Receiving a discharge

Although a discharge is a possible outcome, the judge ultimately decides what sentence you will receive. The judge may impose a harsher penalty than what your lawyer or the Crown prosecutor sought. The judge decides on the sentence to impose after hearing submissions from the Crown and from your lawyer.

A judge will grant a discharge only if they determine it to be in your interest and not contrary to the public’s interest. In Alberta, the following factors are considered by the sentencing judge before granting a discharge:

• the nature of the offence;
• the prevalence of the particular offence in the community;
• whether you stood to gain personally from the offence;
• the value of the property stolen;
• whether the offence was committed to impulse or calculated; and
• whether the commission of the offence should be a matter of record.

Ultimately, it is impossible for your lawyer to guarantee a discharge as the outcome of your case because the decision-making power always rests with the judge at the sentencing hearing.

Options

There are a variety of ways for the criminal justice system to impose penalties on individuals without imposing a criminal record. Aside from a discharge, a peace bond, alternative measures program, or other diversionary measures are possible outcomes that do not involve a criminal record. However, each of these options requires consent from the Crown prosecutor. Where that is not provided, you have three options remaining to avoid a criminal record.

1.                 Plead Guilty

You may plead guilty to the criminal charge. Doing so would mean scheduling a sentencing hearing. At sentencing, you or your lawyer can make submissions on what sentence you ought to receive. Similarly, the Crown prosecutor will make their submissions for what sentence you ought to receive. It may be that the Crown is seeking the same or a harsher penalty.

After considering what is in your best interest and whether it is contrary to the public interest, the judge may impose a conditional or absolute discharge. This would mean you avoid a criminal record. However, a judge may also impose a harsher penalty, which may involve a criminal record, tougher conditions, a lengthier term of probation, and could even involve jail time.

One benefit of pleading guilty is that you can say that you are remorseful; are voluntarily taking responsibility and entering an early guilty plea; and are saving precious court resources by not taking the matter to trial. These admissions can increase your chances of receiving a discharge. Your lawyer may also be able to schedule the hearing in front a judge that may be more willing to give you a discharge.

Another benefit for some individuals is that pleading guilty allows you to move on sooner.

A negative to pleading guilty is that you must be willing to take responsibility for the alleged crime. You cannot plead guilty if you maintain that you are innocent of any wrongdoing. Furthermore, pleading guilty means you give up your right to a trial.

2.                 Seek an Early Case Resolution with the Crown

If you are prepared to admit to having committed the offence, you can decide to have your lawyer negotiate with the Crown prosecutor about a potential early case resolution (“ECR”). This is often colloquially termed a “plea deal” and it involves agreeing with the Crown on what sentence you should receive.

If the Crown prosecutor offers an ECR, you have the option of accepting the offer. If you accept the ECR, you would be required to plead guilty in court. Then, at the sentencing hearing, you, your lawyer and the Crown prosecutor will provide a joint submission on what sentence you ought to receive.

An ECR has many of the same benefits as pleading guilty but has the added benefit of involving a joint submission. The Supreme Court of Canada has instructed sentencing judges to give deference to joint submissions. Therefore, the judge is far more likely to impose the sentence sought as part of the joint submissions.

A negative to an ECR is that the Crown prosecutor may not entertain a favourable sentencing position and may not be agreeable to seeking a discharge. If this is the case, accepting the ECR means not receiving a discharge and receiving a criminal record.

3.                 Plead Not Guilty

If you plead not guilty, you would be choosing to take your matter to trial. At trial, the Crown would be required to prove the essential elements of the charge beyond a reasonable doubt. You or your lawyer will be able to provide evidence to support any defences available to you. Your testimony is considered evidence that may be necessary for making out a defence.

A benefit of taking your matter to trial is simply that you may be acquitted, meaning you are found not guilty. The Crown prosecutor may not be able to prove its case, for a variety of reasons, and this would leave you with no criminal record and you will face no penalties.

However, it is also possible that you are found guilty and convicted. If this occurs, the matter will proceed to sentence. At sentencing, you would still be able to make submissions on what sentence you ought to receive and take the position that a discharge is an appropriate sentence. However, your chances of receiving a favourable sentence are reduced if you were found guilty at trial as opposed to having pled guilty to the offence.

In short, a negative of going to trial is the uncertainty of the outcome and its negative impact on your sentencing, should you be convicted.

Conclusion

At Muenz Criminal Law, we recognize that this is a difficult choice to make in your case, no matter what charges you face. Our lawyers are here to discuss with you the choices available to you and provide advice on how to proceed.

Ultimately, the choice is yours and there is no guarantee that any of these choices will result in a favourable outcome for your criminal case. What we can guarantee is that, no matter what choice you make, we will strongly advocate for the best possible outcome.

Author: Thomas Scholten

*Note: this article describes one way that a criminal record can be avoided. However, the term ‘criminal record’ is used here as shorthand to refer to a conviction on one’s record. The Canadian Police Information Centre (“CPIC”) will still have a notation on your record of the charge and its outcome, even if that outcome was not a conviction. When an employer conducts a regular criminal record check, that will only reveal convictions on your record.

Taking the following steps will help you get a restricted licence as soon as possible. Please note that the timeline for these steps differs if this is not your first IRS FAIL.

STEP 1: Pay the fine;

You will need to pay the $1000.00 fine online plus a mandatory $200 victim fine surcharge. Go to the SafeRoads Alberta website and enter your contravention number. You will then need to enter your surname, date of birth, and the contravention time. Contact us if you have any issues finding your contravention.

You will need to pay  your fines using a credit card or a debit card that has Mastercard or Visa functionality.

STEP 2: Attend the Planning ahead course;

In order to get the restricted licence, you will first need to register and attend the Planning Ahead course at AMA. You can sign up for the course here. You can also contact AMA at 780-430-8811 or toll-free at 1-800-272-5698. The course costs $333.00.

STEP 3: Apply to the IRS FAIL Ignition Interlock Program;

Two months after receiving your IRS FAIL, you are able to apply to the Ignition Interlock Program. This program allows you to gain a restricted licence that permits you to drive a vehicle with an ignition interlock device installed (i.e., a “blowbox”).

You can purchase the application form at an Alberta Registry and you can either fax or email it to Driver Fitness and Monitoring. Their fax number is 780-422-6612 and their email address is driver.fitness@gov.ab.ca. If emailing the application, send it in PDF format as an attachment.

We recommend contacting Driver Fitness and Monitoring two or three business days after sending your application to Driver Fitness to ensure your application has been received.

Choosing not to participate in the program means your licence will be suspended indefinitely.

STEP 4: Contact Smart Start, Alberta’s Interlock service provider, to have the blowbox installed;

Call them toll-free at 1-844-432-4776 or go to their website for more information.

You may have a blowbox installed in multiple vehicles, including company vehicles, and you may share these vehicles with other drivers, including other drivers participating in the ignition interlock program.

STEP 5: Get the restricted driver’s licence.

Once the Certificate of Installation is signed by the installer, Smart Start, you must bring the Certificate to a registry to get a restricted driver’s licence. Once you have a restricted driver’s licence, you will only be legally permitted to drive a vehicle with an ignition interlock/blowbox installed.

OTHER INFORMATION

• Retrieve your vehicle.

You’ll be able to retrieve your vehicle after 30 days from the date of receiving your IRS FAIL. See your seizure notice for more information on where your vehicle is currently impounded.

You will be liable for the impound lot fees and retrieving your vehicle may be a prerequisite for installing the blow box as per (4) above.

• Applying for an exemption.

You can also apply for an exemption to the blowbox installation if you’re physically incapable of using a blowbox. Unfortunately, financial constraints, vehicle inaccessibility, and occupational hardships are not accepted as reasons for an exemption.

Before applying for an exemption, you will have to contact Smart Start to test your ability to use a blowbox. This is provided at no charge. Contact Smart Start at 1-844-432-4776.

You will also need to get a letter from your physician verifying your medical condition that inhibits your ability to use a blowbox. This letter should also have the evidentiary medical testing that supports the physician’s diagnosis.

Then, to get an exemption, submit a letter to Driver Fitness and Monitoring by fax or email (in PDF format) with the following information:

• Your driver’s licence number or Motor Vehicle Identification number;
• Full name and birth;
• Mailing address, telephone number, and email address; and
• The reasons for why it is not feasible for you to use a blowbox.

I recommend contacting Smart Start after you’ve applied to the Ignition Interlock Program and only request the testing if you’ve got a diagnosis that seriously effects your lung capacity.

• After the installation of the blowbox.

You will need to drive your vehicle for a minimum of 100 kilometers per month with the blowbox installed for twelve months before you’re eligible to have it uninstalled and to have a regular licence re-instated. This Information Sheet on the Ignition Interlock Program may answer any questions you have.

Disclaimer:

If you’ve been contacted by the police because of a sexual assault allegation, please consider calling a lawyer immediately. At Muenz Criminal Law, we strive to answer phone calls at all hours of the day – including after-hours.

If you’re unsure about talking to the police or are considering providing the police your version of what happened, please exercise your right to a lawyer and call us. We offer free consultations and will help you determine what the best course of action is.

Sexual Assault

The law on sexual assault is anything but straightforward. However, the essential parts of any criminal offence can be summed up as follows: the crown prosecutor has to prove, beyond reasonable doubt, that the accused committed the act (“actus reus”) and had the requisite intention to do so (“mens rea”).

Actus Reus

The actus reus of sexual assault consists of three elements: (1) that the accused made physical contact with the complainant¹, (2) that the physical contact was sexual in nature, and (3) that the complainant did not consent to the physical activity. If the complainant consented, then the actus reus is not made out.

As can be seen, there is no need for there to have been any violence or resistance to the physical contact in question. It is enough for the complainant to have subjectively not consented to the physical touching.

Mens Rea

The mens rea of sexual assault requires two things: (1) that the accused had the basic intention to touch the complainant and (2) that the accused was aware of the absence of consent by the complainant.

However, the prosecution can also assert that the accused was wilfully or recklessly blind to the fact that the complainant did not consent. So, where an accused claims that they did not know that the complainant did not consent, the accused will also have to show that their belief that the complainant consented was reasonable.

This is often referred to as the defence of having an honest but mistaken belief in consent.

Intoxication

So where does intoxication come into play with a sexual assault case?

That is dependent on each case but intoxication can play a role in every aspect of a sexual assault case.

First, a complainant may not remember whether they consented at the time of the sexual activity because of a “black out”. While this may benefit an accused and their case, it remains open to the prosecutor to argue that circumstantial evidence shows the complainant did not consent at the time of the sexual activity.

Second, a prosecutor may argue that the complainant was so intoxicated that they could not consent to the sexual activity (even if they wanted to). Typically, extreme intoxication is required for someone to be considered unable to consent but it is not uncommon for prosecutors to argue that a complainant was too intoxicated to consent. A prosecutor may even rely on the complainant’s “black outs” as evidence of their extreme intoxication.

Third, an accused may not remember what happened due to their intoxication and their own “black outs”. This makes it difficult for accused to testify as to what actually happened and why they had a genuine belief that the complainant consented to the sexual activity.

Fourth, section 273.2 of the Criminal Code specifically prohibits accused from relying on their own voluntary intoxication as a basis for having a genuine belief that a complainant consented. In other words, an accused cannot claim that, because they were drunk, they did not realize that the complainant did not consent.

Self-Induced Intoxication akin to Automatism

On May 13, 2022, the Supreme Court of Canada rendered a new decision titled R v Brown, 2022 SCC 18. It has been subject to broad publicity because of the implications of assault and sexual assault cases.

In restoring the acquittal for the appellant in R v Brown, the Supreme Court of Canada declared section 33.1 of the Criminal Code unconstitutional. As a result, it no longer has any force or effect on trials in Canada.

Section 33.1 prohibited accused from relying on self-induced intoxication as a defence to crimes such as sexual assault and aggravated assault. With this section no longer in effect, the accused can now argue that they did not have the intent to commit the crime alleged as a result of their self-induced intoxication.

It is important to know, however, that for this defence to work, the level of intoxication must be so severely high that it was akin to automatism. It is not enough to be merely drunk and it is unclear if alcohol alone can lead to this level of intoxication.

Automatism is defined as a psychological state where actions are performed without conscious thought or intention. In other words, the actions are committed by that person involuntarily. It is for this reason that, where a person experiences automatism by way of intoxication, they have a legal defence.

Conclusion

What anyone can gleam from the way intoxication is treated at law is that it can unfairly prejudice the accused.

A prosecutor can rely on intoxication to suggest that the complainant couldn’t consent and use it as an excuse for the complainant’s lack of memory. However, a defence lawyer cannot excuse the behaviour of their client, the accused, by way of their intoxication and, if an accused does not remember the incident due to intoxication, a court is more likely to believe a complainant’s version of events.

So why does the prosecution and the complainant have the benefit of relying on intoxication while it is a detriment to the accused’s defence? Fundamentally, it is because of presumptions in our justice system regarding the respective roles of the accused and the complainant. There is the presumption that the complainant was a passive participant in the alleged sexual assault while it is presumed that the accused initiated the sexual activity and was the active participant in the sexual assault.

A knowledgeable and skilled criminal defence lawyer will argue in court that these presumptions cannot cloud our judgment about what occurred during an alleged incident of sexual assault. If you or someone you know has been charged with sexual assault, give us a call at 403-543-6666 to learn how we can help.

¹ Technically, the actus reus is also made out if the accused threatened physical contact.

Author: Thomas Scholten

The intended purpose of SOIRA is to assist police services across Canada in the prevention and investigation of sexual offences. In effect, a SOIRA order requires individuals convicted of select offences to report at a police station or RCMP detachment, placing them on a national database of individuals who have been convicted of the same select offences.

If you’re subject to a SOIRA order, you’ll be happy to hear that only the RCMP and police services can access the national database. In the United States, the sex offender registry is publicly available leading to the misconception that the same is true in Canada.

While SOIRA is concerned with the obligations of registered individuals and the administration of the national database, the Criminal Code of Canada is responsible for the mechanism leading to a SOIRA order. Specifically, section 490.011 of the Code sets out which offences can lead to a SOIRA order and section 490.012 sets out how a SOIRA order can be made.

The list of offences for which a conviction can lead to a SOIRA order is extensive but includes, by way of example, the following offences:

• sexual assault
• incest
• child pornography
• sexual offences against a child
• sex trafficking

Before 2011, a SOIRA order was not guaranteed after a conviction of the aforementioned sexual offences. Due to amendments in 2011, a SOIRA order is now a mandatory consequence of being convicted of a sexual offence.

2.     What are the obligations imposed by a SOIRA order?

In Alberta, a person subject to a SOIRA order must report in-person at the appropriate location: the police station, RCMP detachment, or aboriginal police service headquarters that is nearest to their primary residence.

When a SOIRA order is made, the affected person must report with seven days of it being made. Subsequently, the person must report every year after for the duration of the order. Additionally, if the person moves, changes their legal name, or receives either a driver’s licence or passport, they must report within seven days.

When reporting, the person must provide their name and any alias they use, their date of birth, gender, phone number, their address(es), their place of employment (if any), their place of education (if any), and other personal details.

3.     How long is a SOIRA order?

The duration of a SOIRA order depends on the offence for which the person was convicted. nevertheless, the duration is of a SOIRA order is always one of the following:

• 10 years;
• 20 years; or
• Lifetime

4.     Can I end my SOIRA order early?

We understand that a SOIRA order can be cumbersome and seriously effect your livelihood. For those subject to a SOIRA order, the good news is that the order can be terminated early. The bad news is that there are several caveats to this.

Like all things law-related, terminating a SOIRA order is more complicated than it may first appear to be. The following are just some of the considerations that can hinder one’s ability to have a SOIRA order terminated.

First, a SOIRA order can only be terminated after the first half of its duration has lapsed or, in the case of a lifetime SOIRA order, after 20 years. In other words, if you’re subject to a 10 year SOIRA order, you must wait five years and, if you’re subject to a 20 year SOIRA order, you must wait 10 years.

Second, the SOIRA order can only be terminated after a successful application heard in court. If the SOIRA order was made by a justice of the Court of Queen’s Bench, then the application to terminate the order must also be made in the Court of Queen’s Bench. If the SOIRA order was made in provincial court then the application may also be heard in provincial court.

Third, and finally, an applicant seeking to have their SOIRA order terminated must demonstrate that the order’s impact on their privacy and freedom exceeds the public’s interest in preventing and investigating sexual offences. This is a difficult threshold to meet and we recommend that you retain a criminal defence lawyer that can assist you with proving in court the impact that a SOIRA order has had on you.

At Muenz Criminal Law, we would be happy to answer any questions you have regarding SOIRA orders. Contact us here for a free consultation

Written by Thomas Scholten[/vc_column_text][/vc_column][/vc_row]

The IRS program gave police officers a new way to deal with impaired drivers (commonly understood as “driving under the influence” or DUI). Rather than criminally charging an impaired driver and transporting them to the nearest police detachment for processing, an officer can now issue what is called an IRS: Fail. The IRS: Fail can be given to the impaired driver on the roadside and the associated penalties take immediate effect. Hence, the name: immediate roadside sanction.

The IRS program quickly became the preferred method for police officers to deal with impaired drivers although police officers will, on rare occasion, issue both an IRS: Fail and criminally charge a driver.

However, before an officer can issue an IRS: Fail, the officer must have grounds to believe that the driver is impaired. Typically, this is achieved through the use of a breathalyzer. Due to recent amendments to the law governing breathalyzers, police officers can now more freely administer breathalyzer tests to drivers. Typically, the issuance of an IRS: Fail will only follow if one of the following occurs: (1) the driver fails the breathalyzer test (i.e., they 'blew over the legal limit'), (2) the driver refuses to participate in the breathalyzer test, or (3) the driver repeatedly fails without lawful excuse to provide a sufficient breath sample for use with the breathalyzer. Additionally, police officers can issue an IRS: Fail for drivers impaired by drugs through other approved tests.

Importantly, an IRS: Fail is not a criminal charge and will not appear on a criminal record (although it will appear on your driving record). An IRS: Fail can also never involve imprisonment. Consequently, it is considered to be an administrative program.

This distinction is essential since the Canadian Charter of Rights and Freedom provides important protections to individuals who are criminally charged. Under the IRS program, these protections are not readily available to drivers. For example, under the IRS program, a driver does not have a right to a trial in court and the penalties take immediate effect. Additionally, police officers regularly refuse to provide drivers with an opportunity to contact a lawyer, despite section 10(b) of the Charter explicitly stating that “Everyone has the right on arrest or detention… to retain and instruct counsel without delay and to be informed of that right.”

Since the IRS program is young, we expect that the program will see revisions as lawyers challenge the program’s constitutionality in court. In the meantime, drivers should be aware that they will not have the same Charter protections under the IRS program as they do would if they were criminally charged.

2. The Penalties of an Immediate Roadside Sanction

The penalties you receive from an IRS: Fail will depend on whether it is your first, second, or third contravention.

First IRS: Fail	Second IRS: Fail	Third or Subsequent IRS: Fail
90 Day Driving Prohibition	90 Day Driving Prohibition	90 Day Driving Prohibition
12 Month Licence Suspension with the Option to Participate in the Ignition Interlock Program ($1,398)	36 Month Licence Suspension with the Option to Participate in the Ignition Interlock Program ($3,678)	Lifetime Licence Suspension with the Option to Participate in the Ignition Interlock Program ($208 + $95 per month)
Mandatory one-day Planning Ahead Course ($333)	Mandatory weekend-long residential IMPACT program ($976)	N/A
30-day vehicle seizure plus the cost associated with the seizure and impound lot	30-day vehicle seizure (+ cost associated with seizure)	30-day vehicle seizure (+ cost associated with seizure)
$1,000 fine + $200 surcharge	$2,000 fine + $400 surcharge	$2,000 fine + $400 surcharge

*costs are subject to change and reflect the cost at the time of writing only.

The 90 day driving prohibition offers no exception and takes immediate effect. If you’ve been given an IRS: Fail, expect to not drive for the foreseeable future. The best chance you have of regaining your licence is challenging your IRS: Fail with an adjudicator (see below). After the 90 day absolute driving prohibition, the licence suspension with eligibility for the Ignition Interlock Program follows. To be eligible, you must have completed the mandatory course or program associated with the IRS: Fail (if any).

The Ignition Interlock Program allows you to drive a vehicle despite your licence suspension through the installation of an ignition interlock device (i.e., a blow-box). For individuals subject to their third IRS: Fail, the Ignition Interlock Program is a mandatory condition for driving for the rest of their lifes.

Moreover, there are also expenses associated with receiving an IRS: Fail. The total cost of these penalties, even for the first IRS: Fail, easily exceeds $3,000. Drivers should also be aware that their IRS: Fail will be reported on their driver’s abstract and impact their insurance rates.

Importantly, the IRS: Fail program offers no flexibility for the penalties given to the driver, meaning it is not possible to negotiate the penalties imposed on the driver. These penalties apply immediately and cannot be reduced, no matter how sympathetic one’s circumstances are.

3. The options for responding to an IRS: Fail

The Government of Alberta built into the IRS program a procedure to challenge the issuance of an IRS: Fail. Recipients of an IRS: Fail will undoubtedly be told that they have 7 days to request an appeal or review of their IRS: Fail (although, it is not unheard of that police officers will forget or omit to tell a driver of this). The administrative body responsible for reviewing IRS: Fails is SafeRoads Alberta.

When issued an IRS: Fail, the recipient will be given a Notice of Administrative Penalty which includes the necessary information for signing on to the SafeRoads Alberta Portal. This includes the recipient’s last name, date of birth, contravention number, and occurrence time. When logging in to the portal, the recipient will first see the information and records that support the issuance of the IRS: Fail. The portal also provides an option to pay their fine and the option to request a review of their IRS: Fail.

When requesting a review, the recipient must pay $130.00 and schedule the half-hour, virtual review in the following weeks. The review will consist only of the recipient, their lawyer (if any), and an adjudicator. The police officer(s) responsible for issuing the IRS: Fail are not involved in the review. Importantly, the recipient is responsible for convincing the adjudicator that the IRS: Fail must be cancelled.

If successful on review, the recipient’s IRS: Fail and associated penalties will be cancelled. The adjudicator will provide a written decision outlining their reason for cancelling the IRS: Fail. Although the decision will typically be provided at the end of the month-long vehicle seizure, the recipient will be able to retrieve their vehicle and regain their driver’s licence the following day. The recipient will also no longer be liable for the fine and surcharge or for participating in the interlock program.

If the review is unsuccessful, the recipient’s IRS: Fail will not be cancelled and the recipient will continue to be subject to the associated penalties. The recipient will have a right to a judicial review of the adjudicator’s decision but this is a lengthier and costlier process that will not be discussed in this article.

4. Retaining a Lawyer for the IRS: Fail Review

It is not necessary to retain a lawyer for an IRS: Fail Review. However, the grounds for cancelling the IRS: Fail are technical and set out in the SafeRoads Regulation and the Provincial Administrative Penalties Act. In rare circumstances, egregious police conduct can also be grounds for cancelling the IRS: Fail. Criminal defence lawyers have the skills and knowledge necessary to determine what grounds of review are available to a recipient. A good lawyer will also be able to provide succinct and persuasive submissions at the review in support of cancelling the IRS: Fail.

At Muenz Criminal Law, we go above and beyond. We will investigate and critically examine the information and records provided in support of the issuance of an IRS: Fail. We also take the time to learn from our clients what really happened when they received their IRS: Fail. We subsequently provide clients with our legal opinion and discuss their chances of success at the review. More importantly, we advocate for our clients at their review and will provide the adjudicator with persuasive legal written submissions and sworn affidavits beforehand.

Contact us to learn more about the legal representation we provide and how we can help you.

Written by Thomas Scholten