Defence

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Overview #

This page contains information about use of the “Consumption of alcohol or drug not intentional” defence for various criminal charges in Canada. It was written and prepared by experienced criminal defence lawyers in Toronto but does not consist of legal advice.

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Legal Defence #

Consumption of Alcohol or a Drug was involuntary (not intentional).

What this Means #

Notwithstanding that it has been proven that an accused’s ability to drive was impaired by alcohol or a drug or that the accused was over the legal limit, It has not been proven that the accused knowingly consumed alcohol or a drug before operating a conveyance (a conveyance is defined as a motor vehicle, an aircraft, a vessel or railway equipment).

For any case in which you are charged with impaired operation of a conveyance or operation of a conveyance with a blood alcohol concentration of blood drug concentration over the legal limit, it is a defence to the charge if there is a
reasonable doubt as to whether the alcohol or drug was voluntarily consumed.

This defence would arise in circumstances where there is an air of reality to the possibility that you did not realize that you were consuming alcohol for a drug. For example, in circumstances where your drink could have been spiked without your knowledge.

Charged with a Criminal Offence? Get Every Defence. #

Do not plead guilty without discussing your case with a lawyer.  Many criminal offences have mandatory minimum sentences and a conviction will often result in a lengthy jail sentence.  Being found guilty may result in negative employment, immigration and personal consequences to you and your family for years to come.  

You are presumed innocent.  With over 25 years of successful trial experience, Norm and Marcus will argue for every defence available to you and ensure that all of your rights are protected.  We will fight for the positive result you need to move on with your life. Speak with Norm and Marcus. Call (416) 855-7799 or email us at [email protected]. We accept calls 24 hours a day, 7 days a week. Confidentiality guaranteed. Free consultations. Meeting by appointment only.

Recent Successes #

BAC over legal limit not provenCharges DismissedImpaired Driving

R. v. R.M — Driving over the legal limit charges dismissed
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Our client was charged was charged with driving over the legal limit. His breath test results showed that his blood alcohol concentration was over two and a half times the legal limit. At trial, the breath technician testified that our client provided breath samples, the result of which were 220 mg per 100 ml of blood. At trial, we successfully argued that the Crown had not proven the our client was over the legal limit because the breath technician did not testify that the result was 220 mg of alcohol per 100 ml of blood so there was no evidence of what the 220 mg referred to. The charge against our client was dismissed.

BAC over legal limit not provenCharges DismissedImpaired DrivingOver 80

R. v. M.H — Driving Over the Legal Limit Charges Dismissed Due to Requirements not Being Met
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Our client was charged with driving over the legal limit. She was at a fast food drive though when the restaurant employee called the police to report that they believed they were dealing with an impaired driver. The police arrived a short while later and spoke to our client. They smelled alcohol on her breath and demanded that she provide a breath sample into an approved screening device (a roadside breathalyzer). A few minutes later, she provided a breath sample into the screening device and the result was a fail. She was subsequently arrested and taken to the police station where she provided two samples of her breath, the results of which were over 80. At trial, the Crown attempted to prove that our client was over the legal limit by relying on a document called a Certificate of a Qualified Breath Technician (this is a document in which the breath technician records the test results as well as other information that relate to the breath testing process. Having identified a mistake that the breath technician had made while filling out the Certificate of a Qualified Breath Technician, at trial, we successfully argued that one of the technical requirements had not been proven beyond a reasonable doubt. The charge against our client was dismissed.

Charges DismissedConsumption After Operation CeasedImpaired Driving

R. v. J.E. — Impaired Driving Causing Bodily Harm Charges Dismissed by Judge
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Our client was charged with impaired driving cause bodily harm.  He was driving in downtown Toronto just before last call when a pedestrian suddenly ran out onto the street to try to catch a taxi.  Our client was unable to stop his car in time and struck the pedestrian causing serious (but fortunately non-life threatening) injuries.  At trial, our client testified that he was a recovering cocaine addict and that late at night, he got a craving for cocaine and contacted an old friend in the hopes of obtaining drugs.  The friend agreed to meet our client for a beer at bar so our client snuck out of his house (his wife was asleep) to meet his friend.  At the bar, he and his friend each had one beer and our client’s friend talked out client out of doing drugs.  Our client’s craving passed and he agreed to drive his friend home after which he planned to return home himself.  Unfortunately, the accident with the pedestrian occurred as he was driving his friend home.  The accident occurred right in front of a bar just after last call.  A number of drunk patrons exited the bar and proceeded to yell at our client because he had struck a pedestrian.  Our client was overwhelmed by the situation and recalled that he had an unopened bottle of rum in the trunk of his car.  He proceeded to consume the alcohol before the police arrived.  Our client’s friend and his wife testified to to verify our client’s account of what happened and we also produced phone records that corroborated their evidence.  The trial judge not only had a reasonable doubt on the issue of whether or client was impaired at the time of the accident, but accepted that he was not impaired at the time, nor could any driver have avoided this accident considering how the pedestrian had suddenly run out onto the street.  The charge against our client was dismissed.

Charter ApplicationCharter ApplicationSearch WarrantSearch WarrantTrafficking DrugsTrafficking Drugs

R. v. A.F — Drug Trafficking Charges Withdrawn
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Our client was charged with possession of cocaine for the purpose of trafficking. Police executed a search warrant at our client’s residence and seized a large amount of cocaine as well as cutting agents, scales, baggies and cash. We filed a Charter application alleging breaches of our client’s rights to counsel, his right to be free from unreasonable search and seizure and his right to be free from arbitrary detention. After reviewing our Charter application, the Crown Attorney agreed to withdraw this charge. Note: This is a case where the police obtained a search warrant

Charges WithdrawnFirearmsTrafficking Drugs

R. v. T.B. — Cocaine Trafficking and Gun Charges Withdrawn
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Our client was charged with possession of cocaine for the purpose of trafficking and possession of explosives and a restricted firearm with ammunition. Police received a complaint from a man who alleged that he had just been in a fight with our client in front of our client’s house and that our client said he was going inside to get a gun. Because the complaint involved a firearm, more than a dozen police officers immediately attended at our client’s house. The police claimed that when they arrived, they saw the lights of a vehicle in the driveway flash on and off and saw a man run into a wooded area. A short time later, officers found our client in the wooded area and arrested him. They then immediately searched our client’s home and the car in the driveway. In the house, they found a large quantity of cocaine and other items consistent with drug trafficking. In the car, they found a firearm that was stored with ammunition and other explosives. Upon a review of the disclosure, we discovered that several of the police officers noted inconsistent explanations for why they decided to search the house and the car immediately rather than applying for a search warrant. Furthermore, we could prove that the explanations given by several of the officers were untrue. We believed that the police knew they did not have a lawful justification for searching the home and that a search warrant would not have been granted had they applied for one. After a number of pretrials with the Crown and a judge, the Crown agreed to withdraw these charges. Note: This is a case where the police did not obtain a search warrant

Charges WithdrawnImpaired DrivingNo Criminal RecordOver 80

R. v. S.R. — Impaired Driving Charges Withdrawn and No Criminal Record
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Our client, who was an off-duty police officer, was pulled over by police after someone called 911 to report an erratic driver on the highway.  The arresting officer claimed that he then observed our client driving at a hight rate of speed while weaving back and forth.  Our client was pulled over, arrested and taken to a police station where he blew more than twice the legal limit.  He was charged with impaired driving and over 80.  Prior to trial, we filed a Charter application alleging that the arresting officer did not have reasonable and probable grounds to arrest our client and that his rights to counsel were breached because the police unjustly terminated our client’s phone call with his lawyer before it was complete.  At trial, we thoroughly cross-examined the arresting officer and exposed a number of exaggerations and some outright lies.  Ultimately, the persecutor determined that due to the arresting officer’s impeached credibility, the trial judge was unlikely to find out client guilty.  Our client was offered a deal to plead guilty to careless driving under the Highway Traffic Act (which did not result in a criminal record or a driving suspension) in return for a withdrawal of the criminal charges.  Our client was more than happy to take the deal.