A VICTIM'S GUIDE TO THE CANADIAN CRIMINAL JUSTICE SYSTEM

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. 1

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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. 3

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. 4

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 5

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- 7

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. 11

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. 12

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 13

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 15

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 drugimpaired 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 DREtesting 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 before driving. The defence, supported by toxicological evidence, then contended 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 amendments 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 Driving while impaired Driving with a BAC >.08% Failing to provide a sample or participate in testing 30 First offence: $1,000 fine and a 1-year driving prohibition* Second offence: 30-day sentence and a 2-year driving prohibition* Subsequent offence: 120-day sentence and a 3-year driving prohibition* First offence: $2,000 fine, 18-month sentence and a 3-year driving prohibition Second offence: $2,000 fine, 18-month sentence and a 5-year driving prohibition Indictment First offence: 5-year sentence, a 3-year driving prohibition and any fine the judge deems appropriate Second offence: 5-year sentence, a 5-year driving 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

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 Driving with a BAC >.08% and causing bodily harm Failing to provide a sample or participate in testing, and causing bodily harm No minimum penalty 10-year sentence, a 10- year driving prohibition and any fine the judge deems appropriate Impaired driving causing death Driving with a BAC >.08% and causing death Failing to provide a sample or participate in testing, and causing death No minimum penalty Life sentence, and any driving prohibition and/or fine the judge deems appropriate 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. 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 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 impaired driving offence No minimum penalty Indictment 5-year sentence, a 3-year driving prohibition and any fine the judge deems appropriate

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 twothirds 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

46 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

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 principles 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 murderer. 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 proceeding. 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-inchief 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 59