Category Archives: News & Views

What does “Over 80” mean?

“Over 80” and “Driving with Excess Blood Alcohol” are the same thing. Specifically, they are a criminal charge, and refer to an accused person who has operated a motor vehicle with more than 80 milligrams of alcohol in their blood. We often hear people say, “I wasn’t drunk. How could they charge me with Driving with Excess Blood Alcohol?”Being charged with a single count of “Driving with Excess Blood Alcohol” does not mean that a person was impaired or drunk. Rather, it simply means that they drove with more than the permissible amount of alcohol in their system. A person can look and feel perfectly sober, yet still blow over the legal limit.

How do I know if I’m being investigated for “Over 80”?

The investigation starts with an individual being stopped. An individual may be stopped as a result of a RIDE program or an investigation relating to a Highway Traffic Act (H.T.A.). If the officer suspects that the driver is operating a motor vehicle with alcohol in their body, they will demand that the driver provide a sample of their breath into an “Approved Screening Device” at the roadside. In this circumstance, the police do not necessarily believe that the driver is “impaired”, rather they have a suspicion that the driver has consumed alcohol and is operating a motor vehicle. If the driver fails the approved screening device, then the officer has grounds to arrest the driver and take them back to the station to provide further samples of their breath into a breathalyzer. Once at the station, the arrested party will be required to provide two samples of their breath into a breathalyzer. If both of these samples of the accused’s blood alcohol concentration (B.A.C.) are over 80 milligrams of alcohol per 100 millilitres of blood, then the individual will be charged with “Driving with Excess Blood Alcohol/Over 80

How many drinks do I have to have to be “over 80”

Often, we are asked, “How many drinks does it take to be over the legal limit?” Our answer is the same every time: it depends. “Blood Alcohol Concentration” (BAC) depends on a number of factors such as gender, height, weight, race etc. There are a number of apps and charts on the internet that allow users to input the number, volume and type of drinks consumed over a certain period of time, in order to calculate “projected” B.A.C. However, one should be cautious, as these methods of calculation are not always accurat

It is not that difficult for some people to attain a B.A.C. in excess of the legal limit. A “standard drink” which you purchase at a bar has 13.5 milligrams of alcohol. In other words, 12 ounces (341 ml) of beer or cider with 5 per cent alcohol, 5 ounces (140 ml) of wine with 12 per cent alcohol or 1.5 ounces (43 ml) of liquor (such vodka, gin, or whiskey) with 40 per cent alcohol, all contain 13.5 milligrams of alcohol. Things like drinking a lot of water, having a coffee, eating, or “walking it off” do not decrease your B.A.C. Decreasing your B.A.C. simply takes time.

Disclosure: What You Need To Know

Every individual charged with a criminal offence will receive a “disclosure” package. The primary purpose of disclosure is to ensure that an Accused party knows the case to be met, and is able to make full answer and defence. Generally, the Crown has an obligation to disclose all information in its possession and control unless said information is clearly irrelevant or subject to a claim of privilege.

The following legal principles govern the provision of disclosure in Canadian criminal cases

[Regina v. Stinchcombe (1991), 3 S.C.R. 326]:

  • The Crown has a legal duty to disclose all relevant information to the Defence.
  • The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.
  • The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure.
  • Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information.
  • Subject to the Crown’s discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory.
  • All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses.

Typically the following items will be in a disclosure package:

  • Synopsis (summary of the allegations)
  • Statements of the Accused (written; audiotaped; or, videotaped)
  • Statements of civilian witnesses (written; audiotaped; or, videotaped)
  • Police officer memorandum notes
  • Criminal record of the Accused
  • Copies of any associated court orders (e.g. Recognizance of Bail, Probation Order, etc.)
  • If applicable: surveillance video; documentary evidence (e.g. banking records); Expert Reports; etc.

It is important to note that “initial” disclosure packages do not include everything the Crown is obligated to disclose. For example, in some jurisdictions an Accused party has to request a copy of the 911 call. This is just the tip of the proverbial iceberg! It is important to choose an experienced lawyer who will request all relevant information. This requirement is even more heightened in “Drinking and Driving” cases (Impaired Operation, Excess Blood Alcohol, Impaired Care and Control, and Refuse/Failure to Provide a Breath Sample). Given the majority of these types of cases rely upon machinery (roadside Approved Screening Device and the Intoxilyzer at the police station), it is imperative that one’s lawyer requests the underlying technical data.

Ultimately, the more information you have, the greater the likelihood of success.

I was just charged with a D.U.I I’m going to go and plead guilty on my first court date…

As a firm that deals with numerous individuals charged with “D.U.I” cases (Impaired Driving; Driving with Excess Blood Alcohol; Care and Control; and, Refuse/Failure to Provide Breath Sample), we often encounter those who simply want to “plead guilty” at their first court appearance. We understand that being charged with a criminal offence can cause a great deal of stress and anxiety. However, it’s important to take a step back and look at the bigger picture before you decide to plead guilty on your first appearance. Through our experience defending D.U.I. cases (Impaired Driving; Driving with Excess Blood Alcohol; Care and Control; and, Refuse/Failure to Provide Breath Sample), we advise potential clients that it’s NEVER wise to plead guilty on your first appearance. Here are some reasons why:

1. You don’t know how strong the case against you is.

  • The importance of your first appearance is to obtain your “disclosure”
  • The disclosure will describe the case against you.
  • What does the disclosure contain?
    • Disclosure” is a copy of the evidence that the police have collected to prosecute an accused person. It usually contains copies of police officer notes, witness statements, DVDs, CDs, photographs, and any other relevant items. Disclosure is usually provided to the accused on his or her first appearance date.

2. Your ticket to victory may be found in your “disclosure”

  • If you plead guilty without having an experienced D.U.I. (Impaired Driving; Driving with Excess Blood Alcohol; Care and Control; and Refuse/Failure to Provide Breath Sample) lawyer review your disclosure, you may be pleading guilty to a case that the Crown is unable to prove. It’s like throwing a lottery ticket in the garbage before the draw!
  • Experienced D.U.I. (Impaired Driving; Driving with Excess Blood Alcohol; Care and Control; and Refuse/Failure to Provide Breath Sample) lawyers will be able to analyze your disclosure, and advise you as to the existence of any potential defences.
  • Without the disclosure, there is VERY little a lawyer can tell you. It’s similar to your car breaking down, and you calling your mechanic from the side of the road to ask, “What’s wrong with my car?” Your mechanic needs to see the car! Similarly, we need to see the disclosure! If your mechanic told you, without seeing the car, that your car needs a new engine, you should probably start looking for a new mechanic.

3. There is no rush!

  • We have to repeatedly tell clients to be patient!
  • In order for an experienced DUI lawyer to carefully analyze and review a disclosure package, it takes time.
  • After you receive your disclosure at your first appearance, your case will be “adjourned” for anywhere between 2-4 weeks to allow you an opportunity to meet with a lawyer.

Those charged with a D.U.I. (Impaired Driving; Driving with Excess Blood Alcohol; Care and Control; and, Refuse/Failure to Provide Breath Sample) should make an informed decision. Pleading guilty on the first appearance is NEVER advisable. Rather, on your first appearance, obtain your disclosure. The court is obliged to honour your request for a 2 – 4 week adjournment to consult with a lawyer. Use this time to your advantage and speak to an experienced D.U.I lawyer. Remember, the legal process is by no means fast, so be patient. We know it’s difficult, but try and be logical and put your emotions aside. We have encountered many individuals who attend court on their first appearance and plead guilty, and shortly thereafter, they regret their initial rash decision.

Some Questions to Ask Before you Hire a Lawyer…

Hiring a lawyer is something that you’ll likely be required to do at least once in your lifetime. Whether it’s for closing a real estate transaction, finalizing an estate, writing a will, or defending a criminal charge, there are some questions that you should ask yourself before hiring a lawyer.

1. Get to know the lawyer or law firm

Learn about the lawyer or the firm that you’re hiring:

  • Does the lawyer or firm have a website or pamphlet about the services which they offer?
  • Does the individual lawyer who will be working on your case have a biography?
  • Does the lawyer/firm have experience in the respective area of law for which you require them?
  • Has the firm/lawyer dealt with cases similar to yours?

2. Ask some questions pertaining to your case.

At this stage, keep in mind that you may have questions that the lawyer may be unable to answer due to a lack of information. Example: In criminal cases, a lot depends on whether or not you have “disclosure” (all the relevant evidence relating to your case/charge). Without the “disclosure” it is difficult, if not impossible, for the lawyer to answer specific questions about your case. Some questions you may ask are:

  • What are the possible outcomes of the case?
  • What procedures are involved in order to defend the case?
  • Is there a “rough” timeline?
  • Are there any factors that may result in additional fees?

3. The most common question we get is, “how much will this cost me?

Again, this often depends on whether or not the lawyer has all the information necessary to effectively evaluate your case and thereafter, provide you with an accurate price estimate. Some important questions to ask are:

  • Whether you will be provided a written retainer agreement?
    • What is a “retainer agreement?”
      • This is a written agreement (contract) between the lawyer and client that is the basis for the solicitor-client relationship.
      • When you hire a lawyer, you will be asked to both provide the retainer fee and sign the retainer agreement.
  • Whether the lawyer charges “hourly fees”, “block fees” or works on a “contingency” basis?
  • Are the rates subject to change through the progression of the case?
    • If so, by how much?
    • Further, if they are subject to change, will notice will be given?
  • If it is a larger firm, whether the rates will vary based on which member of the firm will be working on the case?
  • What kind of disbursements will there be?
    • What are disbursements?
      • Disbursements are expenses incurred by the lawyer or a law firm on your behalf. These are expenditures that are paid for by the lawyer or firm to a third party in order to deal with your matter.
  • When will I be “billed”?
  • Will I be issued “receipts” upon making payments?

4. Finally, you should ask questions about the manner in which you will be updated about your case.

  • What are the preferred methods of communication? E-mail? Telephone? Text messages? Face-to-face meetings?
  • How often will I be contacted by the lawyer or firm?
  • How long will I have to wait for a response to my calls or e-mails?
  • Who else in the firm can I contact if I cannot reach the lawyer directly?
  • What are appropriate times to meet the lawyer/firm face-to-face?

Keep in mind, the above questions are not exhaustive. Each area of law and each individual case has its own nuances and subtleties which may require you to take further steps depending on the nature of your legal issue. The above questions are simply a guide to assist you in hiring a lawyer or firm that will adequately suit your needs. Finally, it’s best to schedule a meeting and ask these questions in person. Many lawyers and firms (us being included) prefer not to engage in initial consultations via the telephone or e-mail.

Right to Counsel… What’s that?

The term “counsel” is frequently used in Canada. What many people don’t know is that the word counsel is another word for “lawyer”.

Upon arrest or detention, a person must be advised of certain “rights”. Section 10 of the Canadian Charter of Rights and Freedoms sets out rights to protect an individual who has been arrested or detained. Of particular importance are sections 10(a) and 10(b):

“S. 10 – Everyone has the right on arrest or detention
a. to be informed promptly of the reasons therefor;
b. to retain and instruct counsel without delay and to be informed of that right;”

Section 10(a) requires that a police officer promptly inform an arrested or detained individual of the reason(s) for their arrest or detention. Section 10(b) involves the “right to counsel”. Upon arrest or detention, “rights to counsel” (right to speak to a lawyer) will be read by the “arresting officer”. It will sound like this:

  1. It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?
  2. You have the right to telephone any lawyer you wish. Do you understand?
  3. If you are charged with an offence, you may apply to the Ontario Legal Aid plan for assistance. Do you understand?
  4. 1-800-***-**** is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?
  5. Do you wish to call a lawyer now?

So what does this all mean?

First of all, a person who is arrested or detained must understand that they have the right to speak to a lawyer (the informational component of S.10(b) rights). It is incumbent on the respective police officer to ensure that the arrested party understands this right. Secondly, the arrested party is entitled to speak to any lawyer they wish, and the police officer in charge is obliged to facilitate that request (the implementational component). If the individual asks to speak a certain lawyer and does not have their contact information, the officer in charge is required to take steps to locate the contact information. Similarly, if a detained individual advises the arresting officer that the name and number of their lawyer is in their wallet or in their cellular phone, there is a duty upon the officer to attempt to locate that information.

What if you don’t know a lawyer?

If an arrested or detained party does not know any specific lawyers, they have the option of using a Legal Aid Duty Counsel Lawyer. This is a service provided by Legal Aid Ontario whereby a 1-800 number is called, and the individual is put in contact with a lawyer who will give them advice over the telephone at no charge. This program and their respective lawyers have no affiliation with the police and are there to assist individuals that have just been arrested and require immediate advice.

Conversations with Counsel are in Private

Once an individual is put in touch with a lawyer, the conversation must take place in a private room. Police officers cannot be present. This allows the detained person to have an open and frank discussion with counsel without fear of reprisal or fear that something that they say during the conversation will be used as evidence against them.

Why are “Rights to Counsel” so Important?

Section 10(b) rights in Canada are highly protected. The purpose of Section 10(b) rights are described in R. v. Sinclair, [2010] 2 S.C.R. 310, “as ensuring that a suspect is able to make a choice to speak to the police investigators that is both free and informed.”  Further, it is stated in R. v. Willier, [2010] 2 S.C.R. 429 that Section 10(b) accomplishes this “by ensuring that detainees have an opportunity to be informed of their rights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.”

When an individual is arrested or detained, they are under the control of the state and therefore deprived of their liberties. As a result, they are considered to be vulnerable to the exercise of the state’s power. Section 10(b) is therefore intended to provide them with an “opportunity to mitigate this legal disadvantage.” (R. v. Willier, [2010] 2 S.C.R. 429)

Save the Beer for the Pier The Laws Surrounding Alcohol and Boating….

With the abundance of lakes and rivers that we have in Ontario, boating is a common past-time enjoyed by many. Whether for fishing, water-skiing, or plain relaxing, being on a boat is a great way to spend a hot summer day. However, this is where some get a bit too comfortable. Hot summer day, you said? Why not bring some ice cold beers along for the boat ride? Wrong! There is a lot more to it.

The Term Vessel Encompasses Many Types of Watercraft

Firstly, the definition of a “vessel” can be found in S.214 of the Criminal Code of Canada and is construed broadly. Meaning, a vessel can include a sea-doo, kayak, canoe, sailboat, dinghy, and inflatable rafts. If the boat has a motor, it need not be running in order for an individual to be convicted of drinking and boating. Impaired operation of a vessel can include circumstances where the boat is simply drifting and the motor is off.

The Penalties are the Same as Impaired Driving and Driving with Excess Blood Alcohol

To clear up some confusion, boat operators face the same “Impaired Driving / Driving with Excess Blood Alcohol” penalties as those faced by drivers of motor vehicles. Also, keep in mind that drinking and boating will ALWAYS result in the suspension of your driver’s licence.

Similar to driving a vehicle, if you are stopped on the water, an officer can pursue one of two courses of action:

  • Arrest the party for “Impaired Operation”. If it’s abundantly clear to a police officer that the operator of the vessel has had too much to drink, the officer will place them under arrest for “Impaired Operation”. This essentially means that the officer has grounds to believe that the boater is impaired, and should not be operating a vessel. The party will then be transported to a local police station. Once at the station, the arrested party will be required to provide two samples of their breath into breathalyzer. If both of these samples show that the accused party’s “blood alcohol concentration” (B.A.C.) was over 80 milligrams of alcohol per 100 millilitres of blood, then a further charge of ‘Operation with Excess Blood Alcohol/Over 80’ will be laid.
  • If an officer has a reasonable suspicion that the boater has consumed alcohol, he can ask that they provide a sample of their breath into an “Approved Screening Device”. This is a portable unit that most marine units keep with them which allows officers to determine an individuals blood alcohol concentration (B.A.C.).

One of four things can happen at this stage:

1. Boaters Caught Blowing in the “Warn Range

Boaters caught with a blood alcohol concentration (BAC) in the “warn rage” (between 50 and 80 milligrams of alcohol per 100 millilitres of blood) will face an immediate driver’s license suspension. The length of the suspension varies based on whether or not it is their first offence. See below:

First Offence

  • 3-day driver’s licence suspension
  • $150 Administrative Monetary Penalty

Second Offence (within 5 years)

Third Offence (within 5 years)

  • 30-day driver’s licence suspension
  • Mandatory alcohol treatment program (Back on Track)
  • Six-month ignition interlock licence condition
  • $150 Administrative Monetary Penalty

Subsequent infractions (within 5 years)

  • 30-day driver’s licence suspension
  • Mandatory alcohol treatment program (Back on Track)
  • Six-month ignition interlock licence condition
  • Mandatory medical evaluation
  • $150 Administrative Monetary Penalty

Keep in mind, the penalties described above are only for those blowing in the “warn range”.  The penalties described above are not criminal in nature, rather they are considered “Provincial Offences”. These suspensions take effect immediately and cannot be appealed. Further, these suspensions are recorded on your driver’s abstract and are considered when determining the consequences for subsequent infractions.  Remember, a suspension for blowing in the “warn range” applies to the persons driver’s license as well.

2. “Boaters Who are Found to Exceed 80 Milligrams of Alcohol”

If the boater fails the “Approved Screening Device”, then the officer has grounds to arrest the boater and take them to the local police station to obtain two samples of their breath into a breathalyzer. If both of these samples show that the accused party’s ‘blood alcohol concentration’ (B.A.C) was over 80 milligrams of alcohol per 100 millilitres of blood, then the charge of “Boating with Excess Blood Alcohol/Over 80” will be laid.

This will result in the following:

  • 7 day vessel impoundment
  • An immediate 90-day vehicle driver’s licence suspension;
  • If convicted under the Criminal Code of Canada, the boater’s driver’s licence may be suspended for one year or more depending on whether it is a first, second, or subsequent conviction.
  • Mandatory alcohol assessment, education and follow-up may be assigned as a condition of driver’s licence re-instatement (Back on Track);
  • Installation of an ignition interlock on the boater’s vehicle (not their boat) for up to 1 year on first conviction

3. Refusal to Provide a Sample of Your Breath into the “Approved Screening Device” or “Intoxilyzer”

If the boater refuses to provide a sample of their breath into either of these devices, the boater will be charged criminally with the offence of “Refusal to Provide a Sample”. This offence carries with it, the same penalty as being charged with “Impaired Driving and/or Driving with Excess Blood Alcohol” as noted above.

4. The boater passes the “Approved Screening Device” and continues on their way.

Can you Drink Alcohol on a Boat?

In Ontario, there are specific requirements relating to the consumption and transportation of alcohol. 

According to the Ontario Liquor Licence Act, it is illegal to transport alcoholic beverages in a boat unless it is in a container that is unopened and the seal unbroken, unless the alcohol is reasonably stowed (in baggage or a closed compartment) and is not readily available to anyone.

Further, no alcohol can be consumed by anyone on board while a boat is underway. Consumption is only permitted if the following requirements are met:

  • The boat is fitted with permanent cooking, sleeping and washroom facilities (built into the boat); and,
  • The boat is at anchor, tied to a dock or grounded.
  • Once you pull anchor, all alcohol must be put away.

The lesson: Boat operators should stay sober while on the water! Enjoy a cold beverage once back on shore or once all of the legal requirements for consuming alcohol on your boat are satisfied.

Related Articles:

Domestic Violence Allegations – More Common Than You Think

Along with drinking and driving cases, charges relating to domestic violence are one of the most common types of criminal allegations. Domestic violence charges are not limited to allegations involving spouses, common law spouses, or boyfriend/girlfriend relationships. In fact, the following types of relationships are also covered by the “domestic umbrella”: parent/child; sibling/sibling; and, grandparent/grandchild.

Domestic violence allegations cover a very broad spectrum of charges:

Upon being arrested for a domestic violence charge, there is a very strong likelihood that you will be held for a bail hearing. Typically, you will have to live with your surety, and further, you are to have no contact with the complainant. The policy behind the “no contact” condition is two-fold: to eliminate the possibility of further abuse/violence; and, to ensure there is no “witness tampering”. It is the condition of “no contact” which causes the greatest stress and anxiety to an accused individual. Quite often, a trial date is many months down the road.

A common misconception relating to a domestic violence charge is the complainant decides if the case will go to trial (i.e. the complainant can terminate the charges at any time in the proceeding). This is not the case. The police make the initial decision to lay charges, and thereafter, the Crown Attorney’s Office make all decisions relating to prosecution.

Upon being charged, some individuals may be eligible for a Domestic Assault Program: Partner Assault Response Program (P.A.R.), or the Early Intervention Program (E.I.P.). It is important to note that these programs may not be suitable for everyone. Often these programs have terms, consequences, and potential pitfalls.

Quite often, domestic violence cases are referred to as “he says/she says” cases. Credibility is a key live issue. That being said, a judge should not decide the case via a “credibility contest”.

Instead, as formulated by the Supreme Court of Canada in R. v. W.(D.), [1991] 1 SCR 742, the trial judge should proceed through the following three “branches”:

  1. If the judge believes the evidence of the accused, s/he must acquit.
  2. Even if the judge does not believe the testimony of the accused but is left in a reasonable doubt by it, s/he must acquit.
  3. Even if the judge is not left in doubt by the evidence of the accused, s/he must ask themselves whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

Lastly, kindly find attached herewith some domestic violence cases for your review:

The Last Drink that Saved your Life!

Often, my partner and I have friends asking us about, “that defence where you argue your blood alcohol level is less than what the machine says it is”. We figured that we should take a moment to explain in laymen’s terms what the defence actually entails.

As a starting point, we’ll give you a typical scenario:

The Scenario

Please note that the quantities and measurements that we are using are approximations and are for illustrative purposes only.

You’re at a pub with some friends drinking beer. You arrive at the pub at 8:00 P.M. Between 8:00 P.M. and 9:45 P.M. you drink 3 bottles of domestic beer. At 9:45 P.M., you receive an angry call from your significant other, demanding you get home immediately. Despite this, you decide to order another beer with the intention of drinking it quickly and departing. Unbeknownst to you, your best friend ordered a round of beer as well. Knowing that your significant other is going to be upset if you’re not home in short order, you chug the two beers and leave the pub.

You get into your vehicle and proceed to drive home and are stopped by Police almost immediately. The officer suspects that you have consumed alcohol, and demands that you provide a sample of your breath into an “Approved Screening Device” (A.S.D). In this circumstance, the police are not under the belief that you are “impaired”, rather they are under the suspicion that you have consumed alcohol. You comply with the officer’s demand and provide a sample of your breath into the A.S.D. The officer informs you that you have “failed” the test and will be arrested for “Driving with Excess Blood Alcohol”. At this point, the officer advises you that you will be taken back to the police station to provide further samples of your breath into a breathalyzer. By the time you’re booked into the police station and ready to provide samples of your breath into a breathalyzer, it’s nearly 11:00pm. You provide two samples of your breath into the breathalyzer and the readings are 100 milligrams of alcohol per 100 milliliters of blood, and 90 milligrams of alcohol per 100 milliliters of blood. The officer informs you at this time that your “blood alcohol concentration” (B.A.C) is over 80 milligrams of alcohol per 100 millilitres of blood, and as a result you will be charged with “Driving with Excess Blood Alcohol/Over 80”.

The Criminal Code of Canada– Definition of Impaired/Over 80

253. (1) Every one commits an offence who operates a motor vehicle or vessel or operates or assists in the operation of an aircraft or of railway equipment or has the care or control of a motor vehicle, vessel, aircraft or railway equipment, whether it is in motion or not,

(a) while the person’s ability to operate the vehicle, vessel, aircraft or railway equipment is impaired by alcohol or a drug; or

(b) having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood.

(2) For greater certainty, the reference to impairment by alcohol or a drug in paragraph (1)(a) includes impairment by a combination of alcohol and a drug

The Defence

It you pay careful attention to the wording of s.253(1)(b) of the Criminal Code of Canada posted above, it’s an offence to operate a motor vehicle having consumed alcohol in such a quantity that the concentration in the person’s blood exceeds eighty milligrams of alcohol in one hundred millilitres of blood. In other words, in order for the offence to be proven beyond a reasonable doubt, your B.A.C must be over 80 milligrams of alcohol in 100 milliliters of blood at the time you operate your motor vehicle.

This is where it gets slightly complicated. Alcohol requires time to absorb into your blood stream. In the scenario that we described above, the two beers that are consumed immediately prior to leaving the pub haven’t fully absorbed into your bloodstream when you are actually stopped by the police. However, when you provide their breath samples an hour later at the police station, the alcohol has had sufficient time to fully absorb into their blood. The defence is centered on the premise that an individual who consumes a large amount of alcohol immediately prior to driving may be under the legal limit at the time of driving and only over the limit some time later, when the alcohol has had time to absorb into their blood stream. The defence is commonly known as “bolus drinking”.

Let’s use the scenario depicted above. Keep in mind, the numbers we are using are for illustrative purposes only. We are not factoring in elimination, height, weight etc., in an attempt to keep this as simple as possible.

  • 1 bottle of domestic beer = 25 milligrams of alcohol
  • The subject consumes a total of 5 domestic bottles over 2 hours: 25mg x 5 beers = 125mg
  • Two beers are consumed immediately prior to driving and have not entered into the driver’s blood stream, as a result, the B.A.C at the time of driving is actually 75 milligrams. 125mg – 50mg = 75 mg.

Seems easy, right? Think again!

It’s not as easy as walking into a courtroom on your day of trial and saying that you chugged a micky of Jack Daniels before getting behind the wheel of your Kia. It requires much more. First, the defence requires evidence from an experienced toxicologist. The toxicologist will analyze your pattern of drinking and calculate whether or not your B.A.C would have been under 80 milligrams during the time of driving. Secondly, evidence from other parties who witnessed the rapid consumption of alcohol immediately prior to driving is also required. It is important to note however that the defence will only succeed if that “bolus drinking” scenario is believed. There have been a number of cases where it has been stated that the amount of alcohol allegedly consumed immediately prior to driving is unrealistic or abnormal. In such cases, the defence ultimately fail. Below are links to some popular “bolus drinking” cases.

Do you mind if I take a look inside your car?

Possession of Drugs and Consent Searches

Recently the Ontario Court of Appeal released a judgment with respect to whether an officer’s request that a person consent to a search is in fact a search. (R. v. Sebben)

Mr. Sebben was in possession of marihuana. He had a small amount of marihuana in the centre console of his vehicle, and further, a larger amount of marihuana hidden elsewhere in the car. An off duty police officer saw Mr. Sebben driving his vehicle in an erratic manner. A different officer stopped Mr. Sebben and administered a roadside breath test. Mr. Sebben registered a “pass”. In the course of checking Mr. Sebben on CPIC (Canadian Police Information Centre) and related data bases, the police officer received information about a possible connection to drugs. As a result, the officer decided to ask Mr. Sebben if he would consent to a search of his vehicle. The officer acknowledged that without Mr. Sebben’s consent he did not have reasonable grounds to conduct a search. During a very brief conversation, Mr. Sebben voluntarily produced a bag of marihuana. The officer arrested him for Possession of Marihuana (section 4(1) of the Controlled Drugs and Substances Act), and proceeded to conduct a search of the vehicle as an incident of that arrest. The officer found more marihuana, and Mr. Sebben was further charged with Possession of Marihuana for the Purpose of Trafficking (section 5(2) of the C.D.S.A.).

At trial, Mr. Sebben argued that his Charter rights had been infringed:

The trial judge concluded that the officer’s request to search Mr. Sebben was not a search. Further, the trial judge found that Mr. Sebben chose to voluntarily turn over the marihuana in the bag to the police officer in the hope of curtailing a more thorough search of the vehicle which would, as it eventually did, reveal the other drugs. Ultimately, the trial judge did find a violation of Mr. Seben’s right to counsel, but decided the evidence should not be excluded under section 24(2) of the Charter.

The sole ground argued on appeal was whether Mr. Sebben’s rights under section 8 (unreasonable search and seizure) of the Charter had been violated. At the Court of Appeal, the judgment was authored by Justice Doherty (widely considered one of the country’s leading criminal jurists).

Justice Doherty concluded that not every request by an officer that a person consent to a search is automatically a search. Ultimately, it depends on the specific facts of the individual case. Sometimes questions, including a request to conduct a consent search, will be part of a subsequent search. In other fact situations, the questions will not form any part of a search. In the present case, Justice Doherty concluded that there had been no search, but rather a production of the marihuana in the bag (from the centre console) by Mr. Sebben, which was followed by a lawful search incident to arrest.

Lessons to be learned:

  1. Be extremely cautious prior to consenting to a search of your person, vehicle, or residence. Ask to speak with a criminal defence lawyer. It’s your right; use it.
  2. Be aware that voluntarily surrendering contraband (drugs, stolen property, weapons, etc.) to the police may later be viewed as a waiver of your Charter rights.