This may seem like an odd question to ask. However, the Supreme Court recently released a decision in a sexual assault case that stated an individual cannot consent to sexual touching while they are unconscious. The facts of the case were that two adults were engaged in erotic asphyxiation when the female passed out. Sexual activity continued, activity that she had consented to in advance. However, the accused was still convicted of sexual assault because the Court said that an unconscious person cannot consent to sexual touching.

Seems reasonable, does it not, to think that a person cannot consent while unconscious? However, they cannot even consent in advance, because a person has to be able to withdraw there consent in order for consent to be valid. Why is this a problem? Let me explain.

The most obvious situation is when dealing with two people in a relationship. To be even more specific, let us take a husband and wife combination that have been married for twenty years. He kisses her on the lips while she is sleeping…that is a sexual assault. He climbs into bed with her and puts his arm around her, clasping her breast…that is a sexual assault. She climbs into bed and performs fellatio on her husband (almost every mans fantasy!), waking him up…that is a sexual assault. The Supreme Court has made millions of people criminals by stating that, no matter the extent of the prior consent, an unconscious person cannot consent to sexual contact.

For the vast majority of situations this will be of little concern. Most couples would not report the other to the police. However, situations can arise where prior sexual contact can become an after the fact problem. In the case involving the Supreme Court, a subsequent breakdown in the relationship and an ongoing custody battle led to the information being revealed that there had been sex while the female was unconscious. The man was convicted even though the woman was clear that she had consented to the contact!

The point…protect yourself. People need to know and understand this. Relationships breakdown, or contact may be admitted to because neither partner sees a problem. However, regardless of the personal views of the participants, the act is still illegal and can be prosecuted. Don’t let the law make you a victim!

British Columbia has recently been applauded for having the strongest administrative penalties in Canada for impaired driver’s. Without commenting on how these penalties violate the presumption of innocence, or how they are based on the results from fallible roadside devices, many citizens should be appalled at the real results of these penalties.

The problem is not that these people are punished, but in many instances, are not punished enough. Why do we say this? Police forces in British Columbia have stopped taking breath samples and charging people criminally for alleged offences. For example, if a person blows a fail on a roadside device, subsequent breath samples on an Approved Instrument should reveal that they are over the legal limit, and they should be charged criminally. But police in BC have stopped taking breath samples, and instead simply give administrative penalties to impaired drivers. No criminal conviction, no criminal record, no minimum one year licence suspension, no mininum $1000 fine.

What does happen? In BC, a fail on a roadside device will get you 90 days off the road and a required participation in an interlock program for one year. Total costs will amount to about $4000.00 (much lower than the cost of your average lawyer)…unless you’re not a BC resident…

Many individuals get these penalties while visiting BC, but the BC province has no authority to suspend the licence granted by another province. Even if the licencing province finds out about BC charges, they may not require you to participate in the interlock program. The result? An individual charged in BC will get 90 days off the road  and avoid a criminal conviction, a far cry from the penalties contained in the Criminal Code.

This doesn’t even address the situations where an individual should be facing a second impaired driving charge, which has a penalty of 2 years off the road and a minimum 30 days in jail. Instead of charging these people, they are let off with 90 day licence suspensions. Does this sound fair, let alone responsible?

This is another example of short term ideas and solutions not benefitting the long term interests of Canadian citizens. Are other provinces going to follow suit? The potential is there, and it is being discussed. However, discussions have to understand the effect on all citizens. Our society wants to combat impaired drivers, but our punishments are being lowered, not increased. This is to the detriment of those that drink responsibly, yet pay the price for those that do not, sometimes with our lives.

These might seem like strong words coming from criminal defence lawyers, but we are also responsible citizens who want to see less crime, not more. The short term effect of the BC approach benefits no one, and is appalling in its lack of thought. All citizens need to be concerned, and diligent in speaking out against provincial governments that look to follow the BC model.

What do gun-toting, execution happy, conservative Texans know that Canadians don’t? Texans understand that putting people in jail doesn’t work.

Newspapers have reported that, faced with a system of justice that over-incarcerated and suddenly demanded billions in tax payer dollars, Texas adapted its thinking and spent a fraction of this money on rehabilitation services, rather than on jails and prisons. The result? Crime rates went down faster than they had in years, and the government saved millions.

Why does Canada care? Because these same Texans got wind of Conservative Prime Minister Stephen Harper’s plan to build more jails and prisons, increase mandatory minimum sentences and make certain offences have minimum sentences. The response? This plan was doomed to be a resounding failure.

Our current government is trying to fix a system that isn’t broken. Crime rates are down, through decades of focus on rehabilitation rather than incarceration. It’s tough on crime stance is meant to pander to citizens who think that this is a good idea, but the solution is short term. Wait until people have to pay for it, until we are facing the largest deficits in history and social services for the poor and unfortunate are slashed away (which is already happening). Prime Minister Harper’s plan is a short term solution for re-election, but is not in the best interests of Canadian citizens.

Our Supreme Court debated and discussed these issue years ago, concluding that incarceration does not benefit those convicted, or those having to pay to incarcerate them. Rehabilitation allows people to become constructive members of society, and costs much less. It costs more money in a month to incarcerate a person than the average Canadian makes in that same month, and yet our Conservative government wants to build more jails, and incarcerate more people, attempting to fix a system that isn’t broken.

Texans understand this doesn’t work…why can’t we?

The Sun newspaper in Edmonton recently published an article titled “Snitches do good,” applauding the efforts of individuals calling the police to report suspected impaired drivers. This program in Edmonton is called “Curb the Danger” and is similar to other programs across the country, such as the R.I.D.E. (Report Impaired Drivers Enforcement) program. Whatever the name, the goal of the program is to have concerned citizens report suspected impaired driver’s for the police to investigate. A laudable goal, yes?

The Sun newspaper article cited that in October 2011, 690 calls to the “Curb the Danger” program resulted in 80 people charged with impaired driving. While 80 people charged sounds like an impressive number, the statistic that stood out to me was the 610 people that weren’t charged. Individuals need to realize the potential consequences of their actions, and be aware of the violation of individual liberties that can result…

What the public has to be aware of is the potential result of a hasty call to the police on a suspected impaired driver. What people don’t understand is the potential harm that can be caused to an individual detained by the police for an impaired investigation. Many of these individuals are subject to roadside breath samples before being given their right to counsel, and many refuse these breath samples because they believe they have done nothing wrong. However, it is an offence to refuse these demands, an offence that contains the exact same repercussions as a full impaired driving charged. What does this mean? An individual can be charged and convicted of an offence simply because someone decided to call the police and report them as a suspected impaired driver, whether they were guilty of actually being impaired or not. Individuals can also be charged with failing to provide a breath sample. When detained in the back of a police car, having a police officer read them a complicated demand while shoving a roadside device at them through a small window, demanding that they blow into the device, often with incomplete instruction on how to provide a sample properly, while nervous, scared, having never been in the situation before, sometimes cold and uncomfortable, it is no wonder that individuals don’t provide a sample properly in the brief few minutes that many police officers give a person to provide a sample. What is the result? A criminal charge, and the necessity of having to defend yourself in court.

Even if a person properly provides a sample, roadside devices are not infallible. In fact, they can be affected by something as simple as recently smoking. If a device gives a false fail, the police will not know this because they are not required to make sure that the factors that can cause a false fail are not present before proceeding with a roadside breath test. They rely on the fail, and then arrest the individual, who is then subject to handcuffing, searches, being taken to a police station, provincial administrative suspensions, trying to contact a lawyer often late at night, further breath samples, all to learn that they are not over the legal limit and finally released.

This does not include the people that are simply arrested, rather than subject to roadside breath samples. These people are subject to the full force of an impaired driving investigation, potentially when they have done nothing wrong. The effect can be, at the least, humiliating, and subjects innocent people to potential criminal charges and the need to defend themselves in court.

Why is this a concern? Is this not reasonable when 80 impaired drivers were charged with an offence? First, don’t be fooled by this statistic, when we don’t know how many of these charges will result in actual convictions. Second, the police never release statistics about those that are wrongfully arrested and accused of an offence, but then subsequently released because they blew under the legal limit. Every citizen has the right to be free from arbitrary detention, unreasonable search and seizure, and has a right to counsel, but you never see the statistics about when these rights are violated.

80 people charged? That is less than 12% of those accused by their fellow citizens of driving while impaired. For those that were correct, their diligence should be applauded. For those that were wrong, they might want to think about what their rash actions could mean to those suddenly finding themselves arrested, and those finding themselves improperly charged. You could be destroying an innocent persons life, so make sure your call to the police is bona fide and your not one of the 88% who were wrong…

In the prior blog entries, you may have read information concerning the powers of the
police upon arrest or detention. You may have also noticed the caveat at the end of these
posts that the same rules do not apply to the operator’s of motor vehicles. This post is
meant to inform upon police powers in reference to the everyday driver.

Do the Police need a reason to pull me over?

The answer to this question is more complicated than it seems. The Supreme Court of
Canada has long recognized that the police can stop the operator of a motor vehicle to
check on insurance, licensing , mechanical fitness of the vehicle, and the sobriety of the
driver. If the police have one of these things in mind, then they can pull the operator of a
motor vehicle over at anytime.

If you are under the belief that the police need to see you do something wrong to pull
you over, you are mistaken. Think of a Checkstop operation; when you go through a
Checkstop, you have done nothing wrong, but the police still have the lawful authority
to pull you over to assess your sobriety. This is because while the Charter of Rights and
Freedoms protects against arbitrary detention, driving is considered to be a privilege and
not a right, and it is considered to be a reasonable limit on our protected rights to allow
police to detain motorists to check on things such as insurance and sobriety.

This does not give the police an unfettered right to detain. The Supreme Court of
Canada has recently again recognized that police stops have to be connected to a valid
purpose, R. v . Nolet, 2010. In 1992, the Supreme Court recognized in R. v. Mellenthin
that authorized random roadside stops must not be turned into an unfounded general
inquisition to investigate potential crime or unreasonably search a motor vehicle.

The practical reality is that an officer simply has to state that he pulled a motor vehicle
over to assess sobriety, or inquire about licensing, insurance, or to inspect the mechanical
fitness of the vehicle. Experience has dictated that Courts are reluctant to invalidate a
random stop, even in situations where officer evidence as to the reason for the stop is
suspect.

It is always open for any individual to enforce their own rights. Police are supposed to
inform as to the reason for the stop, but if they do not do so, it is open for the person to
enquire why they were stopped. An individual is only obligated to provide evidence of
licensing and insurance to an officer, not to answer questions, or step from the vehicle,
absent a lawful demand. The right to silence enshrined in the Charter also protects the
right not to participate in any process, absent a lawful demand. Police are entitled to ask
a person from the vehicle, or question about alcohol consumption, but the individual has
the right to refuse participation, unless the police are asking them to do these things as
connected to roadside sobriety tests as authorized under legislation.

How do you know whether this is happening or not? Any valid sobriety tests conducted
under the authority of the Criminal Code or other authorizing legislation should be
accompanied by a fairly formal demand, usually read from a card in the officer’s
possession. As well, you can always ask why you are being asked to do something, and if
an officer is not forthcoming as to why, you have a right not to participate.

Understand that the police can get frustrated and perhaps even angry at a person that
enforces their rights. This is not a reason to give up your rights and do whatever the
police ask of you. Experienced and level-headed police officers will respect that there is
limits to their authority, and behave appropriately. Those that do not behave appropriately
can become the subjects of complaints, and possible litigation. Inappropriate police
action that brings their actions outside of lawful authority cannot be condoned, and it is
up to the public to constrain police authority through the proper exercising of protected
rights.

What should I do when pulled over or stopped by the police? Read the next entry to
understand what you can do to protect your rights.

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms

In the prior blog entry, I discussed the powers of the police in relation to an arrest and investigative detention. This section is designed to advise the public what the police are obliged to do once a person is arrested or detained.

First of all, our system of policing is not the same as it is in the United States, and does not work the same as you may see on TV. Remember from the prior entry that the police can arrest on reasonable and probable grounds that an offence has been committed, but can also detain on a reasonable suspicion of connection to criminal activity. However, despite whether arrested or detained the police have obligations in terms of what they are supposed to say and do.

The most important and fundamental protection to be afforded to a member of the public either arrested or detained is their right to counsel. Section 10 of the Canadian Charter of Rights and Freedoms deals with the individual right to counsel, and has been interpreted by the Supreme Court as giving an immediate right to counsel upon arrest or detention. This means that the police are required to inform an individual on the reasons for detention, and to immediately advise them that they are entitled to contact counsel. Not only is the individual entitled to contact counsel, but they are entitled to contact counsel of choice. This means that an individual can contact a free legal advice service such as legal aid or duty counsel, or can contact a private lawyer, usually from a phone book. Most lawyers or criminal firms offer a free, after hours advice service, and while it may be difficult to contact someone, persistence will usually find someone available to give advice.

Once advised of the right to counsel, an individual has the choice whether or not to contact counsel. If a person wants to contact counsel, the police are immediately required to facilitate contact with counsel. This usually occurs by transporting a person to a police station and giving them an opportunity to use a telephone in a private setting. However, given the advances in modern cellular technology, there is no reason why an individual could not request privacy at the scene of detention and the use of their cell phone, if they have one. If no cell phone is available, then the option is to accompany an officer to a police station and use the facilities provided.

Given the right to counsel immediately upon arrest or detention, a number of questions arise. One common question is “how do I know if I am arrested or detained”? It is not often difficult to tell when you have been arrested, but even lawyers and the Courts alike wrestle with the question as to whether someone is detained or not. The easiest advice is this: if you think you are detained, attempt to leave, and make the police stop you. Or, simply ask if you are detained. These questions, actions and police responses will signal to the Court whether or not you were detained. Another option is to request to contact counsel. If the police ask you why you would want to, or advise you do not need to, then you are not detained, and can leave. Remember, if you are detained you are immediately entitled to be advised of your right to counsel and to be given an opportunity to contact counsel, if that is your wish.

People are also sometimes concerned that if they want to contact counsel, that will lead to the inference that they have done something wrong. The response to this is that every person needs to understand that this is a fundamental right to be afforded to everyone, regardless of innocence or guilt. Most people simply want to know what they are required to do, and the limits of police power, and this is why the right to counsel at the initial stage of detention is a fundamental protection.

The other difficulty people also foresee is that invoking the right to counsel could prolong an investigative detention beyond what they feel is necessary, because even though they are simply detained, they may have to accompany an officer to a police station to have access to a telephone. This is a valid concern. However, people have to be aware that if the police are investigating you for a potential crime, they are rarely acting in your best interests, or working to protect your rights. Their role is to gather evidence, and unfortunately this evidence can sometimes be misleading. Denying yourself your own rights is done at your own peril…affording yourself fundamental protections is the liberty enjoyed in a free and democratic society, and a half hour contacting counsel can save you potential pain and anguish.

The right to counsel enshrined in the Charter is exactly that: a right. Protect it, and use it. The rights in the Charter are your rights, and they are yours to invoke. Be careful in denying yourself these protections.

Remember, these same rules do not apply to the operator of a motor vehicle! Read the next entry to understand the rights of a detained motorist, and the subsequent limits of police power.

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms

I recently received a message from a concerned individually who stated that her vehicle
was pulled over, her boyfriend (the passenger) was arrested, she was detained by the
police, her vehicle was searched, and she was required to give a statement to the police.
Scared and concerned, she contacted our office looking for some advice, being unsure as
to the precise limits of police authority. The following is an attempt to explain, in clear
and simple terms, the limits of police authority and the rights of every person upon arrest
and detention.

Police Powers of Arrest and Detention

In Canada, the police have a wide latitude to detain members of the public. However, this
power of detention is not limitless. The police have the authority to detain any member of
the public if there is a reasonable suspicion that this individual may be connected to some
form of criminal activity. Police powers of arrest are even more restricted, requiring that
they believe on reasonable and probable grounds that an offence has been committed.

What is a reasonable suspicion? This is a very low threshold to meet, but is still a
standard that needs to be met. For example, a person resembling a physical description
of a suspect would give the police power to detain a person and question them further. A
person fleeing an area where an offence has been reported might also create a reasonable
suspicion that a person is connected to criminal activity. The police would be authorized
to detain an individual at this point.

However, the police cannot simply detain random people for questioning, based simply
on a hunch or intuition that they may have been doing something wrong. While this
technique is sometimes successful, the concern is not with those who are caught by
this technique, but with those who have done nothing wrong, who are then subject
to detention and police investigation. We are not meant to live in a police state, and
therefore police can only detain when they have reason to do so.

The Supreme Court has been careful to state that not every interaction with the police
will amount to a detention. The police are entitled to simply ask questions of people
without having detained them. Sound confusing? It is, to the public and the people that
represent them. The advice is this…if you are confused whether or not you are detained,
simply try to leave, or ask. Simply walking away will let you know if you are detained,
because the police will either try to stop you, or not. If they stop you, then clearly you are
detained, and are entitled to further information. Also, if you are confused, ask!!! Simply
stating “are you detaining me?” signals to the police (and most importantly, the Court!)
that you want to know whether or not you are free to leave. If the police say no, then you
are entitled to leave.

One final thing: these same rules do not apply to the operator of a motor vehicle. If you
are interested in the rights and obligation of a detained motorist, look under the following
blog entries!

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms

Everyday, people are subject to legal information, mostly from the news. This can come from various sources, such as  television, newspapers, or the internet. The source of this information is invariably Government agencies and organizations, such as the police. However, this information is sometimes incomplete or one-sided, and does not fully inform of legal rights and obligations. This section is designed to examine everyday legal issues, and attempt to inform the public of their rights.

Impaired Driving and Refusing to Provide a Sample “absent a reasonable excuse“

A recent newspaper article has informed the public that Alberta’s RCMP have deemed August Impaired Driving Month. Given the summer atmosphere with camping and partying, the police have warned that they will be focusing on catching Alberta’s impaired drivers.

In this recent article, the RCMP wanted to advise the public that, while impaired driving is an offence, so is refusing to provide a breath sample. However, this is only partly true. More precisely, the Criminal Code details that refusing to provide a breath sample is an offence, absent a reasonable excuse.

For example, a reasonably held belief that providing a breath sample would be hazardous to your health is a reasonable excuse. This is the case where an individual has believed that they might have an asthma attack from expelling all of the air from their lungs, and where an injury to the neck created a reasonably held belief that a breath sample should not be provided. A breach of the right to counsel can also, in unique situations, provide a reasonable excuse to refuse to provide a breath sample.

Also, it is only an offence to refuse to provide a breath sample if the demand for that sample is a lawful one. The police need to have the requisite grounds before demanding a sample of a persons breath or blood, and themselves have to follow the prerequisites contained within the authorizing statute (the Criminal Code) when demanding and taking the sample. If these requirements are not met, then the demand and taking of breath samples is unlawful, and an individual does not commit an offence in refusing to provide a sample.

Information Is Power

Remember that each case is fact specific, and an individual cannot use a vague or undetermined medical concern as a reasonable excuse. However, a person only commits an offence if they refuse to provide a breath sample, absent a reasonable excuse. Simply refusing to follow the demands of a peace officer is not, in itself, a crime.

Know your rights and obligations. Knowledge is your best protection.

Click here to download a PDF version of the Canadian Charter of Rights and Freedoms

If you have questions about your legal rights or the limits of police authority, please feel free to contact us with your questions. Your issue can become the subject of our next commentary, and be certain of this: if it is important to you, it is important to others as well!

Welcome to the first (of many) entries about our firm and the practice of law! Our firm is based in Edmonton, Alberta, and serves the criminal litigation needs of people across Western Canada. Our principle lawyer and owner of the firm, R. Kent Haryett, brings to the table 16 years of criminal defence experience, focusing on negotiation and courtroom litigation. He has represented individuals at all levels of court, and firmly believes that professional and ethical representation is the right of any accused.

Our Client’s Needs Come First

Our client-centered approach to the practice of law means we listen to your needs and make sure you receive the best results possible. Our role is to give you the best advice, making sure you clearly understand all of your options so that you are making an informed choice on how to proceed. Our job is to advise and to inform – you’re the one that makes the decisions, and it is our job to implement your instructions to the best of our professional abilities.

Impaireds and Beyond

Our dominant area of practice is in impaired driving allegations. In today’s fast-paced world, it is fundamentally important that your rights are respected, and that the rule of law is followed. Nowhere is this more important then when you are facing an allegation of impaired driving. Whether it is alleged you have operated a motor vehicle while impaired by alcohol, operated a motor vehicle while impaired by drug, operated a motor vehicle while over the legal limit, refused to give a breath sample to a police officer, or refused to participate in a drug evaluation test, it is necessary that professional and capable legal counsel examine your situation and ensure that your rights have been respected. Our system of justice mandates that any offence be proved beyond a reasonable doubt, and every person has the right to be presumed innocent. This is the fundamental philosophy to our legal approach and representation of you, the client.

Contact Us and Rest Easy

Our staff is highly trained and follows the philosophy of our principle, R. Kent Haryett. We are focused on getting you the best results possible, while holding ourselves to the highest standards of ethics and professionalism. Please contact us for a free consultation, so that we can advise you as to your rights and the process that you are now faced with. There is nothing scarier than facing the unfamiliar, and that is why we are here to help.

Please enjoy the following posts. This site will be updated with current events, and useful information on the practice of law. If you have any questions or comments, please feel free to send me an email and I look forward to hearing from you!