Canada is no place to be charged with criminal driving under the influence of an intoxicant (DUI), “Operation while impaired” in the language Section 253 of the Criminal Code of Canada. Under Section 255, mandatory penalties are a $1,000 fine for a first and 30 days of jail time for a second offense. Impaired drivers who cause personal injury may be sentenced to ten years in jail, life in jail if they cause a death. The federal government imposes these penalties; the provinces and territories suspend driver’s licenses, in Ontario automatically for 90 days after arrest, for one year after conviction, and restoration is not automatic at the end of the year but subject to completion of a remedial measures program and payment of high fees.
Defendants have few options. First offenders may try for case diversion by what the Canadians call “alternative measures,” other defendants fight the charges in trials, and the rest, the majority, negotiate guilty plea agreements for reduced penalties. It is often recommended to seek advice from an experience DUI lawyer Calgary to help with this process.
Sections 716–717 define alternative measures as those other than judicial proceedings not inconsistent with the protection and interests of society and the victims of offenses. There is no nationally uniform alternative measures program. Policies vary by province and territory and even by provincial or territorial region. In Ontario, each courthouse has a different diversion program and eligibility requirements. One constant for eligibility is prosecutorial consent. The Crown Attorney’s office always ultimately determines the defendant’s eligibility, and prior encounters with law enforcement are usually cause for ineligibility even if there were no formal criminal charges.
Generally, alternative measures are for lesser offenses with considerable variation across the country. In Quebec, all offenses are eligible for consideration for alternative measures. Other provinces and territories expressly exclude drug and impaired-driving offenses. The decision to include or exclude offenses for consideration usually reflects the needs of the jurisdiction but in any event is in essence not mandatory but discretionary for the prosecuting authority. Defendants always should pursue this option, for what’s to lose? A skilled, experienced criminal defense or DUI lawyer can present to the prosecutor a persuasive case for alternative measures. It is not necessary for the defendant to have assistance of counsel to request consideration, but the advantages of this approach are so obvious that only foolish defendants would not employ if in any way possible.
Once in the alternative measures program, the defendant’s tasks might be personal service or financial compensation to a victim, community service, attendance at educational sessions, personal or written apology, or essays or presentations related to the offense. After completion of the program to the prosecutor’s satisfaction, the government recommends to the court dismissal of the criminal charge.
Defendants deemed ineligible or unsuitable for alternative measures should not abandon all hope. A clever criminal lawyer can select from the facts of any case a basis for a theory on which to extend the legal presumption of innocence and on that theory raise arguments for acquittal. Defendants do well to recall that every burden of proof is on the government and that a strategy that merely attacks and discredits the prosecutor’s evidence to the point where it cannot support a conviction in the mind of a fair-minded juror is perfectly proper under the law.
Pulled over while driving, the defendant is taken to the police station for testing that reveals blood-alcohol concentration. The government has to prove blood-alcohol concentration at the time of driving, not at the time of testing. How do they prove that the defendant was over the legal limit at the time of driving? The most common method is by use of a “presumption back” to the time of driving, an evidentiary shortcut in impaired operation practice. If unable to rely on the presumption back, the government cannot prove its case. As an example, a pre-condition for the presumption is that the police administer the testing as soon as practicable. In many cases, from the arrest to the testing there is a substantial period of time for which the government lacks evidence to explain. Without this evidence, the government may not be able to demonstrate timely testing for the presumption back, without which it cannot prove blood alcohol concentration at the time of driving.
Win or lose, the defendant who fights for legal rights has more time and opportunity to make with dignified, respectful conduct a favorable impression on the prosecutor and the court than does the defendant who pleads guilty. Of course, the conscientious criminal defense lawyer will do everything possible for the defendant in either case.