. Depending on the jurisdiction, the offender may receive a
32
lengthy licence suspension, be required to successfully complete an
alcohol or drug treatment program, and be required to participate in an
alcohol interlock program.




                                                                    33
SECTION III: THE PROCESSING OF CASES
Pre-Trial
     Once a charge has been laid, the accused is required to appear in court.
The accused will enter a plea of either “guilty” or “not guilty”. Generally,
there is no need for victims to attend these pre-trial hearings, as they tend
to be very brief and formalistic. If the accused enters a “guilty” plea,
sentencing will typically be deferred to a later date. Victims have a right to
submit a victim impact statement prior to sentencing.
     The Crown or defence counsel may initiate a meeting to discuss the
charges and the possibility that the accused may agree to plead guilty.
These discussions are commonly called Crown resolution or plea
bargaining meetings. These negotiations may result in the accused
agreeing to plead guilty to a lesser charge or in a Crown recommendation
for a reduced sentence. The Crown may be willing to plea bargain because
of the time, cost and uncertainties of trial.
     The Crown should inform you if a plea is being considered, especially
if you have contacted the office and requested to be kept informed. While
you should express your opinion on the possibility of a plea bargain, the
Crown is not bound by your views.
     If the accused pleads “not guilty”, the next stage depends on whether
the accused is charged with a summary conviction or an indictable
offence. In summary conviction cases, once the accused pleads “not
guilty,” a trial date is set. With few exceptions, nearly all impaired driving
cases proceed to trial in this fashion.
     However, individuals charged with indictable offences, such as
impaired driving causing bodily harm or death, generally have a right to a
preliminary inquiry. At this hearing, the Crown must satisfy the judge that
there is sufficient evidence to commit the accused for trial. Defence
counsel often use preliminary inquiries to test the strength of the Crown’s
case, even if it is obvious that there is sufficient evidence. At the
preliminary inquiry, the Crown will introduce evidence and call witnesses
in much the same manner as in a trial. If the judge determines at the end of
the preliminary inquiry that there is insufficient evidence, the charge will
34
be dropped and the accused will be released. If, as is most often the case,
the judge concludes that there is sufficient evidence, a trial date will be
set.
     Generally, the accused is released prior to trial, unless detaining the
accused is necessary to protect the public or to ensure that he or she will
appear for trial. The courts often attach conditions to the accused’s release,
such as remaining in the jurisdiction, reporting to the police, refraining
from drinking or drug use, and refraining from communicating with the
victim or the victim’s family. If the accused attempts to contact you, you
should report this to the Crown.

Trial
     At trial, the Crown presents its case first. Defence counsel is entitled to
cross-examine all the witnesses called by the Crown. After the Crown
finishes presenting its case, the defence typically presents its evidence.
However, the defence may choose not to present any evidence. This is
more likely if the defence does not believe that the Crown has established
the elements of the offence. The Crown may cross-examine any witnesses
called by the defence. The accused is not required to give evidence or take
the stand. Moreover, the accused’s failure to testify cannot be used as a
basis for concluding or drawing an inference that he or she is guilty.
     Once all the testimony has been presented, the judge or jury will
determine the verdict based on the evidence and the relevant law. It is
important to emphasize that a verdict of “not guilty” does not necessarily
mean that the accused did not commit the offence. Rather, it means that
the Crown was unable to prove each element of the offence beyond a
reasonable doubt. If the verdict is “not guilty,” the accused is released.
However, if the verdict is “guilty,” a date for sentencing is set.
Alternatively, sentencing may occur directly after the trial.
     The judge determines the sentence, even in jury trials. Both the Crown
and defence can make sentencing submissions. Generally, the Crown will
speak to the sentence first. If the sentencing hearing is conducted
separately from the trial, the Crown will usually set out the basic
circumstances of the offence and the offender’s prior record, if any. In
                                                                             35
addition to the Crown and defence submissions, the judge may request that
a probation officer prepare a pre-sentence report. This report contains
personal information about the offender, such as his or her background,
character and family obligations, and is designed to help the judge
determine an appropriate sentence. Finally, the judge must ask the victims
if they have been informed of their right to present a victim impact
statement. The judge must also give victims an opportunity to present their
statements, and must consider them in sentencing.
     Judges do not have a free hand in imposing whatever sentence they feel
is appropriate. In addition to the minimum and maximum penalties set out
for an impaired driving offence, the judge must consider the Criminal
Code’s statement of the fundamental purpose and principles of sentencing.
Among other things, these provisions require judges to use imprisonment
with restraint, ensure that the sentence is consistent with the sentence
given in similar cases, and consider any mitigating and aggravating
factors.
     Mitigating or aggravating factors are variables related to the offence or
the offender that justify reducing or increasing the sentence that would
otherwise be imposed. In impaired driving cases, an offender’s youth,
prior good record, public acknowledgement of responsibility, expression
of genuine remorse, relatively low BAC, and efforts to assist victims at the
crash would be viewed as mitigating factors. Conversely, an offender’s
long history of prior impaired driving offences, denial of personal
responsibility, failure to seek treatment, high BAC, and efforts to flee the
scene would be viewed as aggravating factors.
     The processing of a serious criminal charge, such as impaired driving
causing bodily harm or death, can take years and involve numerous court
appearances. Although this may be very frustrating for victims and their
families, the slow pace of progress may be essential to avoid giving the
accused procedural or other grounds to challenge the outcome.




36
Appeals
     Both the verdict and sentence may be appealed. In keeping with our
legal system’s focus on the accused’s rights, the Crown’s right to appeal is
more limited than that of the defence. The Crown cannot appeal a verdict
simply because he or she believes the accused was guilty or lied on the
stand, or because he or she disagrees with the judge’s findings of fact or
assessment of the credibility of the witnesses. Rather, the Crown’s right to
appeal is generally limited to situations in which the trial judge made an
error in law. Similarly, the Crown can only appeal a sentence if the trial
judge misapplied the sentencing principles, or the sentence itself is
“demonstrably unfit” in all of the circumstances.
    Typically, no evidence or testimony is presented during an appeal.
Rather, the Appeal Court reviews the trial transcript, the appeal documents
filed by the Crown and defence, and holds a hearing at which the Crown
and defence present oral arguments. Depending on the grounds for the
appeal, the Appeal Court may affirm the verdict, overturn it and acquit the
accused, or order a new trial. Similarly, the Appeal Court may affirm the
original sentence, or impose a different sentence if it considers the original
sentence to be blatantly inappropriate.

Publication Bans
     Court proceedings are normally open to the public. However, the
Criminal Code allows judges to exclude some or all members of the public
from the proceedings, when doing so is in the “interest of public morals,
the maintenance of order or the proper administration of justice.” Even in
cases that are open to the public, the Court may prohibit publication of
emotionally sensitive evidence or the identity of the victims and witnesses.
A victim or witness may request a publication ban, but must do so in
writing and indicate why it is necessary. In deciding whether to issue a
publication ban, the Court considers the accused’s right to a fair trial, the
likelihood of significant harm to the victims or witnesses, and other
factors.

                                                                           37
The Processing of a Typical Drinking and Driving Case

Under common law principles or provincial law, a police officer may
order any vehicle to stop at random. The officer may then demand to see
the driver’s licence, registration and insurance.
                                      ↓
If the officer has reason to suspect that the driver has alcohol in his or her
body, the Criminal Code authorizes the officer to demand that the driver
provide a breath sample for analysis on an approved screening device.
                                      ↓
If the driver refuses without a reasonable excuse, he or she may be
charged with the criminal offence of failing to provide a breath sample.
                                      ↓
If the driver takes the screening test and registers a “pass” (typically a
BAC below .05%), he or she will be free to leave. If the driver registers a
“warn” (typically a BAC of .05% to below .10%), the officer may
temporarily suspend the driver’s licence under provincial law (typically 24
hours). Note that Québec has no short roadside suspension legislation.
                                      ↓
If the driver “fails” the screening test (typically a BAC of .10% or above),
the officer will have reasonable grounds to believe that the driver has
committed the criminal offence of driving with a BAC above .08%.
                                      ↓
The officer will demand that the driver come to the station to take a test on
an approved instrument (many police forces use Intoxilizers).
                                      ↓
If the driver refuses, without a reasonable excuse, to accompany the
officer or take the test, he or she will be arrested for the criminal offence
of failing to provide a breath sample without a reasonable excuse.
                                      ↓
38
If the driver takes the evidentiary breath test and has a BAC of .10% or
more, he or she will be charged with the criminal offence of driving with a
BAC above .08%. (As indicated, most police will only lay a charge if the
driver’s BAC is .10% or higher.) Although the offence may be tried by
summary conviction or indictment, nearly all cases are processed as
summary conviction offences.
                                     ↓
If the offender is found guilty or pleads guilty, he or she will be fined a
minimum of $1,000 and prohibited from driving for a minimum of one
year. The judge has the discretion to impose a longer prohibition, a heavier
fine and a term of imprisonment. The federal minimum driving prohibition
of one year may be reduced to three months if the offender participates in
a provincial or territorial alcohol interlock program.
                                     ↓
In addition to the federal driving prohibition, most provinces will suspend
the offender’s licence for a minimum of one year. Thus, the offender will
be subject to both a federal driving prohibition and a provincial licence
suspension, which run concurrently.(In most provinces, these minimum
licence suspensions are reduced for offenders enrolled in an alcohol
interlock program.)




                                                                         39
SECTION IV: CORRECTIONS AND PAROLE
Corrections
     As a victim, it is important to understand how the Correctional Service
of Canada and the National Parole Board operate. If the offender is
sentenced to less than two years imprisonment, he or she will be sent to a
provincial correctional facility. The provincial correctional service will
then assess the offender and determine the institution in which the
sentence will be served. However, if the sentence is two years or more, the
offender will be sent to a federal penitentiary under the authority of the
Correctional Service of Canada. It will assess the offender and decide
whether the sentence will be served in a minimum, medium or maximum
security federal facility.

The Parole Board
     The National Parole Board and the Correctional Service of Canada do
not automatically inform victims of an offender’s pending release. Like
other members of the general public, victims can apply for general
information about the offender, including the length of the sentence, and
review dates for applying for temporary absences, and day and full parole.




40
     Victims can apply to receive additional information not available to the
general public, including: where the offender is imprisoned; the date on
which the offender is to be released on a temporary absence, day parole,
full parole, or statutory release; the conditions of the offender’s parole;
and the offender’s destination upon release. The Correctional Service of
Canada and the National Parole Board will provide this information if they
believe that the victims’ interests in the information outweigh the
offender’s privacy interests. Victims can also request to be notified on an
ongoing basis of information such as the offender’s transfer from one
institution to another.
     It may be useful to update your victim impact statement for use in
parole or release hearings, particularly if there is new information about
the effects of the crime. Victims may present a statement at National
Parole Board hearings either in person, in an audio or video recording, or
may submit a letter. Victims also have the right to be informed about all
hearings regarding the offender. To register your interest in these
proceedings, contact the National Parole Board (www.npb-cnlc.gc.ca).

Conditional Release
      There are various ways in which offenders can be reintegrated into
society after serving all or part of their sentences. One of the National
Parole Board’s major functions is to make conditional release decisions
for offenders sentenced to imprisonment for two years or more.
Conditional release acts as a bridge between incarceration and the
offender’s return to the community. There are four types of conditional
release: temporary absence; day parole; full parole; and statutory release.
      A prison warden may allow an offender to leave the correctional
facility temporarily for a specific reason, such as attending a funeral for an
immediate relative or for a medical appointment. The offender may be
escorted by an officer. Typically, an offender becomes eligible to apply
for a temporary absence after serving the longer of six months or one-half
the time required to reach eligibility for full parole.

                                                                           41
   Day parole prepares the offender for full parole or statutory release.
Offenders on day parole are allowed to leave the facility during the day,
usually to go to work or school, but must return at night. Except for certain
categories of offenders, a person typically becomes eligible to apply for
day parole after serving one-sixth of his or her sentence. While the
National Parole Board makes the decision to grant day parole, the
Correctional Service supervises offenders in the program.
     Full parole allows the offender to serve the remainder of his or her
sentence in the community under the supervision of a parole officer.
Parole is not granted automatically. Most offenders may apply for full
parole after serving a third of their sentence.
     The law allows most offenders to earn one day off their sentence for
every two days served with good behaviour. Thus, except in very limited
circumstances, all federal inmates must be released after serving two-
thirds of their sentence. While the National Parole Board cannot prevent
these offenders from being released, it can require them to meet certain
conditions upon leaving prison.
     Offenders released on parole are subject to mandatory conditions. They
must:
       • travel directly from prison to their place of residence and
         immediately contact their parole officer;
       • remain within Canada;
       • obey the law and keep the peace;
       • inform their parole officer if they are arrested or questioned by the
         police;
       • refrain from owning a weapon, except as authorized by their
         parole officer; and
       • advise their parole officer of any change in address or status.
     The Correctional Service may recommend additional parole conditions.
Based on these recommendations or its own initiative, the National Parole
Board may require offenders to meet other conditions, such as refraining
from contacting the victim, abstaining from alcohol and drugs, and
obtaining treatment. The only major limitation on the optional conditions
is that they must relate to the offender’s previous criminal behaviour.
42
Offenders may have their conditional release revoked and be returned to
prison if they commit a crime, breach their parole conditions or present an
undue risk to the public. More than half of the offenders sent back to
prison are returned for violating a parole condition, rather than for
committing a new crime.




                                                                        43
         SECTION V: VICTIMS’ RIGHTS
               LEGISLATION
    In Canada, most victims’ issues are governed by the federal Criminal
Code, and provincial or territorial victim rights and compensation legislation.

Criminal Code
      The most important federal legislation dealing with victims’ rights is
the Criminal Code. Among other things, it imposes a victim surcharge on
all offenders. The proceeds are used to fund victim assistance programs in
the provinces and territories. In addition, the Criminal Code allows judges
to issue a restitution order requiring the offender to compensate the victim
in certain circumstances. Finally, and perhaps most importantly, the
Criminal Code gives victims the right to present a victim impact statement
prior to the offender’s sentencing.

Victims’ Bill of Rights Legislation
     Most jurisdictions have enacted a Victims’ Bill of Rights or Victims of
Crime Act. The legislation typically outlines how victims should be treated
within the criminal justice system. For example, the legislation may state
that victims should be treated with dignity and protected from retaliation.
The legislation also describes the information that victims are entitled to
receive, and sometimes provides various victims’ services. However, this
legislation varies significantly from province to province. Moreover, many
of the so-called “rights” are granted subject to the discretion of the police,
Crown and other justice officials. Since the legislation is usually framed in
terms of how victims “should,” rather than “must,” be treated, victims
have limited legal recourse if these “rights” are violated.




44
Victims’ Compensation Legislation
      Although the name of the legislation varies, nearly all jurisdictions
provide limited benefits to victims of specified violent crimes. However,
this legislation typically excludes victims of impaired driving.




                                                                        45
     SECTION VI: GLOSSARY OF TERMS
Abrogate: To annul, revoke or repeal. In law, abrogation is the annulment
of a law that was formerly in force by legislative action, constitutional
authority or usage.

Absolute Discharge: An offender who receives an absolute discharge is
deemed not to have been convicted of the offence. However, since the
offender pleaded or was found guilty, he or she will still have a federal
criminal record. A judge can only order a discharge if it is in the
offender’s best interest and is not contrary to public interest. A discharge
cannot be given for any offence that carries a minimum punishment or a
maximum term of imprisonment of 14 years or more.

Accused: A person against whom a criminal proceeding is initiated.

Acquittal: A finding of not guilty in a criminal case.

Act (Statute): A law passed by Parliament or a provincial legislature.

Action: A judicial proceeding in either civil or criminal law.

Adjournment: A temporary postponement of court proceedings.

Affidavit: A sworn, written declaration that certain facts are true.

Affirmation: A non-religious oath given before testifying.

Allege: To suggest that something is true without necessarily being able to
prove it.

Alternative or Extra-Judicial Measures: These programs are used most
often for young offenders and provide an opportunity for young people to
avoid the formal criminal justice system. They may include victim and
46
offender reconciliation, community service and a fine. Such programs are
usually reserved for first-time, non-violent offenders.

Appeal: Examination by a higher court of the decision of a lower court or
tribunal. The higher court may affirm (confirm or uphold), vary (change or
amend) or reverse (overturn) the original decision.

Appearance Notice: A notice issued by a police officer requiring the
accused to appear before a judge or justice of the peace to answer a
charge. An appearance notice is typically given instead of keeping the
accused in custody.

Arraignment: A criminal law hearing in which the accused’s name is
called, the charge is read, and the accused pleads guilty or not guilty. If the
offence is one that gives the accused a choice, he or she will also elect at
the arraignment to be tried in a lower court by a judge, or in a higher court
by a judge or a judge and jury.

Bail: Monetary or other security put up by the accused or someone on the
accused’s behalf to ensure that the accused appears at trial.

Bench Warrant: A court order empowering the police to arrest a person.
These warrants are most often issued in cases of contempt of court, failure
to appear or where an indictment is being laid.

Beyond a Reasonable Doubt: This is the rigorous standard of proof that
Crown counsel must meet in a criminal case. The evidence must be so
complete and convincing that any reasonable doubts as to the accused’s
guilt are erased from the mind of the judge or jury. The Crown must prove
each element of the offence beyond a reasonable doubt.

Blood-Alcohol Concentration (BAC): A BAC is the weight of pure
alcohol in a given volume of blood. In Canada, it is a federal criminal
offence to drive with more than 80 milligrams of alcohol per 100
millilitres of blood (.08%).
                                                                            47
Challenge (jury challenge): An objection to a juror being considered for
a criminal or civil trial. In criminal actions, the Crown and defence are
entitled to an unlimited number of challenges for cause. A juror may be
challenged for cause if he or she is biased, physically unable to perform
the duties of a juror, not listed on the panel, or is unable to speak an
official language of Canada.

Change of Venue: Generally, cases are tried in the courthouse nearest to
where the offence took place. A change of venue involves transferring the
trial to a court in another place. A change in venue may be sought in a
highly sensational or widely publicized case in an effort to ensure that
an impartial jury can be found.

Charge: The term “charge” is used in at least two distinct senses. First, the
term “criminal charge” refers to the underlying criminal offence in issue.
Second, a “charge to the jury” is the statement or address the judge makes
to the jury at the end of the trial, summarizing the evidence and legal prin-
ciples that the jury must consider in reaching its decision.

Circumstantial Evidence: Evidence that a judge or jury can use to infer
certain facts from other proven facts. Circumstantial evidence may be critical
if there is no direct evidence available. For example, assume that there was
no eyewitness to a shooting. The fact that the suspect’s fingerprints were
found on the murder weapon is not direct proof that he or she was the mur-
derer. Rather, it is circumstantial evidence, along with other evidence, from
which a person may infer that the suspect committed the crime.

Community Council: An alternative form of justice practiced by some First
Nations communities.

Complainant: The person who initiates the complaint in an action or pro-
ceeding.


48
Concurrent Sentences: Concurrent sentences are sentences for two or
more criminal offences which are served at the same time. Sentences are
generally served concurrently if the offences arose from the same act or
“transaction.” For example, assume that an impaired driver is speeding
and weaving in and out of traffic before causing a crash. Assume as well
that the impaired driver is convicted of both dangerous driving causing
bodily harm and impaired driving causing bodily harm, and is sentenced to
two years imprisonment for each offence. Since both convictions arose
from a single incident, namely the crash, the judge would likely order that
the sentences be served at the same time. Thus, the total length of
imprisonment would be two years.

Conditional Discharge: A conditional discharge is similar to an absolute
discharge, except that the offender must comply with the conditions
contained in a probation order. If the offender violates these conditions,
the discharge may be revoked. A conviction will then be entered and an
appropriate sentence imposed.

Conditional Sentence of Imprisonment: A conditional sentence allows an
offender to serve his or her term of incarceration in the community,
rather than in prison. Conditional sentences can only be imposed if an
offender is sentenced to imprisonment for less than two years, and the
judge believes that serving the sentence in the community would not pose
a risk to the public and is consistent with the fundamental purpose and
principles of sentencing. An offender who breaches one of the terms of the
conditional sentence may be ordered to serve the remainder of the
sentence in prison.

Confession: A suspect’s out-of-court statement made to an authority
figure, acknowledging responsibility for a crime.

Consecutive Sentences: Consecutive sentences are sentences for two or
more criminal offences which are served one after another. Judges may
order the sentences to be served consecutively if the offences arose from
different acts or “transactions.” For example, assume that an impaired
                                                                        49
driver, who causes a crash and then flees the scene, is convicted of both
impaired driving causing bodily harm and leaving the scene. Since these
two convictions arose from different actions, the judge could order that the
two sentences be served consecutively.

Contempt of Court: A criminal offence that typically involves interfering
with the administration of justice, ignoring a court order or defying a
judge.

Conviction: A court’s formal finding that the accused committed a
criminal offence. A conviction will be registered if the accused pleads
guilty or is found guilty following a trial.

Corroborating Evidence: Evidence that confirms or strengthens evidence
already presented to the court.

Criminal Code: The federal statute that sets out criminal offences,
procedures and sentences.

Cross-Examination: The term cross-examination refers to the lawyer’s
questioning of the other party’s witnesses. Lawyers are given greater
latitude in cross-examination than in questioning their own witnesses.

Crown Counsel: The lawyer representing the state in a criminal trial.

Dangerous Offender: A dangerous offender is an individual who has
been convicted of a serious personal injury offence and found by the court
to be an ongoing danger to society. If a court determines that an individual
is a dangerous offender, he or she will be sentenced to an indeterminate
period of incarceration.

Defence Counsel: The lawyer representing a suspect or accused in a
criminal matter.


50
Diversion: In some jurisdictions, an accused can enter a diversion
program, rather than being subject to the criminal justice procedures.
These programs are often used for young, native or other suspects who
may have special needs. If the suspect successfully completes the
diversion program, the criminal charges are usually dropped.

Docket: A list of cases scheduled for a particular court calendar.

Drug Recognition Evaluation (DRE): A 12-stage test conducted by a
trained officer to determine if a person’s ability to drive is impaired by
drugs and, if so, to identify the class of drug involved.

Dual Procedure (Hybrid or Crown Electable) Offence: In Canada,
criminal offences are divided into three categories: summary conviction,
indictable and dual procedure offences. In a dual procedure offence, the
Crown has the choice to proceed by summary conviction or indictment.
The distinction between summary conviction and indictable offences is
based on the formality of the procedures used to try them.

Election by the Accused: The Criminal Code gives an accused charged
with certain offences the choice of being tried by a judge in a lower
court, a judge in a higher court, or by a judge and jury in a higher court.

Election by the Crown: In cases involving dual procedure offences, the
Crown can elect to prosecute the case by summary conviction or
indictment. The Crown is more likely to proceed by indictment if the
accused’s conduct was particularly blameworthy, the injuries or losses
were greater than usual, or the accused is a repeat offender.

Examination-in-Chief (Direct Examination): The term examination-in-
chief refers to a lawyer’s questioning of his or her own witnesses in court.

Exclusion of Witnesses: In a criminal trial, the witnesses are typically
excluded from the court during the testimony of other witnesses. This is

                                                                         51
done to prevent a witness from being influenced by the testimony of the
other witnesses.

Exhibit: A document or object shown to the court as evidence in a trial.
The court clerk assigns each exhibit a number or letter as it is introduced
to facilitate future reference during the trial.

Hearing: A legal proceeding held by a judicial, quasi-judicial or
administrative tribunal.

Hearsay: A hearsay statement is a statement that a witness heard another
person make. As a general rule, hearsay statements are inadmissible in
evidence. However, there are numerous complex exceptions to this rule.

Impaired Driving: This term is often used to refer to the Criminal
Code offence of operating or having care or control of a motor vehicle when
one’s ability to do so is impaired by alcohol or a drug.

Indictable Offence: The category of criminal offences that are tried by
indictment. The procedures used in processing indictable offences are
more complex than those used to try summary conviction offences. For
example, in most indictable offences, the accused has the right to elect to
be tried in a higher court by a judge, or by a judge and jury. Generally, the
indictable offences are more serious than the summary conviction
offences, and carry lengthier maximum sentences.

Information: An accusation made under oath, before a judge or justice of
the peace, that an individual has committed an offence. Typically, it is
the police who “lay” or “swear” the information. If the judge or justice of
the peace concludes that there is sufficient evidence of an offence, he or she
may issue a summons or a warrant for the accused’s arrest.

Intermittent Sentence: A sentence of imprisonment that is served in
intervals, usually on weekends. Judges can only impose an intermittent
sentence if the term of imprisonment is 90 days or less. Offenders serving
52
an intermittent sentence must comply with the conditions of a probation
order when not confined.

Judgment: The decision or determination of a court on a matter submitted
to it.

Judicial Interim Release: A judicial order releasing the accused from
custody prior to trial. The release is unconditional, unless the Crown
can establish reasons (“show cause”) for imposing certain conditions. A
judicial interim release cannot be granted for certain serious criminal
offences, such as murder.

Justice of the Peace: A judge appointed by the provincial Lieutenant-
Governor to perform a number of limited functions, such as issuing
summons and warrants.

Legal Aid: A program that assists those who require a lawyer but cannot
afford one. In some provinces, legal aid may only be available for the more
serious criminal offences.

Litigation: The process of trying a dispute in court.

Mandatory Parole (Statutory Release): Inmates are generally given one
day of earned remission for every two days served with good behaviour.
Mandatory parole is the term used to describe situations in which the
inmate is released as a result of his or her accumulated earned remission.
Inmates released under mandatory parole are supervised by a parole
officer.

Mistrial: If a judge orders a mistrial, the proceedings are stopped without
reaching a decision. A mistrial will be ordered when a jury is unable to
reach a verdict, or there has been a serious procedural error or serious
misconduct that would result in an unfair trial.


                                                                        53
Occurrence Number: The identification number that police assign to a
particular criminal investigation.

Offence: This term is typically used to refer to federal crimes and
violations of provincial or territorial law.

Offender: A person who has pleaded guilty to or been found guilty of
an offence.

Parole: The release of an offender from prison prior to the end of his or
her sentence. Offenders on parole continue to serve their sentences outside
the prison under the supervision of a parole officer.

Perjury: Perjury is a federal criminal offence that involves lying or
knowingly making a false statement under oath or in a sworn affidavit.

Plea-Bargaining: Discussions between the Crown and defence counsel
concerning the criminal charges and the accused’s potential willingness to
plead guilty. The Crown may accept a guilty plea to a lesser charge rather
than incurring the expense of a trial on the original charge. The Crown
may also agree to make a joint recommendation on the appropriate
sentence to the judge, if the accused agrees to plead guilty.

Preliminary Hearing: A hearing to determine if there is sufficient
evidence to commit an accused for trial. Offenders who are tried by
indictment are typically entitled to a preliminary hearing.

Pre-Sentence Report: Prior to sentencing, the judge may order a
probation officer to prepare a pre-sentence report. The report summarizes
the accused’s family life, personal situation and background. Judges use
pre-sentence reports to assist them in determining an appropriate sentence.

Probation: A sentence that requires the offender to obey certain stipulated
conditions. Some conditions, such as keeping the peace and being of good
behaviour, are compulsory in every probation order. Other conditions are
54
left to the judge’s discretion. An offender who receives a conditional
discharge or a suspended sentence will be subject to a probation order.
Judges have discretion to issue probation orders in conjunction with a fine,
and intermittent or conditional sentences.
    Probation is only available if the offence does not carry a mandatory
jail term. The probation order can be for no more than three years. It is a
federal criminal offence to wilfully violate any term of probation without a
reasonable excuse.

Psychiatric Assessment: An assessment of an accused by a qualified
medical professional to determine if the accused is fit to stand trial.

Recognizance: An accused’s formal promise to appear for a specified
legal proceeding. Depending on the circumstances, the accused may enter
the recognizance before a police officer or a judicial officer.

Regulation: Legislation enacted under the authority of an act (statute).
The enabling act typically delegates authority to enact regulations to the
Governor-General in Council (the federal cabinet), the Lieutenant-
Governor in Council (a provincial cabinet), a Minister, a government
official, or an administrative board. Typically, the regulations set out
detailed provisions that are not essential to include in the act. The power to
enact regulations gives the government greater flexibility in passing laws.

Remand: To adjourn a hearing or proceeding to a later date, requiring
the accused to be held in custody unless granted bail.

Search Warrant: A warrant issued by a judge authorizing the police
to enter and search a place for evidence of an offence.

Sentence: The punishment imposed on an offender.

Solicitor-Client Privilege: A client’s right to demand that no statement
made to his or her lawyer will be disclosed without his or her consent. The
client may, expressly or implicitly, waive the privilege. Solicitor-client
                                                                           55
privilege is not absolute, and a lawyer may breach the privilege to prevent
impending and serious physical harm to an identified victim or class of
victims.

Stay: A court ruling that stops or prevents further legal proceedings.

Subpoena: A court order which typically compels an individual to hand
over certain documents or to attend a legal proceeding and testify.

Summary Conviction Offence: The category of offences tried by
summary conviction. These offences are tried in the lower courts and
typically involve less serious behaviour than indictable offences.
Similarly, the sentences for summary conviction offences are usually far
less onerous than those for indictable offences.

Suspended Sentence: If an individual is convicted of an offence that does
not have a minimum penalty, the judge may suspend the passing of
sentence and order him or her to be released on probation. If the offender
breaches probation, the judge may order the offender returned to court and
sentence him or her for the original offence. In deciding whether to
impose a suspended sentence, the judge must consider the offender’s age
and character, and the nature and circumstances of the offence.

Testimony: Statements that witnesses make in court under oath or
affirmation.

Transcript: An official typed copy of all the statements made during a
legal proceeding.

Verdict: A verdict is the jury’s or judge’s finding in a case. In criminal
cases, the jury’s verdict must be unanimous.

Victim Surcharge: A victim surcharge is a monetary penalty imposed on
offenders, in addition to any other punishment. It is paid to the provincial

56
or territorial governments to provide funds for victims programs, services
and assistance.

Voir Dire: A hearing held during a trial on the admissibility of contested
evidence or the competency of a witness. The jury is not usually present
and evidence presented during the voir dire typically cannot be considered
when reaching a verdict.

Young Offenders Act: A federal statute that established how young people
were to be treated, tried and sentenced in criminal proceedings. This
statute was replaced by the Youth Criminal Justice Act, which came into
force on April 1, 2003.

Youth Criminal Justice Act (YCJA): A federal statute applying to youth
aged twelve to seventeen. It recognizes young people’s reduced level of
maturity, provides broader legal protection to youth charged with
offences, and emphasizes rehabilitation, reintegration and timely
intervention. The YCJA also contains special sentencing and probation
provisions.




                                                                       57
MADD Canada (Mothers Against Drunk Driving) is a national grassroots charitable
organization with Chapters and Community Leaders across the country. MADD
Canada’s local groups are run by volunteers and include not only mothers, but fathers,
friends, business professionals, experts in the impaired driving field, concerned
citizens, and young people who want to make a difference in the fight against
impaired driving.


What makes MADD Canada unique?
Emotional Support. Victim Services Volunteers and victims from local Chapters
offer one-to-one peer support.

Court Accompaniment and Support. Local Chapter members volunteer to go to
court with a victim and/or the victim’s family whenever possible.

Helping Victims Understand Their Rights. Volunteers assist victims in
understanding the criminal justice system, their right to information and their right
to submit a Victim Impact Statement to the court. Volunteers will also assist victims
in preparing their statements.

Annual Candlelight Vigil & Victims’ Weekend. These events give victims an
opportunity to come together to honour and remember their loved one(s) and to
acknowledge those injured. The Victims’ Weekend includes educational presentations
by professionals on grief, bereavement, coping with injury, and related issues. It also
provides time for reflection in a supportive environment.

A National Resource Guide. This publication contains federal and provincial
resources for all victims of crime, with a focus on victims of impaired driving.

Lending Library. The National Office has books that are available on loan. Topics
range from coping with injury, grief and bereavement to restorative justice.

Other Free Brochures: Coping with Life After Injury; Trauma, Loss and
Bereavement; and Holidays and Hope. All brochures can be downloaded from
www.madd.ca.



58
                   You can make a difference!
• Don’t drink or use drugs and drive.
• Talk to your family about drinking, drugs and driving.
• Be responsible – don’t let guests drive impaired.
• If you witness a driver who appears to be impaired, report him or her to the
  police by dialing 911.
• If you or someone you love becomes a victim, call 1-800-665-MADD or your
  local Chapter for help.
• Get involved by volunteering for your local Chapter or Community Leader.
  If there isn’t one in your area, contact MADD Canada and ask to start one.
• Become a member of MADD Canada.
• Donate to MADD Canada through our web site at www.madd.ca or contact us at
  1-800-665-6233.
• Show your support for safe driving by tying a MADD Canada red ribbon to your
  vehicle.



  For Victim Support, call MADD Canada’s toll-free line:
                     1-800-665-6233




          MADD Canada (Mothers Against Drunk Driving)
              2010 Winston Park Drive, Suite 500
                   Oakville, ON L6H 5R7
                TOLL FREE: 1-800-665-6233

      Phone: 905-829-8805                Fax: 905-829-8860
      Internet: www.madd.ca              E-mail: info@madd.ca
              Registered Charitable Number: 13907 2060 RR0001
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