Singleton & Associates

ARRESTED – GETTING OUT OF JAIL

The most terrifying experience for anyone is getting arrested by the police. At the time of your arrest you are detained and are no longer free to leave and go about your business. The police take possession of your personal belongings, handcuff you and place you in the back of the police car for transport to the police station. After being processed at the police station, some people get released upon signing a “Promise to Appear” in court and some don’t. This article outlines the various forms of release from custody, who gets released and under what circumstances.

Promise to Appear in Court
The simplest form of release from custody is a “Promise to Appear” in court. This is sometimes referred to as an “Appearance Notice”. This is a form which the police complete and the Accused person signs. Upon signing, the Accused is released from custody on his promise to appear in court on a later date and to attend at the police station for fingerprinting and to have his photograph taken pursuant to the Identification of Criminals Act. Accused persons who normally reside in the area of the province under the jurisdiction of the court who are charged with relatively minor criminal and drug offences are usually released on a Promise to Appear. (An accused person who is not arrested can be issued a “summons” to appear in court.)

Undertaking with Conditions
The police may also ask an Accused to enter into an “Undertaking with Conditions” to secure his release from custody. This form of release is frequently used in domestic violence and sexual assault cases where the Accused will be asked to undertake to have no contact with the complainant or alleged victim. There can be other conditions such as abstaining from alcohol or drugs or residing at a particular address. The police have the burden of justifying these conditions should the Accused request a variation before a judge of the Provincial Court.

Bail Hearing
If the police decide not to release an Accused on a Promise to Appear, Recognizance or Undertaking, they must take him to court for a bail review within twenty-four hours of his arrest. At a bail hearing a judge will decide if the Accused will be released and the conditions of release. If a judge determines that an Accused can be released it will be in the form of a Recognizance entered into before a judge or justice. The Recognizance may be with or without a surety. A “Surety” is an individual who accepts responsibility for the Accused and promises to pay an amount of money to the court should the Accused fail to attend at court or fail to abide by his release conditions. Not everyone can act as a surety; for example, the court would not accept as a surety an individual without a fixed address or an individual who has a criminal record.

Who May be Refused Bail
If an Accused has a history of failing to show up at court or has a history of committing the same offence, he may be denied bail. Similarly, if the Accused was already out on bail and breached his release conditions, he may be denied bail. In some cases if an Accused was already on release conditions for an indictable offence, he may have to show cause as to why he should be released. As a general rule, if an Accused has already been released on conditions and is arrested again, the release conditions will be more onerous and may include a curfew and house arrest. If an Accused habitually breaches his release conditions, the court may decline to release him under any conditions and he will have to remain in custody until his trial. In some cases, after an Accused has been arrested, the Crown Attorney may request that the Court not proceed with a bail hearing for three days to permit the police to investigate further.

An Accused who has been arrested and not been released by the police pursuant to a “Promise to Appear” should always contact a lawyer to determine how to obtain his release from custody. An experienced criminal defence lawyer can navigate the often complex rules which will determine if you are released from custody and under what conditions. A failure to get it right the first time may result in a costly appeal of the bail decision.

Most Canadians are familiar with the police use of a roadside screening device to determine if alcohol is present in a driver stopped either at a police road checkpoint or on suspicion of impaired driving. The Criminal Code is quite clear that a fail on the roadside screening device provides the grounds for a police officer to make a demand that a driver provide a breath sample for the breathalyzer at the police station. A reading of over .08 on the breathalyzer at the police station will cause the police to lay the charge of failing the breathalyzer pursuant to section 253(1)(b) of the Criminal Code. The breathalyzer certificate, if found to be admissible by the court, will be proof of impairment for purposes of section 253(1)(b) of the Criminal Code.

When it comes to impairment by a drug, there is no device similar to a screening device or breathalyzer which the police can use to measure impairment by alcohol. When it comes to possible impairment by a drug, the Criminal Code provides a regime outlined at section 254 whereby a police officer who is designated a “drug evaluation expert” can give evidence of tests which the officer conducted to determine whether, in the officer’s opinion, an individual’s ability to drive is impaired by a drug. The regulations made pursuant to section 254(1) of the Criminal Code establish the qualifications of a drug evaluation officer and describes the tests that they perform in making a determination as to whether, in the officer’s opinion, a driver’s ability to drive is impaired by a drug. These tests, which are outlined in the regulations, include measurements of pulse and heart rates. There are also a series of eye examinations and physical divided attention tests. The drug evaluation officer will complete a “Drug Influence Evaluation” form and later prepare a written summary of the tests and their results. The drug evaluation officer will form an opinion as to whether or not the person’s ability to operate a motor vehicle was impaired by a drug and that would serve as the basis for either a demand for a blood sample or a urine sample which would then be sent to a forensic laboratory for analysis.

Drug evaluation expert “DRE” cases tend to be complex because legal issues arise as to the qualification of the drug evaluation expert to give opinion evidence in court. It is usually necessary to have a forensic toxicologist testify to give evidence if drugs were found in the urine or blood sample and their likely effect on a person’s ability to drive.

In Nova Scotia, most courts have found that a police officer who is qualified as a drug evaluation expert according to the regulations made pursuant to section 254(1) of the Criminal Code must be qualified to give expert evidence in court. Even if an officer is qualified to give expert evidence, there are always arguments which experienced defence counsel can make about the weight a trial judge should give to such evidence. Most reported drug evaluation cases in Nova Scotia have typically taken up to two days of court time and frequently involve applications based on the Charter rights of the accused given that part of the drug evaluation expert’s examination involves asking the accused to provide answers to various questions which can amount to self-incrimination.

Any driver charged with impairment which involved an examination by a drug evaluation expert should consult with an experienced criminal defence lawyer before agreeing to answer any questions for the police officer or participating in the test procedure. It is a criminal offence to refuse to participate in the series of tests mandated by the regulations pursuant to section 254(1) of the Criminal Code. However, an accused driver may not have to answer any of the questions posed by the police officer because those questions would tend to violate an accused’s Charter protected right against self-incrimination.

If you are charged with an offence of being impaired by a drug which involves a drug evaluation expert, you should consult with a lawyer who has experience in these complicated legal cases. If you require legal advice in this area please do not hesitate to call Tom Singleton at (902) 492-7000.

One of the most immediate consequences of being charged with an impaired driving related offence (drunk driving, DUI or refusal charges) is that your license will be suspended in Nova Scotia for period of ninety days under the Motor Vehicle Act. This suspension occurs because of the mere fact of being charged with an impaired driving related offence. While this kind of a driving license suspension, without the benefit of a trial or hearing is draconian, the situation gets worse when you attempt to get your license back after the ninety day suspension is over.

Numerous persons who have had their license suspended because of an impaired driving or related criminal charge have gone to Service Nova Scotia after their ninety day suspension is up thinking they would get their license back, only to learn that they cannot get their license back unless they have participated in a designated Alcohol Rehabilitation Program which must be completed through Addiction Services at Capital Health in Halifax. When you call the number for the “Driving While Impaired or Interlock Program” at Capital Health in Halifax (902-424-8866, option # 3) you will get an answering machine prompting you to leave your name and telephone number. Recently people who have been applying to participate in the Alcohol Rehabilitation Program have been told that they could only get into the program three or four months down the road. The net effect is that the ninety day license suspension becomes a suspension of six months or longer because of the waiting list for the Alcohol Rehabilitation Program. This is a very severe additional punishment for someone who has not yet been convicted of any offence and is clearly not the intention of section 279A of the Motor Vehicle Act.

At Singleton & Associates when a client is facing an impaired driving related criminal offence, we advise that they should immediately apply to participate in the Alcohol Rehabilitation Program given the wait list at Addiction Services. In other words, you make the application at the beginning of the ninety day license suspension.

The same problem awaits anyone who has been convicted of impaired driving or a related criminal offence and receives a one year driving suspension under the Criminal Code when they go to Service Nova Scotia to attempt to get their license back. If they have not already completed the Alcohol Rehabilitation Program through Addiction Services at Capital Health they will be told that they have to apply to the program and complete it before they can get their license back. They have to participate in the same program and the wait list is three months or longer, which results in the driving suspension of one year imposed by the Court becoming a driving suspension of fifteen months or longer. Again, our advice is to make your application to participate in the Alcohol Rehabilitation Program at the beginning of your suspension.

One would think, in the interest of fairness, that the Alcohol Rehabilitation Program required by the Registry of Motor Vehicles would be readily available especially when every applicant who does the course is paying a fee of hundred of dollars to fund the program. Setting up such a rehabilitation program in a manner which has the effect of extending the license suspension is unjust and should not be tolerated in a democracy which cherishes the rule of law. Yet it is unlikely that anything will be done to correct this injustice, given the existence of well financed lobby groups such as MADD (Mothers Against Drunk Driving).