BOURDON DEFENCE

Changes are coming to drunk driving laws in Alberta. The new law, set to take effect in July, would largely decriminalize drunk driving for first-time offenders in Alberta. The changes are the result of a May 2017 decision by the Court of Appeal of Alberta that found that Alberta’s drunk driving laws, linking suspension of driving privileges to the outcome of the criminal court case, were unconstitutional.

Bill 29, the new legislation, would make it much less likely that first-time offenders would face criminal charges. Passed in November 2017, the new legislation has not yet gone into effect. Therefore, it’s most likely that individuals charged with the various offences of drunken driving still will face criminal penalties under existing law until at least July 2018. Because the Court of Appeal of Alberta declared the existing law unconstitutional, however, it is not clear whether that will hold true for cases pending when the new law takes effect.

How Will DUI Law Change?

Bill 29 will give wide latitude to the officer making a stop for suspicion of impaired driving regarding how to handle the case. The officer will have considerable discretion in deciding whether to criminally charge drivers whose Breathalyzer tests show that they have consumed more than the legal limit for blood-alcohol content. The legislation also applies to driving under the influence of cannabis.

First-time offenders will likely receive roadside administrative sanctions and will not face criminal charges. These sanctions could include fines, roadside towing, and licence suspensions issued by police on the scene.

Bill 29 provides for a three-month licence suspension for drivers who test at more than the legal limit. Drivers who agree to join the ignition interlock program for a year can get their licences back. Otherwise, their licences are suspended for another year.

DUI prosecutions consume about 40 percent of the time spent on trials in provincial courts. Thus, some critics have argued that the legislation is primarily financially motivated, because it is likely to result in increased revenue from fines coupled with reduced court costs for the province. Other critics have complained that giving such broad discretion to the stopping officer does away with the presumption of innocence.

For drivers charged with DUI, however—at least after the legislation takes effect in July—the legislation seems to provide an avenue to avoid criminal charges under certain circumstances. While the law still imposes legal consequences, it provides an avenue—apparently a very broad avenue, at that—for the stopping officer to deal with the situation using administrative penalties rather than criminal charges.

Since the legislation has not yet gone into effect, it is not clear how it will influence legal proceedings for DUI charges. Whether the officer’s roadside decisions on how to handle the case are subject to legal challenge, for instance, is not yet clear.

With Changes Coming in Alberta DUI Laws, if You Are Facing DUI Charges, Contact the Lawyers of Bourdon Defence

The DUI laws are changing in Alberta. If you are facing DUI charges, consult a lawyer to determine if the impending changes might affect your case. Even if they do not, you will need a lawyer to defend you against these charges—and the lawyers of Bourdon Defence assist people like you every day. Reach us at (403) 474-4143 or through our website to discuss your case.

What Does the “Reasonable Doubt” Standard Mean?

When you are facing criminal charges, the Crown is required to prove that you are guilty “beyond a reasonable doubt.” In addition, the Crown bears the entire burden of proof in criminal cases and the defendant does not have to testify, nor call any witnesses, nor prove anything at all. The burden of proof is on the Crown—and it is a high burden.

The burden of proof in criminal cases is high because the consequences for the accused likewise are high. Defendants who face criminal charges, particularly for indictable offences, generally face time in prison and other harsh consequences. Because Canada has a system that presumes that people are innocent until proven guilty, the burden of proof required to prove guilt is high beforethe Crown can send them to prison and take their freedom away.

“Reasonable Doubt” Does Not Mean “Any Doubt”

The Supreme Court of Canada has ruled that jurors should receive instruction that “reasonable doubt” cannot consist of doubt based on sympathy for the accused or any prejudice, for whatever reason, for or against anyone involved in the case. To make a doubt reasonable, jurors must root it in logic, reason, or common sense. They can base it on the evidence presented at trial, or the lack of evidence presented at trial. For example, lack of evidence on a central element of a criminal case could result in reasonable doubt.

Furthermore, the Crown is not required to prove its case beyond all doubt. Proof to an absolute certainty is likely impossible in most cases. Even if the crime was recorded on audio and video of excellent quality, clearly portraying the accused in the act of committing the crime, in modern times, the use of computer-generated images could throw at least a tiny doubt on the veracity of the recordings.

In a case involving indictable offences, the accused can choose to have a only judge in hear the case provincial court, or a judge and jury to hear it in superior court, or a judge alone to try it in superior court. When only the judge hears the case, the judge is calledthe “trier of fact.” When a jury is chosen, the jury constitutes the trier of fact. The Crown must convince the trier of fact of the accused’s guilt beyond a reasonable doubt of every element of the crime in question.

To convict in a criminal case, the trier of fact needs to feel reasonably sure that the accused person committed the crime—notabsolutely certain. Believing that the accused probably committed the offence, or might have done so, or being suspicious of the accused, is not enough to prove guilt. That nebulous level of certainty—which is not certainty at all—can only result in acquittal. If a juror isn’t sure of guilt based on rational, articulable reasons, the Crown has not met its burden of proof.

If You Are Facing Criminal Charges in the Calgary area, Contact the Lawyers of Bourdon Defence

A conviction of criminal charges can carry steep consequences, in many cases including substantial time in jail. If you are facing such charges, the Crown faces a high standard of proof. Still, many people are convicted of offences, and you should hire an experienced lawyer to help you defend yourself against such charges and hold the Crown to that high standard.

The lawyers of Bourdon Defence can assist you in protecting your rights under such circumstances. Reach us at (403) 474-4143 or through our website to learn more.

If You Are Charged With Theft, You Have Defences Available

Theft charges are serious accusations. Theft, which is taking something that does not belong to you without the permission of the rightful owner, is punishable by as many as 10 years in prison if the value of the property stolen is more than $5,000. Even if the property stolen is less than $5,000, the penalty may still range to as many as two years in prison. Either way, the penalty is steep, and you do not want to pay the price for either level of punishment.

That is especially true if you have defences to a theft accusation. Legally speaking, two broad categories of defences apply specifically to theft charges. They are:

Colour of right: This defence is based on the contention that you actually had the right to possess the property you are accused of stealing. A colour of right defence can apply when you paid for the property or if the former owner gave you the property. In both instances, colour of right is a question of factthat the evidence must prove.

Honest but mistaken belief: To use this defence, you must show that you mistakenly believed that the property was yours, or that you forgot you were in possession of the property. Obviously, once again, this defence is a question of fact that the evidence must support.

Many General Legal Defences Can Apply to Theft Charges

While those defences are specific to theft, other, more generalized defences apply to many crimes, but still apply in cases of theft. Many of these defences rely upon a lack of mens rea. This term refers to the legal concept that the accused intended to commit the crime of which the person is accused. You must have the requisite mental state to commit the crime—mens rea—for the Crown to find you guilty.

A number of defences address the potential lack of mens rea. They include:

Automatism: This defence requires involuntary conduct, meaning the accused had no conscious control over the allegedly criminal actions. This requires either a mental disorder, such as temporary insanity, or a non-mental disorder, such as a physical blow that caused damage that prevented the accused from understanding the actions of committing the crime. The former is extraordinarily difficult to prove. The latter is simply rare.

Consent: This can defend against theft charges if the owner of the property in question consented to the accused taking or borrowing it. If you raise consent as a defence, the Crown must show an absence of consent.

Duress or compulsion: This defence is limited by the requirement that the accused show that the duress happened when the crime occurred. Evidence would include such things as provable threats of death or bodily harm should the accused refuse to commit the theft in question.

Other defences are even less common and harder to prove, such as entrapment, insanity, necessity, mistake of fact, mistake of law, and intoxication (the latter of which generally is not a defence to a criminal charge). These are less common because they are harder to prove. Nonetheless, they remain among the potential defences to theft charges that might apply to your case. Consult alawyer to determine if these or other defences apply.

If You Face Theft Charges in the Calgary Area, You May Have Defences. Contact the Lawyers of Bourdon Defence

While theft charges carry serious consequences, you may have defences available to you. These legal defences can help you beat theft charges, but don’t expect to win your case on your own. You need legal assistance. The lawyers of Bourdon Defense can assist you. Call us at (403) 474-4143 or write us through our website.

How Can I Tell if My Impaired Driving Case Will Go to Trial?

The short answer is, you can’t. Many factors go into whether it is a good idea for you to fight charges at trial or try to negotiate the best deal you can get before trial. Those factors, of course, stem from your individual case. Some people charged with impaired driving choose to fight those charges and wind up going to trial, while others do not. Both decisions involve complex, fact-based reasons.

Whether Your Case Goes to Trial Often Depends on You

Many DUI defendants—and their lawyers—decide to fight the charges, even to the point of going to trial, based on strategic decisions. For instance, in Alberta, drunk driving cases take up about 40 percent of the courts’ trial time. The burdens that DUI cases place on the courts can actually work to a defendant’s advantage. Prosecutors may agree to a more favorable deal for a DUI defendant to avoid bogging down the court and taking time away from prosecuting more serious crimes.

Part of this incentive for deal making by prosecutors could lie in Canada’s legal system. Under Canada’s Charter of Rights andFreedoms, every person accused of a crime is presumed innocent until proven guilty. Furthermore, anyone accused of a crime must be informed of what the offence is so that the accused knows what the Crown must prove to obtain a conviction. The trial must take place within a reasonable time, and the court must set reasonable bail. These requirements can impose burdens upon the court system that prosecutors can more easily deal with by reaching plea deals and avoiding trials.

Some provinces, such as Ontario, are seeing backlogs that make trials almost impossible. It takes an average of more than six months to prosecute a DUI case in Ontario. In the Toronto metropolitan area, the average time is nearly 11 months, involving eight court appearances. These backlogs can serve as an incentive for prosecutors to make plea deals rather than take cases to trial, simply to reduce the backlog.

Furthermore, the backlog contributes to an inefficiency of prosecution. For cases in Ontario, more than 20 percent of drunk driving cases are stayed or withdrawn before trial. The reasons vary from witness availability to evidence issues. But the fact is that many factors can make it less likely your DUI case will go to trial.

Coming DUI Law Changes in Alberta Make Trials Less Likely

Recent changes to DUI laws in Alberta, which take effect in July, make it less likely that impaired-driving cases will go to trial. Under the new law, police officers will have broad discretion to decide whether to charge first-time impaired-driving offenders with criminal offences. Instead, the officers may impose roadside administrative sanctions, such as towing, fines, and licence suspensions in lieu of criminal charges. The change in law intends, at least in part, to reduce the number of DUI cases that go to trial and tie up the court system.

If You Are Charged With Impaired Driving in the Calgary Area, Contact the Lawyers of Bourdon Defence

If you face charges of impaired driving and are wondering about the chances of your case going to trial, consult a lawyer to determine where you stand legally. You will need experienced guidance to determine how to proceed. The lawyers of Bourdon Defense regularly assist people accused of DUIs in the Calgary area in both plea agreements and trials. Reach us at (403) 474-4143 or through our website.

How Can I Tell if My Impaired Driving Case Go to Trial?

Whether Your Case Goes to Trial Often Depends on You

Coming DUI Law Changes in Alberta Make Trials Less Likely

If You Are Charged With Impaired Driving in the Calgary Area, Contact the Lawyers of Bourdon Defence

Despite Changing Public Attitudes, Marijuana Offences Can Result in Serious Penalties

Over the past several years, the Canadian public and law enforcement’s attitude toward marijuana use has become increasingly more lax, especially in urban areas. Although changes to current marijuana laws on the books are coming sometime in 2018, no one under the age of 19 is currently permitted to consume or possess marijuana in Calgary, Alberta. Moreover, until the currently pending bill becomes law, the marijuana laws that are currently on the books will still be enforceable.

Canada drug penalties can be harsh, and if you have been charged with or convicted of possessing, selling, or trafficking marijuana, the Calgary criminal defence lawyers at Bourdon Defence may be able to assist you with your case. Our lawyers can review every aspect of your case and work toward an outcome that is favorable to you.

Current Status of Marijuana Laws

Under the current law, cannabis – or marijuana – is a Schedule II drug under the Controlled Drug and Substances Act. Generally speaking, unless the drug is otherwise regulated for production or is being distributed for a medical purpose, it is currently illegal to possess, sell, or distribute marijuana in Canada. The target date for the currently pending bill is July of 2018. Until that time, however, the current marijuana laws which are on the books will remain in effect. The same goes for the current penalties and criminal sentences associated with marijuana use and possession.

Potential Penalties upon Conviction

If you are found to be in possession of a low quantity of marijuana (i.e. less than 8 grams), and it is your first offence, you may qualify for the Alternative Measures Program (AMP). If you complete the required community service hours and drug treatment or counseling, you will be withdrawn from the program without a criminal record. Possession of a higher quantity of marijuana (i.e. up to 30 grams) is a summary conviction offence which carries a penalty of 6 months imprisonment, a $1,000 fine, or both. A second offence can result in up to 1 year of imprisonment, a $2,000 fine, or both.

In other cases, the Crown may proceed by way of an indictment or a summary conviction. In the case of marijuana prosecuted as an indictable offence, an offender can be incarcerated for close to 5 years. Drug trafficking charges carry even harsher penalties. For example, marijuana trafficking or possession for purposes of trafficking can result in 5 years minus a day for amounts under 30 kilograms, and life imprisonment for any amount over 30 kilograms. A conviction for cultivation of marijuana can result in up to 7 years of imprisonment.

Contact a Calgary Criminal Defence Lawyer Today

If you have sustained a criminal charge for marijuana use, possession, sale, distribution, or trafficking, the penalties can be severe and may impact every aspect of your life. The lawyers at Bourdon Defence offer result-oriented legal representation. To schedule a free consultation or case evaluation with a Calgary criminal defence lawyer, please call us today at 403-474-4143 or contact us online.

Will Marijuana Be Legal in Canada? What You Need to Know

Excited to try pot? Do you regret not sampling “reefer madness” while sitting in an abandoned parking lot in high school? If Prime Minister Justin Trudeau has his way, you could be taking a toke from your first joint by summer 2018. Bill C-45 would make cannabis legal across Canada and finally allow Canadians their first legal taste of marijuana.

Pay Attention to Your Provincial Law

Although Bill C-45 will make pot legal across Canada, each province and territory will still set their own marijuana laws to regulate how much you can possess and where. For example, you can possess a minimum of 30 grams of dried cannabis publicly, since that will be the federal standard. But some provinces, such as Alberta, will allow you to possess more. In fact, Alberta doesn’t intend to limit possession amounts in private residences, so you can definitely stock up at home.

Bill C-45 also allows people to grow up to four marijuana plants per residence, though some provinces will be able to ban it. Manitoba and Quebec have indicated that they intend to ban the personal growth of marijuana plants, but Alberta hasn’t.

Minimum Age

The minimum age should be 18—along the lines of the minimum drinking age, which is 18 or 19 in all provinces. However, your province or territory can raise the minimum age for cannabis consumption, so pay close attention to your local law before you head out to buy your first supply of hash.

Where Can I Buy Marijuana?

Like almost everything else, it will depend on where you live. Each province and territory has the right to decide whether you can buy from privately owned or publicly owned stores. Some provinces will probably require that you buy from publicly-owned stores, just as you do alcohol. However, some provinces are creating stand-alone subsidiaries that only sell marijuana and not alcohol. In Alberta specifically, the government plans to allow privately-run storefronts; you can also purchase from government-operated online sales.

Where Can I Smoke?

The past few decades have seen a crackdown on smoking tobacco in public, and you shouldn’t expect to be able to smoke weed wherever you can’t have a regular old cigarette. In Alberta, you’ll only be able to smoke your joint where smoking tobacco is permitted. Other providences have yet to determine where smoking marijuana will be legal.

Be Careful Smoking and Driving

Current tests to measure blood alcohol concentration don’t work so well with marijuana, yet drivers can be as easily impaired after a few joints as they can after throwing back a few steins of beer. The government is working on using roadside saliva tests to measure marijuana use, though these can’t precisely measure whether you are impaired. To protect themselves, some provinces have adopted a zero-tolerance policy, essentially making it illegal to have any amount of cannabis in your system while you are driving.

Contact an Alberta Criminal Defence Lawyer

Although legalization is a dream for many, the government isn’t legalizing all uses of marijuana, and the new law will lay traps for the unwary. If you carry too much marijuana or purchase it from an unauthorized dealer, you could be prosecuted. At Bourdon Defence, we’ve stayed on top of the passage of Bill C-45 and the response from the Alberta government. If you or a loved one is arrested for illegal possession, contact us at 403-474-4143.