Jan 26
Impaired / Over 80
Impaired / Over 80
DUI is defined as the act of driving while under the influence of alcohol or drugs. There are three main types of DUI offences:
- Operating a motor vehicle at or over 80 within two hours of driving
- Impaired Driving
- Refusing to provide a breath sample
A charge of impaired driving means operating a vehicle (including cars, trucks, boats, snowmobiles and off-road vehicles) while your ability to do so has been compromised by consuming alcohol, drugs, or a combination of the two.
Over 80
For fully licensed drivers across Canada, the maximum legal blood alcohol concentration (BAC) is 80 milligrams of alcohol in 100 millilitres of blood, or 0.08. Driving with BAC at or over 0.08 is a criminal offence with serious consequences and penalties. Some of the consequences can include license suspension, vehicle impoundment, fines, a criminal record and possible incarceration.
Impaired Driving
Those charged with impaired driving do not have to submit a breathalyzer or blood test result. Police can build their case based on factors such as whether drugs were found in the car or whether the person failed sobriety tests during their arrest.
Refusal/Failure to Provide a Breath or Blood Sample
Refusing to provide a breath or blood sample constitutes an offence. If convicted, your driver’s license will be suspended for 12 months.
Penalties For DUI Convictions
A DUI conviction carries mandatory minimum sentences. These are punishments that must be imposed upon conviction. If you are convicted of a DUI, you must undergo the following mandatory minimum sentences:
- Mandatory 90-day license suspension
- First-time offenders will receive a fine of $1,000.00
- Second-time offenders will receive 30 days in prison
- Third-time offenders will receive 120 days in prison
Winning your drinking and driving case means: keeping your driver’s license, avoiding a criminal record, protecting against increased insurance costs, preventing problems crossing the US border and preserving your reputation in the community.
Other Driving Related Offences
Impaired and over 80 are the most common types of driving related offences. There are other driving related offences with similar penalties such as:
- Dangerous driving
- Flight from police
- Fail to remain
- Criminal negligence causing death/bodily harm
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of impaired driving related allegations. If you or someone you know has been charged with impaired operation, over 80, failure to provide a breath or blood sample, dangerous driving, criminal negligence causing death/bodily harm, flight from police or fail to remain you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Impaired Driving and Exceed/Over 80
What Is the Difference Between Impaired Driving and Exceed/Over 80?
Impaired driving (DUI) and excess blood alcohol (‘over 80’) are distinct but related charges.
Impaired driving is focused on the impact that alcohol or drugs is having on the individual. Typically, the Crown will call witnesses who will testify as to the various physical symptoms and driving behaviour demonstrated by the accused in and around the time of driving, such as:
- Bad driving (ie. weaving)
- A motor vehicle accident
- Odour of alcohol on the breath (this alone does not mean the accused is impaired, but merely that she or he potentially has been drinking at some point)
- Bloodshot and/or watery eyes (this alone means little)
- Unsteadiness, balance problems, walking problems, coordination problems
- Slurred speech
‘Over 80’ only deals with the amount of alcohol in the individual’s blood stream. If you provide two samples into a breathalyzer and the result is 80 mg or above of alcohol in 100 ml blood, you will be charged with this offence. It is possible to be charged with ‘over 80’ even though you are not driving impaired.
But I was Not Drinking? – Impaired by drugs
As with impaired driving, if the police suspect that there may be drugs in your body, they are allowed to demand that you perform physical coordination tests to enable them to determine whether further testing for the presence of drugs is warranted.
If the physical coordination tests are done in a manner that provides the police with reasonable grounds to believe that you might be impaired by drugs, or a combination of drugs and alcohol, they are entitled to demand a sample of your saliva, urine, or blood so that they can test for the presence of drugs in your body.
The physical coordination tests are conducted by a drug recognition expert (DRE). A DRE is a member of the police force who has completed special training to be able to properly assess whether a person is impaired by drugs using accepted medical knowledge and standardized field sobriety tests.
The physical coordination tests that a DRE administers must comply with the Evaluation of Impaired Operation (Drugs and Alcohol) Regulations. The regulations outline a 12-step evaluation that consists of the police taking measurements of your pulse, blood pressure, and temperature. The police will also conduct eye examinations, tests for balance, and visual examinations of your exposed body for injection sites. If at the end of the tests the police have gained reasonable grounds to believe that you are impaired by drugs, they are lawfully entitled to demand that you provide them with a sample of your saliva or urine, which will enable them to test for the presence of drugs in your body. In some circumstances, the police may also demand that you provide a sample of your blood for this purpose.
If you refuse to submit to any of the tests that the police officer or DRE demands of you, you will likely be charged with refusal, another criminal offence. If charged and convicted of refusal, you will be subject to a mandatory minimum fine of $1000 and a mandatory minimum licence suspension of one year. If this is not your first impaired driving offence, the penalties can increase, and in some circumstances, you can even be liable for time spent in jail.
I was not Driving – Care and Control
An individual is “presumed” to be in care and control of a motor vehicle “where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle”. This presumption applies unless “the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle… in motion”.
In order to rebut this presumption, typically a person will have to testify, leading evidence of an alternative intention of entering the vehicle such as waiting for a friend to pick them up or using the vehicle for warmth until some alternate means of transportation is available (such as a taxi). There are also potential defences arising out of scenarios which involve “no risk of danger” and “inoperable vehicles” but this area of the law is very technical.
There are a number of defences to the charge of being in care and control of a motor vehicle including: “no risk of danger”, “the alternate plan”, and “inoperable vehicle”; however, every case is unique and will impact which defences are available.
What is a Roadside Screening Device?
A screening device is a machine often used by the police at the roadside to determine if you have alcohol in your body. The screening device is an investigative tool used by the police in situations where they may not have the grounds to arrest you for Impaired Driving or Driving Over 80.
According to s. 320.27(2) of the Criminal Code, if a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
If a device is not in the peace officer’s possession, the officer must reasonably suspect you have alcohol in your body. If the officer smells an odour of an alcoholic beverage emanating from your breath or you have admitted to recently consuming alcohol, the officer will have sufficient grounds to make a demand.
While the screening device measures blood alcohol levels, it only provides three possible results: pass, warning, and fail. A properly calibrated screening device will register a pass when your blood alcohol is below 50 mg of alcohol per 100 mls of blood. Between 50 and 80, the screening device should register a warning. A reading greater than 80 should register a fail, giving the officer the grounds to arrest you for Driving Over 80.
The screening device does not provide proof of the Drive Over 80 offence. It only provides the grounds for the officer to arrest you for Driving Over 80 and make a “breathalyzer” demand. The “breathalyzer” is similar to a screening device but provides your actual blood alcohol measurement. The results of a “breathalyzer” can be used to convict you of Driving Over 80.
If the screening device or “breathalyzer” was not a model approved by Parliament, was not tested or calibrated correctly, or if the officer that operated the “breathalyzer” was not a qualified breath technician, you may have a possible defence to your Impaired Driving charge.
What is a Breath Demand?
If an accused is arrested for impaired driving and/or fails an approved roadside screening device test, the police will then read a breath demand to provide breath samples into either the intoxilyzer or breathalyzer. The accused will usually be brought to the police station. Breathalyzers or intoxilyzers are prepared by a ‘breath technician’ who has been trained to operate these scientific instruments.
Within a two-hour period of the time of driving or ‘as soon as practicable’, the accused will be required to provide two breath samples into the approved breathalyser. The instrument then analyzes the breath samples and provides an actual blood alcohol reading.
What Is a Breathalyzer or Intoxilyzer Test?
Upon arrest, the police officer would then read a ‘breath demand’ to provide breath samples at the police station. Again, this is a completely different situation from an approved screening device demand. It is not necessary for the police officer to go through the approved screening device demand procedure if they have reasonable and probable grounds that the person is impaired upon observation. Merely exuding an odour of alcohol and perhaps bloodshot and glassy eyes would only lead to a “suspicion” that the person had been drinking and had alcohol in their system It would not lead to reasonable and probable grounds that they are impaired or over the legal limit.
A breathalyzer, or its more recent successor an intoxilyzer, is an instrument utilized by police departments to test the blood alcohol level of an individual who has been detained for impaired driving as a result of alcohol consumption. If the maximum blood alcohol limit of 80 milligrams of alcohol in 100 millilitres of blood (0.08) is exceeded, the arrest and charge for impaired driving of an individual by the police will be warranted. The test is also admissible in the event that the individual fails an approved roadside-screening device test administered to them. Unlike the approved roadside-screening device (ASD), the breathalyzer/intoxilyzer test are conducted by a “breath technician” who has been trained to operate the instrument. It is vital that the instrument is managed by a technician as, while it is perceived to be a fairly accurate means of calculating the blood alcohol level of an individual, they are not 100% accurate. In the event that there was a fault on the part of the technician or the machine was not maintained nor calibrated as it should be or the test was not administered correctly, the results of the reading may be affected.
What Happens if I Refuse or Fail to Provide a Sample into an ASD or the Intoxylizer?
If a person refuses or fails to comply with the breath demand by, for example saying “no” or faking blowing, etc., they will then be charged with refusing or failing to comply with a breath demand or providing a breath sample.
To prove the charge of refusal, the Crown will be required to prove beyond a reasonable doubt that the refusal to provide a breath sample or failure to comply was ‘final and unequivocal’. If proven, the defence can raise a ‘reasonable excuse’ for not providing a sample.
Generally, a person who is under arrest should always comply with a demand to provide breath samples. Although there are occasionally exceptions to the general rule, the advice that an experienced DUI lawyer will always provide to a detainee/person under arrest is that they should always provide a breath sample upon demand. It is too risky to refuse to provide a breath sample and hope your case turns out “after the fact” to be one of the narrow exceptions.
Do the Police Need to Conduct an ASD before Arresting me?
No. The police do not need to complete a roadside screening device test before they can arrest you. If the police have reasonable and probable grounds to arrest a person for operation a motor vehicle while impaired, they did not need to conduct an ASD.
An ASD is used to help police establish reasonable and probable grounds. A failure on an ASD, along with other indicia of impairment, would be used to determine if a police officer has the necessary grounds to arrest the individual.
If you were immediately arrested, or arrested after failing an ASD, you can challenge both results. The Criminal Code puts strict limits on police powers when they are investigating impaired driving offences. If they police do not follow these requirements, you can allege that your Charter rights were breached which could lead to the result of the exclusion of your breath sample and your acquittal. Charter arguments alleging breaches of unreasonable search and seizures are common in impaired driving cases.
Common Defences to DUI Charges
Defences for impaired charges can include issues such as the following:
- Improper arrest of the accused
- Improper reading of the breath samples
- Improper collection of evidence against the accused
- Violation of the rights of the accused to speak with a lawyer in privacy
- Violation of the rights of the accused to have a trial in a timely manner
- Mistakes on the part of the arresting officer
- Incongruencies in the documentation by the police
- The prosecution being unable to prove the case beyond a reasonable doubt
It is the responsibility of the prosecutor and the police to prove that the accused is guilty of the charges against them.
What Happens to my car if I get charged with Impaired Driving related offence?
Once you are arrested for impaired driving, the vehicle you were operating will be towed and kept at the police impound for a period of 7 days.
Note: it is irrelevant that the car was registered to someone else, the car operated by the person charged with impaired driving will be impounded.
After 7 days, the car can be picked up from a police impound. You will be responsible for the fees associated with the storage of the car over the 7 days.
Will I Lose my Driver’s License? – Consequences for Impaired Driving
In Ontario, when you are charged with impaired driving, ‘over 80’, or refusal, you will immediately face the following consequences:
- 90-day licence suspension
- 7-day vehicle impoundment
- $275.00 licence reinstatement fee
If convicted after trial, or if you pleaded guilty, these are some of the common consequences you will face:
- $1,000.00 fine (for first offence), 30 days jail (for second offence), 120 days (for third offence)
- Licence suspension of at least 1 year (for first offence)
- The installation of the Ignition Interlock Device (at your own expense)
- Being required to attend the Ministry of Transportation “Back on Track” assessment or the assessment and the Educational or Treatment Programs
- Massive insurance increases
- A criminal record (which may limit your employment prospects)
- Your ability to travel internationally could be affected
- Possible immigration-citizenship consequences
Will my License Still be Suspended Even if I Complete Substance Abuse Counselling?
A mandatory minimum sentence means that neither the Crown nor the Court have the discretion to prescribe a lesser sentence regardless of the upfront work you complete Although the court will commend you for taking steps to better yourself, the upfront work and/or counselling you do will not be able to reduce your sentence to anything lower than the mandatory minimum as prescribed by the law.
How do I Install the Interlock Device?
You will need to contact one of the government-approved interlock service providers to schedule an appointment with them. The companies will also be able to advise you of the cost. You will be responsible for paying the cost of the device.
Impaired/Over 80 Blogs
What Should I Do if I am Charged with a DUI?
What is an Ignition Interlock?
Your Reputation After A DUI Charge
Is Driving Under The Influence A Criminal Offence?
How Can I Beat my Toronto DUI Charge?
What are the Impacts of a Second Impaired Driving Charge?
Should I Take a Plea Deal for an Impaired Driving Charge?
What is an Approved Screening Device (ASD)?
Can I be Charged with a DUI for Driving a Boat?
Can I be Charged with a DUI if I was Not Driving?
How Much does an Impaired Driving Lawyer Cost?
Can I Have My Impaired Charge Dropped?
Is Dangerous Driving (Dangerous Operation) a Criminal Offence?
Impaired Driving Offences: Reducing the Automatic Licence Suspension
Drinking and Driving—Impaired Operation and Over 80 Charges
Roadside Screening Device for Testing Drivers’ Saliva for Cannabis
Jan 07
Appellate Advocacy
Appellate Advocacy
Lockyer Zaduk Zeeh is renowned for its expertise in appellate advocacy, most notably at the Court of Appeal for Ontario and the Supreme Court of Canada. Lawyers at our firm have conducted literally hundreds of criminal appeals and have secured the exoneration of many persons convicted of crimes. Our achievements in this sphere of practice are unparalleled. We have played a transformative role in Canadian criminal law through the advancement of novel factual and legal issues. We have a proven track record of success in getting our clients’ appeals heard and their convictions overturned. Our appellate lawyers are highly skilled in crafting legal arguments that persuade appellate judges to rule in our clients’ favour.
We advance the interests of our clients on appeal in many different ways. A few examples include establishing that the trial judge made a significant error by admitting or refusing to admit evidence, improperly instructing the jury on a point of law, failing to permit cross-examination of a witness on an important issue, demonstrating bias against the person charged, or imposing a sentence that was unreasonable.
In some cases, evidence of innocence not presented at trial comes to light after a conviction and we are able to gather it for presentation to the Court of Appeal. Our long list of appellate cases, many of which have resulted in fundamental changes to the law, are reported in legal journals and are frequently cited by judges throughout Canada. We evaluate every appeal with scrutiny of the proceedings that unfolded at the trial below with a view toward exposing possible miscarriages of justice.
If you need assistance with an appeal, call LZZ at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation. LZZ’s vast experience and knowledge of the law and passion for justice make us Canada’s leading criminal appellate firm.
Common Questions Regarding Appeals
Grounds on Which to Appeal conviction and/or sentence the Court of Appeal for Ontario
Was key evidence missed by the judge
Commonly referred to as a “misapprehension of evidence”, this occurs when a trial judge fails to consider evidence relevant to a material issue. It can also be found when the trial judge has miscategorized the evidence or failed to properly appreciate it. Misapprehended evidence could be something as discreet as a trial judge confusing key timing, or as blatant as a judge forgetting to account for key pieces of evidence that were crucial to the case.
Did the jury properly instruct the jury on the law?
In a jury trial, the trial judge provides an instruction to the jury after all the evidence has been called. Known as a “jury charge”, this instruction is meant to summarize the important evidence and provide the jury with a guideline of how to apply the law. It is the jury that decides the facts, but the jury must follow the law as instructed by the judge. If a judge provides the wrong instruction or misstates the law, the result is an unfair trial.
Did the judge factor in your background when imposing sentence?
Sentences are meant to be individualized to the offender, their background, and the facts of the case. Sentencing principles require the sentencing judge to consider an offender’s background to ensure that the right sentence is imposed. If a judge fails to consider an offender’s background, the sentence may be unfit or arrived at in error.
Did the judge review the cases of all parties fairly and equally?
It is a long-standing principle that it is a trial judge’s duty to fairly review caselaw and the arguments of both parties. Failing to do either is an error that could potentially lead to the overturning of a conviction on appeal.
Were you able to fairly present your case?
Every accused person has the right to make full answer and defence, and to explore and respond to the allegations brought by the state. A court is not to interfere in that right. Judicial interference with an accused right to conduct their defence gives rise to a breach of the principles of natural justice, which is reviewable on appeal.
Was the law properly applied?
Judges are expected to know the law. Though trial judges are afforded deference on appeal, the failure to apply a legal principle is matter of severity for which a reviewing court will need to interfere and remedy.
Did you receive reasons from the judge?
A trial judge has a duty to give reasons for any ruling made. An accused person should not be left in doubt about why a conviction has been entered; likewise the reasons should permit meaningful review. The failure to provide reasons and/or reasons that allow for appellate review can result in a new trial.
Was the verdict unreasonable?
A verdict is unreasonable when it is not supported by the facts. A verdict is likewise unreasonable where the judge draws an inference or makes a finding of fact essential to the verdict that is demonstrably incompatible with otherwise uncontested evidence. Unreasonable verdicts are rare, but they do happen. In R. v. Phillips, 2020 ONCA 323, for example, the Court of Appeal for Ontario found that the appellant’s convictions of break and enter and theft to be unreasonable as there was no evidence that connected him to the break-ins or thefts. The convictions were overturned and substituted with acquittals.
Was improper evidence introduced at trial?
In all cases, a Crown produces evidence to support its theory of an accused’s guilt. Evidentiary issues are therefore at the heart of every criminal case. Some evidence is presumptively inadmissible, like an accused’s statement, an accused’s prior bad behaviour, hearsay, or evidence of a complainant’s sexual history. These evidentiary rules are in place to maintain fairness in all proceedings. If improper evidence gets in, the prejudice to an accused could be overwhelming such that it breaches their fair trial rights. The admission of improper evidence is an issue of grave concern for appellate courts.
Jan 07
Assault
Assault
The Criminal Code of Canada defines assault as any intentional use of force against someone without their permission. This includes everything from pushing another person in anger, to hitting or punching them, scratching or spitting at them, pulling their hair, and even injuring them with an object. Simple assault is the least serious type of assault charge but it’s still a criminal offence.
If you’re charged with assault, it’s important to seek legal advice right away. A conviction for assault will have a major impact on your life. It could result in both jail time and a criminal record. A criminal lawyer can review the evidence against you and advise you on your best options for defending yourself against the charge. They may be able to argue that you were acting in self-defence or that the other person was the aggressor.
Simple assault: Assault can be committed in many ways, including pushing someone. Although there must have been some physical contact for it to qualify as an assault charge. Simply threatening violence could also count towards this crime if done purposefully and maliciously enough without any other examples of harm coming from your actions.
Assault causing bodily harm: When an assault results in physical harm, such as a black eye or a similar injury to the complainant’s face, the charge can be upgraded to the more serious charge of assault causing bodily harm.
Assault with a weapon: The charge can result from an assault involving a weapon such as a knife, firearm or even a random object such as a beer bottle or towel.
Aggravated assault: A simple assault can turn into aggravated assault if it results in serious injuries, such as a broken arm or leg, or endangers the complainant’s life.
Domestic assault:The charge involves a conflict between two parties in a domestic relationship.
The criminal defence lawyers at LZZ have extensive experience successfully defending against all types of assaults. If you or someone you know has been charged with assault you should contact a criminal lawyer immediately to help determine the best defence. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Assault
What is Considered an Assault?
An assault is the application of force without consent. According to the Criminal Code, an assault occurs when an individual:
• applies force intentionally to another person, directly or indirectly;
• attempts or threatens, by an act or a gesture, to apply force to another person, if he has, or causes that person to believe on reasonable grounds that he has the ability to affect his purpose; or
• while openly wearing or carrying a weapon or an imitation, a person accosts or impedes another person and/or begs.
This definition applies to all forms of assault, including sexual assault, assault with a weapon, assault causing bodily harm and aggravated assault.
What is Consent?
An individual can consent to the application of force, such as a hug or other touching. Also, individuals can consent to a fight, so it is a full defence if the trial judge found that it was a consent fight.
There are times when an individual cannot consent to the application of force. One example is someone cannot consent to grievous bodily harm. The Criminal Code also limits consent to where the complainant submits or does not resist by:
- fraud
- the application of force
- threats or fear of force
- the exercise of authority
How do I Defend my Assault Charge?
Common defences to assault charges include:
• consent, e.g. a consensual fight;
• self-defence of yourself, others or your property; and
• defence of someone under your protection.
Are there Different Forms of Assault?
The Criminal Code defined different types of assault, such as:
Assault (also known as Common Assault, Simple Assault or Assault Simpliciter): An assault occurs where one person applies force upon another person. A common assault, usually involves no injury or very minor injuries
Domestic Assaults: though not a specific charge in the Criminal Code, it is an important classification of an assault that occurs in a domestic context. The Crown must prove the nature of the relationship.
Assault with a Weapon: Is the application of force with a weapon or while in possession of a weapon.
Assault Causing Bodily Harm: Is when an assault caused injuries which are more than trifling or minor in nature.
Aggravated Assault: Is when an assault maims, disfigures, wounds, or endangers the life of the victim. This is considered the most serious form of assault since the injuries required to constitute an aggravated assault are more severe than the other forms of assault.
What Should I do if I am Charged with Assault?
You should contact the lawyers of Lockyer Zaduk Zeeh to discuss your matter. We are experienced at representing people charged with all forms of assault. LZZ has successfully defended people charges with assault in all the Toronto courthouses including Etobicoke, North York, Scarborough, College Park, Old City Hall, and the Superior Court of Justice. Please contact us at 416-613-0416 or at info@lzzdefence.ca to schedule a consultation.
Jan 07
Bail Hearings / Bail Reviews
Bail Hearings / Bail Reviews
Bail Hearings
An arrested person has the right to be brought before a justice of the peace for a bail hearing within 24 hours of their arrest. Bail hearings are held when someone is in custody but not yet convicted of a crime. LZZ understands that the initial arrest and detention can be a traumatic experience and our lawyers are prepared to run a bail hearing as soon as possible.
When arrested, the police may decide to release the accused person from the police station. However, the law recognizes that the safety of the public and the proper functioning of the justice system may require an accused person to remain in custody and be brought before the court for a bail hearing. At a bail hearing, an accused person can either be released on bail, subject to certain binding conditions, or they will be ordered detained pending the completion of their criminal matter.
Pre-trial detention is unusual. LZZ appreciates the importance of a successful bail hearing and has conducted countless of successful bail hearings. The lawyers at LZZ will design a winning strategy to persuade the court to release the accused person.
Bail Review
If an accused person has been denied bail, there is a process by which the accused may seek a review of the decision. This process is called a bail review.
A bail review is an appeal of the bail hearing result that proceeds before the Superior Court of Justice. When seeking a bail review you must show the court that circumstances of the case have changed materially. For example: an entirely different and stronger bail plan, changes in the Crown’s case, or the passage of time. Or, that the justice of the peace or judge who presided over the initial bail hearing made an error of law.
It is important to remember that the Crown also has the right to seek a bail review if you were released at a bail hearing.
Bail Pending Appeal
Bail pending appeal is when a person is granted release from custody while his or her appeal is litigated before the Court of Appeal. If a person is seeking release on bail pending appeal, they must satisfy the court that three conditions are met:
- The Applicant must prove that the appeal is not frivolous, meaning that there is some arguable ground of appeal
- The Applicant must satisfy the Court that they will surrender into custody as required
- The Applicant must demonstrate that his or her release from custody is not contrary to the public interest
The first step in applying for a bail pending appeal is to file a notice of appeal as well as the supporting documents. Your lawyer will also file supporting materials for your bail pending appeal application. These materials usually include affidavits from the Applicant, the proposed sureties and a notice of application.
The criminal defence lawyers at LZZ have extensive experience conducting successful bail hearings, bail reviews and bail pending appeals. If you or someone you know has been charged with a criminal offence and is currently in jail call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.
Common Questions Regarding Bail Hearings
What is a bail hearing?
A bail hearing is when a judge or justice of the peace decides whether you should be kept in jail or released into the community pending the outcome of your criminal matter. A bail hearing happens after a person has been arrested and charged with a criminal offence. An accused person may be physically brought to bail court or may be brought virtually from either the police station or an institution via Zoom.
What do I do if I am not released during a bail hearing?
If you were not released during a bail hearing, you will be remanded in custody. If you are still at the police station, you will be transferred to an institution, if you have already been transferred to an institution. You will remain in custody until your charges are dealt with. You may be released before your charges are dealt with if you bring a bail review, and are successful.
Do I need money to get out on bail?
Not necessarily. Often, the court chooses to release an accused person on a promise to pay, meaning that no money is required to be deposited up front. The financial obligation is often dependent on the individual circumstances of the case before the court, there is no set cost or price for bail or certain criminal offences.
How do I prepare for a bail hearing?
There is not much preparation an accused person can do for their own bail hearing. An accused person does not often testify at their bail. However, if any preparation is required, your lawyer will contact you prior to the bail hearing to prepare. Typically, all of the preparation is between your lawyer and the proposed sureties.
What is a bail plan?
A bail plan is the plan that you present to the court in order to convince them that you should be released. The plan needs to be well thought out and address any supervisory concerns the court or Crown may have.
What are the different types of bail plans?
There are many different types of bail plans. Some factors that affect the type of plan you propose at your bail hearing will include the charges you are facing and your criminal record. Your lawyer will advise you what kind of plan will maximize your chances of release. Other elements that are often incorporated into bail plans are a curfew, house arrest or ankle monitor.
Examples of bail plans are:
- Own recognizance
- Bail program
- Surety bail
Own Recognizance
This plan involves being released from custody without a surety. In other words, you are responsible for supervising yourself.
Bail Program
Bail program is a supervision program that acts in the place of a surety. Bail program is often proposed as part of the bail plan when the accused person does not have anyone to act as a surety for them. However, not everyone is eligible for bail program. Prior to a bail hearing, bail program will interview you in order to confirm if you’re eligible for the program.
Surety Bail
A surety is someone who promises the court that they will supervise you and be responsible for you while you are on bail. A surety also makes a financial promise to the court. If the person they are supervising doesn’t follow their conditions they could lose some or all of that money. There is no fixed financial pledge the surety is required to make. The amount varies and depends on the specific facts of the case.
Can I talk to a lawyer at LZZ if I have an upcoming bail hearing or if someone I know is going to have a bail hearing?
Yes, the lawyers at LZZ are always available to discuss an upcoming bail hearing, regardless if the bail hearing is for you or for someone you know. It is important to talk to a lawyer prior to conducting a bail hearing in order to maximize the likelihood of release.
What are my rights regarding a bail hearing?
As per s. 503 of the Criminal Code, an accused person has the right to be brought before bail court within 24 hours of their arrest. As outlined in section 11(e) of the Charter, an accused person also has the right to not to be denied reasonable bail without just cause.
What happens if I am released by the arresting officer and receive an appearance notice?
If you are released from the police station, the appearance notice you were given will have your next court date noted. It is important that you contact and retain a lawyer prior to your first court date. If you retain a lawyer, they will be able to appear on your behalf. However, if you do not have a lawyer before your first court date, you will be required to attend your court appearance.
What happens if I’m arrested while I’m already on bail?
You will be charged with the criminal offence of failure to comply and brought before a bail court for another bail hearing.
Does my surety have to appear in person for my bail hearing?
It depends on the jurisdiction of your bail hearing. Currently, most bail hearings are proceeding via Zoom for the time being. However, your lawyer will advise you if your surety is required to attend in person.
Jan 07
Wrongful Convictions
Wrongful Convictions
The justice system makes mistakes. They may result from inadequate investigations, flawed forensic evidence, lying or mistaken witnesses, prosecutorial tunnel vision, or simple human error. Whatever its cause, the consequences of a wrongful conviction are inevitably devastating—lives are destroyed and reputations are ruined. Canadian criminal law provides an appellate process that allows some miscarriages of justice to be identified and corrected. But the appellate process comes to an end and history shows that injustices sometimes continue.
Our lawyers have represented some of the best known victims of miscarriages of justice and seen them reversed, sometimes with apologies and compensation from governments. It is a difficult area of litigation, requiring a specialized set of skills and experience. We have pioneered the preparation of applications for Ministerial Review by the Minister of Justice under Part XXI.1 of the Criminal Code. We work regularly with leading forensic scientists who help correct the mistakes of government laboratories. We have a close and continuing relationship with Innocence Canada (formerly known as Association in Defence of the Wrongly Convicted (AIDWYC)) which draws miscarriages of justice to the attention of the media and the public.
Lockyer Zaduk Zeeh occupies a unique position in securing justice for the wrongly convicted in Canada. We work with highly qualified investigators to track down fresh evidence which can emerge years—even decades—after a conviction. The lawyers at Lockyer Zaduk Zeeh are continuing to work hard to overturn miscarriages of justice.
If you or someone you know has been wrongfully convicted you should contact a criminal lawyer at Lockyer Zaduk Zeeh immediately. Call us at (416) 613-0416 or (416) 595-9500 or contact us online for a free consultation.