Consumption of alcohol or drug not intentional
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.
Anyone charged with a criminal offence has the right to pursue Every Defence including the defence of Provocation. An Accused may advance the defence that they committed the offence alleged as the result of an act so provocative that it had the effect of depriving the Accused of the ability to control their behaviour. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Second-Degree Murder. The Accused and the deceased had a history of physical fights. At trial, the Accused argued that the jury should be instructed to consider the defence of Provocation. This would require the jury to take into account the Accused’s “state of mind, including alcohol consumption, mental disorder, rage, fear, and [the deceased’s] provoking or threatening words or conduct.” The trial judge found that there was no air of reality to the defence and refused to instruct the jury on Provocation which if accepted, could have resulted in an acquittal or conviction of a lesser charge such as Manslaughter. The Accused testified he observed the deceased threatening and/or stabbing the deceased’s domestic partner. The deceased was armed with two kitchen knives. The Accused confronted the deceased, took control of one of the knives and stabbed the deceased 22 times. The Accused further testified that during the course of the struggle over the knives, the deceased stated he “was going to fucking kill me”. The Court of Appeal for Ontario ordered a new trial.
Every Accused may advance the defence that they committed the offence alleged under Duress. This means that the offence was committed involuntarily rather than intentionally. In this case, the Accused was charged with Trafficking and Breach of Probation for smuggling drugs into the Central East Correctional Centre in Lindsay, Ontario. At trial, the Accused argued that he was forced into committing the offence because of threats made against him and his brother by “Big Newf”. The Accused was a seasoned inmate while it was his brother’s first time in custody. The trial judge found that there was an “air of reality to the defence of duress and that the Crown had failed to prove beyond a reasonable doubt that the defence did not apply”. The Accused was acquitted of all charges.
Every Accused charged with an offence may put forward the defence that they were not present at the time and place the crime is alleged to have occurred. Alibi is Latin for elsewhere. The alibi defence does not need to be disclosed at the time of arrest but the details of the alibi must be provided to the prosecution with enough time for them to investigate prior to trial. If an Accused fails to give sufficient notice of their alibi, the judge or jury “may draw an adverse inference when weighing the alibi evidence”. In this case, the Accused mentioned a possible alibi defence on the first day of trial and provided details of the alibi to the Crown Attorney on the following day. The Accused’s brother testified that the Accused was with him at the time of the offence. The judge gave the alibi evidence no weight because of the late notice and for being incredulous.
Every Accused charged with an offence may present evidence that the offence was committed in self-defence and/or the defence of others. Persons who themselves are the target of violence or the threat of violence may use reasonable force to defend themselves. Likewise, a person may use reasonable force in the defence of another party. In this case, a fight ensued wherein the complainant was armed with a machete and a knife while the Accused wielded a hammer. At some point the Accused struck the complainant’s hand with the machete. A new trial was ordered on appeal after the trial judge failed to instruct the jury to consider self-defence and/or in the defence of a third-party. The test for if a defence should be left with the jury, ie. whether there is an “air of reality” to the proposed defence, is three-fold. Is there evidence on which a jury could reasonably find that each of the three criteria of self-defence and/or defence of others were not disproven beyond a reasonable doubt: (a) could a jury reasonably conclude that the Accused believed on reasonable grounds that force or threat of force was being used against them or someone else; (b) could a jury reasonably conclude that the subjective purpose of the defensive act was for the Accused to protect themselves or others; and (c) the reasonableness of the force used. https://www.canlii.org/en/on/onca/doc/2020/2020onca259/2020onca259.html
Every Accused charged with an offence may present evidence in their defence that another person committed that offence instead of them. An alternative suspect would be a co-accused or someone who is already involved in the case. Third-party suspects are people who have not come to the attention of the police, Crown Attorney or court. The evidence offered may be direct, circumstantial or a combination of both. Direct evidence might be that the Accused observed the alternate suspect or third party suspect commit the offence. An example of circumstantial evidence is that the alternate suspect or third party suspect has an extensive criminal record for committing the same kind of offence and/or had recently threaten to commit the offence. In order for the judge or jury to consider an alternative suspect or third party suspect defence the evidence must have an “air of reality” – this means it must be possible that the evidence is true. CanLII Link Defence – Alternate Suspect – Third Party Suspect – Disposition or Propensity to Commit Offence
The Accused was charged with drinking and driving as well as aggravated assault and property damage. At trial, the Accused testified that she drove the vehicle while intoxicated out of necessity. That is, in order to escape circumstances in which she feared for her safety. The Crown Attorney’s questioning of the Accused at trial about why she did not tell the arresting officers about the necessity conflicted with the Accused’s right to silence. A new trial was ordered. CanLII Record