Survive Working with a Barrister in Canada: 4 Things You Need to Know

In Canada, barristers are simply lawyers who go to court. Unlike in England, they're part of the same law societies as solicitors. While we've never worn white horsehair wigs unlike many other commonwealth jurisdictions - I've heard they were too difficult to obtain in Canadian colonial times - we do sometimes wear black robes that have a habit of getting caught on door handles as we attempt to swish imperiously in and out of rooms. 

Your life working with a barrister can be productive, or it can be miserable. In this post I'll explain to you the four steps you need to follow to make the relationship the former, and not the latter.

It doesn't matter if you're being dragged kicking and screaming to court in response to a criminal charge, are embroiled in a small claims or Superior Court of Justice civil suit, are trapped in family law proceedings, or maybe you need to initiate a court application to clarify your rights over real estate or the interpretation of a will. Unless you're planning to do the case yourself - and in over two decades of practice I've seen few positive outcomes for those who try the DIY route - you'll be stuck working with a barrister.

Step One - Be Sure You Need a Barrister

Clarify at the start of the relationship why you need the barrister. Many people come to see me thinking they might benefit from a lawyer, but aren't quite sure what the lawyer can do for them. I always tell my clients that a little legal advice can be a bargain. But going to court unless you absolutely have to go is never a bargain. 

When you do speak to the barrister, explore upfront exactly how he or she might be able to help you. Don't accept vague answers from a barrister about his or her plans to help you. Instead, push the barrister to explain step by step what his or her plan is for you. 

You might not really need a barrister. And it could be worth a free five minute phone call or a one hour paid consultation in order to find that out. Even if you pay up front for a bit of advice on your matter, possibly including asking the barrister to write you a formal legal opinion about the likely prospects of success of your case in court, it will still be way, way cheaper than spending money on court legal fees once litigation has started.

You might need a psychologist or family therapist or credit counsellor or accountant more than a barrister. If you have a neighbour dispute, you should weigh the expense of a real estate agent versus a barrister. Family counsellors for marriage troubles are definitely cheaper than family lawyers. I'm not suggesting other professionals can definitely fix your problems, but they might provide a more graceful exit to them than would litigation.

However, sometimes going to court will be the only option. 

Step Two - Clarify the True Cost of the Barrister

Demand up front from the barrister a fair assessment of fees for your matter, and in turn be prepared and realistic about your ability to fund those fees. Push the barrister for a block flat fee if possible, even if it's only for specific stages of a case, as that will best control and predict your costs. 

If fees need to be hourly, make the barrister explain why. And don't make the mistake of thinking a lower hourly rate will necessarily lead to a lower cost of the case, since a cheaper by the hour barrister might have less experience, and consequently wind up spending more time on your case. 

Also don't be shocked by barrister fees. Many solicitors actually take home more money than barristers, but people don't complain about their seemingly "smaller" fees which are based on volume and where much of the work is being done by trained clerks. By comparison, barristers will be doing most of your work themselves, and court cases tend to suck up an enormous amount of lawyer time as compared to a simple real estate transaction which a lawyer might only personally spend one or two hours working on. 

If you can't afford the fees, tell that to the barrister upfront. There may be less expensive ways of proceeding available, even if they're not the preferred ways of proceeding. Don't mislead yourself about being able to afford a potentially very costly case because you think it will settle. You always need to plan for the worst case scenario when it comes to litigation. 

Regardless of whether the fees are block or hourly, don't let the barrister be vague about how extras like "disbursements" can drive up those fees. Establish at the start if there are likely to be significant disbursements like transcript costs, expert witness fees, or printing and binding fees. 

A rule of thumb is that criminal cases tend to be cheaper than civil cases - even small claims - because they simply take up less barrister in-court and preparation time, settle at earlier stages, and involve fewer pre-trial proceedings. You'll usually be able to get a block fee from a barrister for a criminal case, but civil cases will usually be hourly because they're less predictable. 

Costs of appeals for civil or criminal cases depend upon the complexity of the trial; a four week trial with 500 exhibits is going to cost more to appeal than a one day trial with five exhibits. But you may be able to get a block fee quote for an appeal - all the appeals I take on are done as block fees. 

Step Three - Work Collaboratively with the Barrister

Press the barrister from the start of the relationship on what he or she needs from you. You giving the barrister appropriate help from the get go will make the relationship far more successful and cheaper for you. 

Does the barrister want a factual chronology? A list of witnesses together with their addresses and phone numbers? Copies of possible court exhibits, including photos? You won't be able to anticipate all barrister needs, so ask. If you're having trouble getting direct answers on needs from the barrister, press the barrister's law clerks for what kinds of things they usually collect for cases. You need to work collaboratively with the barrister. 

Your physical health is a collaborative endeavour with your family doctor. Same with your legal health where your barrister is concerned. 

If the barrister seems completely disinterested in your opinions, and your collaboration, find another barrister. 

Don't make the mistake of thinking that your only obligation in working with a barrister is paying the bills. Really your barrister is more of an interpreter, and negotiator and intermediary between you and the court; your barrister isn't your replacement or doppelgänger. Making your barrister relationship the most result and cost effective possible requires your full participation in the case.

Step Four - Continuously Evaluate What Would be an Acceptable End Result

Evaluate in advance of retaining the barrister, and continuously reevaluate during the course of your barrister-client relationship, what would amount to an acceptable court result or end game for you. Don't enter the relationship with vague notions of "total victory" as even if your barrister gets you to that point, you might might no longer be capable of recognizing what victory looks like after you've been in the court process for too long. So be realistic in your court outcome expectations, and continually examine the options you're presented with for getting off the litigation treadmill. 

I'm not saying you can't aim higher than the minimum acceptable result, just that you need to consider your options from the start. It might take you weeks of careful reflection to figure out what result you really want. You'll have the necessary time to reflect if you consider things from day one of the barrister-client process. You might only have 24 hours to decide on a deal once a firm offer is made. If you really didn't "do it" in a criminal case, then make clear up front to your barrister that the only acceptable result to you is full exoneration. That way he won't waste his time trying to negotiate a deal for you, but rather will first try to convince the Crown to drop the charges, and second will simply prepare to take your case to trial. 

In civil cases, an acceptable result might be more intangible. One crucial factor you must consider is that you don't want to spend more on barrister fees than you save in settlement payments. As much as you don't want to give the other side a penny of your hard earned money, a good barrister will be frank with you about when your legal costs will outweigh your potential civil windfall.

For instance, if you hire a lawyer to sue someone in small claims court for $5000 in damages, get a judgment for $4000, get $750 in court costs, and pay $5000 in legal fees, and you'll be $250 poorer than when you started. But get a judgment for $20,000 with $3000 in court costs, and you'll be $18,000 ahead on that same $5000 amount of legal fees. So for civil matters, you need to be really careful in evaluating how much your case is worth - regardless of whether you're the plaintiff or defendant. 

If any barrister you're considering retaining seems reluctant or evasive to ballpark what kind of legal fees you might be facing at different stages of your case, and will only reveal his or her hourly rate, find another barrister.

But there are things worth fighting for, even if fees climb. For the control and survival of your business. To be able to continue to practice your profession. For the custody of your children. Just be realistic about what result you can live with, based on asking your barrister about the likely outcomes. But because your barrister may have hundreds of clients, don't expect him to be able to pry out of you what you really want, and to read your mind, if you don't tell him. 

HOW TO CLAIM CANADIAN CITIZENSHIP BY BIRTH OR DESCENT - A GUIDE ESPECIALLY OF INTEREST TO AMERICANS

In 2017 I’ve seen a huge uptake in potential client enquiries, especially from Americans, about confirming their proof of Canadian citizenship.

Canada has one of the world’s more liberal citizenship regimes, where you can be eligible for Canadian citizenship and acquire proof of that citizenship primarily by way of: (1) location of birth in Canada; (2) at least one parent being a Canadian citizen; or (3) by a naturalization application process after being accepted as a permanent resident.

THE SIMPLICITY OF CANADIAN BIRTHRIGHT CITIZENSHIP - JUS SOLI (RIGHT OF SOIL)

Lawyers love Latin, and citizenship law is no exception. Jus Soli is the technical legal term for citizenship acquired through birth. Only about 30 countries in the world - almost all of which are in North and South America - unconditionally grant citizenship to anyone born within their territories.

Lex Soli is the term used for the body of law governing if and how Jus Soli applies. Canada does have a narrow exception to Jus Soli in that if neither parent is a Canadian citizen or permanent resident, and either was employed at the time of birth by a foreign government or international organization in Canada, then you’re not entitled to Canadian citizenship even if you’re born in Canada. This is more than a theoretical exception, as Canadian-born Deepan Budlakoti found out when he was effectively rendered stateless through this process. 

A certified copy of your birth certificate from a Canadian province or territory is the main document you’ll need to submit with your application to claim Canadian Birthright Citizenship.

THE COMPLEXITY OF CANADIAN CITIZENSHIP BY DESCENT - JUS SANGUINIS (RIGHT OF BLOOD)

Citizenship by Descent - also known as Jus Sanguinis for Latin lovers - gets more complicated than Birthright Citizenship. There are several exceptions to Jus Sanguinis in Canada, and not just who you were born to but also your date of birth can be very important.

Generally the Citizenship Act grants Canadian citizenship to those born outside Canada to at least one Canadian parent, but the Act was recently changed to limit that citizenship by descent to one generation, meaning the children of children who so acquired citizenship by decent won’t also become Canadians automatically. Thus you’re a Canadian if one parent was a Canadian, but not if only a grandparent was a Canadian. 

While the “first generation” rule only came into force on 17 April 2009 and is not retroactive, chances are unfortunately slim to none of being able to claim back past that point. There have been lots of tweaks to the Citizenship Act over the years to address injustices inflicted on various classes of people (often women) losing their citizenship, as well as streamlining inconsistent rules saying things like births abroad needed to be registered by a certain age, or those born abroad needed to actually claim their citizenship by a particular age in order to preserve it. But for the most part, the Government of Canada seems to have already done all the cleanup it is going to do in restoring citizenships lost, and there is a worldwide trend towards making citizenship claims more and more challenging (including in many countries even if you were born there).

So basically if you have an ancestor who defended what is now Canada during the War of 1812, but who decided in 1815 that life really was better south of the border, don’t hold your breath over making a claim. And even an ancestor defending Canada during the Great War of 1914 is getting pretty remote.

For proof of citizenship by descent, in addition to a copy of your birth certificate from the country in which you were born listing the names of your Canadian parent(s), you’ll also need proof of at least one of them being Canadian such as their own birth certificates or their citizenship certificates.

You’ll also need certified translations of any documents in languages other than French or English. 

Unlike Birthright Citizenship, Citizenship by Descent can get very complicated. If you’re beyond the first generation born abroad, and a parent didn’t assert a claim before you, it’s unfortunately probably too late for you now even if born prior to 2009. But the only way to find out for sure would be to submit an application to Immigration, Refugees and Citizenship Canada - at a current cost of $75 in government processing fees, it’s a pretty modest investment, with the worst outcome being they say “no.” Here’s the government link: https://www.canada.ca/en/immigration-refugees-citizenship/services/canadian-citizenship/proof-citizenship.html

WHY YOU NEED TO APPLY AS SOON & AS COMPLETELY AS POSSIBLE FOR PROOF OF CANADIAN CITIZENSHIP

Current Government of Canada processing times for proof of citizenship usually range from about five months to a year, depending on the complexity of your application. Even the slightest error in the documents you submit can result in your application being returned and you having to completely restart the process. Thus you should apply as soon and as completely as possible. You’ll find all the required government application forms online, including an estimate calculator for current processing delay times.

Obtaining proof of citizenship is something I tell my clients they can do for themselves. But if success on the first try and in as rapid a means as possible is important to you, consider using an immigration lawyer. Our fees (and the fees of most other lawyers who handle citizenship) aren’t especially high as compared to other kinds of more complicated immigration processes.

Our firm charges $2500 Canadian for the entire citizenship confirmation government process, plus disbursements (which are usually fairly minor). For those born beyond the first generation, because of the unlikelihood of success, we suggest you just try yourself if you really want to find out. But we don’t want to tell you it’s completely impossible, as there can be rare exceptions, and ultimately we’re not the decisions makers, only the Government of Canada can tell you for sure whether you qualify or not.

Gordon S. Campbell has served as legal counsel to the Department of Immigration, Refugees & Citizenship Canada as well as the Canada Border Service Agency, and litigated public law cases as high as the Supreme Court of Canada. He now helps individuals and businesses with their citizenship and immigration needs.

NO FEAR FAMILY LAW: TOP 3 TIPS ON HOW TO PREDICT FAMILY LAW COURT RESULTS

I'm not a fortune teller. I can't predict the future. But I can often predict family law outcomes, because the legal principles are so simple.

That's not true with every area of the law. Some practice areas are terribly complex. But not family law. It's the facts that get complicated - decades long decontructions of relationships - not the law.

"No Fear" Family Law aims to take away the fear of the unknown, and empower clients with knowledge of likley outcomes that usually aren't as bad as they fear. Here are three of my top likely outcome tips.

1. Shared custody - Custody will probably be shared if that is what the parents want, with no child support being payable. There are exceptions, but you may have a major fight on your hands to convince a court to give you an exception because of the fundamental principle that the best interests of the child involve maximizing contact with both parents.

Even where child support is payable, it will be according to a fixed table amount created by the legislature. Plug in numbers of children and parental income, and it spits out a number. Simple. What are known as "special and extraordinary expenses" - dentist, soccer, summer camp - are split as a percentage between the parents according to their respective incomes, even where no child support is being paid.

2. Equal split of property - Matrimonial property will be split evenly, except for property that was brought into the marriage. Again, there are some exceptions, but for long term relationships, splitting things down the middle is the norm since usually most of what couples have was acquired jointly, or at least shared jointly. Owning a business could introduce some complexity to this split, especially where both spouses have involvement in the business.

3. Spousal support depends on income disparity and length of relationship - Spousal support will only be payable where there is significant income disparity, and then only for about 3 years, unless it is a long term relationship in which case lifetime support may be payable, subject to a change of circumstances where the recipient spouse is later earning enough for self-support.

Unlike child support, there’s unfortunately no simple math formula for spousal support. Often about 20 to 25% of the payor’s pretax income is ordered in spousal support, but those payments will be tax deductible in the payor’s hands, and taxable in the recipient’s hands (child support is the opposite: taxed in the payor’s hands and not taxable in the recipient’s hands).

The major challenge in determining a fair level of spousal support is that income must be fairly established, as the claimant may focus on that one year with a very high income in the past, and the payor's income may have fallen dramatically because of the family breakup.

Although you might be hoping for different outcomes than my top 3 predicted family law outcomes, you'll have to fight very, very hard, have very compelling facts, and have considerable legal resources to achieve dramatically different results. But definitely details on how these results are implemented are very important to negotiate or have a court decide upon, and can vary greatly from case to case.

Read More About "No Fear" Family Law.

OVERCOMING CRIMINAL IMMIGRATION INADMISSIBILITY TO CANADA & SECURING YOUR WORK OR PLEASURE TRAVEL OR IMMIGRATION

We all make mistakes. Occasionally, for some of us, a mistake leads to some sort of “conviction.” A conviction could be the consequences of parking too long in a one hour parking zone, exceeding a highway speed limit, getting in a bar fight, shoplifting some sunglasses, up through more serious offences.

I’ve had clients enter Canada dozens of time, only to be told by the Canada Border Services Agency (CBSA) on their 57th arrival after landing at a Canadian airport, or crossing at a land border, that they’re inadmissible due to criminality. They’re put back on the next return flight from where they just arrived, or told to head their vehicles back in the opposite direction and not return. These are clients who might mostly earn their livelihoods in Canada as sales reps, or have close family in Canada. They’re understandably shocked at being refused entry, especially because some of them have been previously welcomed to Canada so many time with open arms. The thing they all share in common is one or more “convictions” somewhere in their pasts, sometimes decades previously, and sometimes for acts that aren’t even considered “criminal” where they come from.

THE LAW

Section 36 of the Immigration and Refugee Protection Act governs criminal inadmissibility, explaining rather cryptically:

A foreign national is inadmissible on grounds of criminality for

(a) having been convicted in Canada of an offence under an Act of Parliament punishable by way of indictment, or of two offences under any Act of Parliament not arising out of a single occurrence;

(b) having been convicted outside Canada of an offence that, if committed in Canada, would constitute an indictable offence under an Act of Parliament, or of two offences not arising out of a single occurrence that, if committed in Canada, would constitute offences under an Act of Parliament;

(c) committing an act outside Canada that is an offence in the place where it was committed and that, if committed in Canada, would constitute an indictable offence under an Act of Parliament; or

(d) committing, on entering Canada, an offence under an Act of Parliament prescribed by regulations.

The problem is that it can be very difficult for those visiting (or moving to) Canada to know: (1) whether the thing(s) they’ve done in the past are caught within the criminal inadmissibility drag net, and (2) even if they are caught up in inadmissibility, can they be considered to be rehabilitated?

One of the most problematic offences is impaired driving (DUI). In some countries, it's considered a regulatory highway traffic offence, and not a criminal offence. And even where it is a criminal offence, a person might not have been formally “convicted” of it. And further confusingly, while DUI is usually prosecuted in Canada as a summary conviction offence, because at the Crown’s election it can also be prosecuted by indictment it means that a single DUI can make you criminally inadmissible.

THE FIX

But there is a fix to all of these problems: criminal rehabilitation. It’s an application process which demonstrates to the Canadian government that because of the passage of time since your conviction, and because of your having stayed out of trouble since that time, you shouldn’t be excluded from Canada. It’s akin to an immigration criminal pardon! I’ve also found that unfortunately sometimes the CBSA makes mistakes, and declares criminally inadmissible people who don’t at all fall within that category, but you may still need a lawyer to correct that mistake.

While there are certainly some immigration procedures that you might try to undertake yourself, I urge you to retain a lawyer to assist with criminal rehabilitation. You might even need two lawyers - one from your home jurisdiction where the offence was committed and one in Canada - to deal with the translation of the foreign conviction into Canadian legal terms. This isn’t always necessary for countries having similar legal systems to that of Canada, like the United States, but your Canadian immigration lawyer can discuss the precise procedure with you depending on your circumstances.

THE PROCESS

Generally the rehabilitation process involves you gathering together your prior conviction information, having criminal record checks done in every jurisdiction you’ve lived for a significant time, and then a Canadian lawyer will present your rehabilitation application to the Canadian government. Some applications are more straight forward than others, depending on the number and severity of prior convictions, and how much time has passed since those convictions. You’ll usually be barred from Canada until your application has been reviewed, so the sooner you undertake the rehabilitation process, the faster you’ll have a chance of reentering Canada.

And don’t wait until you’ve been barred from Canada to start this process. If you have an upcoming visit to Canada, and have prior convictions, consult a Canadian immigration lawyer prior to your visit about whether a criminal rehabilitation application might be necessary. Even if you've been entering Canada repeatedly without a problem, don’t be lulled into a false sense of security as I’ve had clients who haven’t had entry problems for years who suddenly are banned from Canada for a year or more while we sort out the inadmissibility issue. Just because the CBSA hasn’t stopped you yet doesn’t mean that a new officer won’t take a different view of your past, and doesn’t mean that the CBSA won’t sign a new information sharing agreement giving it greater access to foreign criminal background data which might include your name.

Neither the CBSA nor the Department of Immigration, Refugees and Citizenship can give you legal advice on criminal inadmissibility. It’s one of the most complicated areas of immigration law because of the need to compare two different legal systems to see how a conviction in one system might match up with available offences in another system. So I do urge you to consult a lawyer prior to travelling to Canada so that you aren’t frustrated in work, family or tourism trip where you will have invested lots of time, planning and money. I likewise frequently refer Canadians to U.S. immigration lawyers to deal with criminal admissibility when travelling south.

Top 10 Ways to Stop Dead Internal Disputes Within Your Business Before they Arise

Media attention often focuses on business struggles between competitors, like apocalyptic patent litigation between Apple and Samsung. The popular allure of such disputes seems at least in part to be the same as the allure of athletic contests: conducted in public, among relative equals, with the perception that winner takes all.

Less talked about are internal disputes within businesses and their owners, be they two childhood friends who have tossed in some money to open a small restaurant and now can't agree on the menu, three professional dentist partners who disagree over how practice profits should be split, or four large corporations undertaking an oil and gas resource exploration joint venture who can't settle on where to drill. These internal disputes are likely more preventable than the external ones with a bit of early planning, and perhaps a little legal advice. While the type of dispute prevention will vary according to the type of business and the parties involved in the business, there are a few fundamental principles that can help everyone prevent internal disputes from ruining otherwise successful business endeavours.

Tip # 1: Plan for some business dispute DIY prevention at the same time as you plan out how you are going to dominate your market segment with your new business. Dispute prevention works best in reverse. Meaning, figure out in advance the most likely areas of dispute a month, a year or a decade down the road among the owners of your business, and then work backwards to establish contingency mechanisms to resolve at least some of those disputes. Like, what happens if a co-owner wants out before the business is profitable?  

2. Put you business agreement in writing. It doesn't have to be a lengthy document. One hundred pages won't necessarily give you any more certainty than two pages. Seriously. A complex and prolix document may only give partners more language to fight over in the future, and likely won't be well understood at the time it is signed. But the writing is key, otherwise even two people who trust each other implicitly will tend to develop differing recollections of exactly what was agreed upon as time passes after the establishment of the business relationship. I'm not saying every single action needs to be fully documented, but at least be clear on the basics. I see a lot of disputes where very reasonable people who completely trust each other go into business with very different understandings of what has been agreed upon.

3. Be clear on the businesses legal structure. This isn't something you necessarily need a lawyer for; you can probably figure it out from Internet information. But a lot of people don't know how their business is legally established, which can have lots of consequences when it comes to ownership, debt liability, taxes and sharing of business control. Your main options are as a sole proprietor, as a partnership, or as a corporation. But things can get tricky when these three basic forms get combined. Like two people who believe they are each sole proprietors, when in fact the law deems them to be a partnership. Not only small businesses can run into trouble in this area; sometimes large multinational corporations get together to jointly pursue a business opportunity, and wind up in an accidental partnership when in fact they had intended a joint venture.

4. Be clear on who owns what. Putting everything in one party's name, with a verbal understanding that the other parties actually have ownership rights because they are contributing capital to purchase assets, is one of the best ways I can think of to later wind up in court fighting over assets.

5. Be clear on who is contributing to or paying for what. When people get together in informal ways, and start contributing money to get a business going, and later continue contributing money to keep the business going, they often don't divvy up expenses by percentage. One pays the rent. Another pays the electricity. A third pays for the inventory. Although perhaps initially convenient, this way of financing a business becomes difficult to track, and can lead to later disputes over who contributed more or less to the business. 

6. Be clear on how the profits will be utilized or divided. Whether there are any profits, and whether they will be reinvested into the business or taken out to pay the personal expenses of the owners, may quickly become an issue if business partners don't agree on a strategy in advance.

7. Be clear on who is responsible for the debts. Just because you didn't sign a loan guarantee, doesn't mean that you aren't on the hook for any debts of the business.

8. Be clear on the overall purpose of the business. A successful business that starts out manufacturing and wholesaling shoes may not make an easy transition into the electric car design field. Possible, yes. Easy, definitely not. If more than one person controls the business, they will need a common vision. Sometimes putting that vision in writing up front will help remind everyone of business' purpose if vision drift starts to affect performance later on.

9. Be clear on how disputes will be resolved. It's not possible to foresee and address all manner of future business disputes, even in the most complex of written agreements. However, the parties might be able to agree on a few basic points. Like that majority vote of the partners will be decisive on certain issues. That binding arbitration will be used for other issues. Or at least that a courts of a particular jurisdiction will be the place to settle disputes through litigation.

10. Be clear on how the business will be wound up or sold if one of the owners doesn't want to continue with it. People get tired. So do businesses. Sometimes it's better just to call it a day, and start one or more new businesses, rather than continue to fight to save or control an existing business. But every business needs an escape hatch, to avoid the captain(s) and crew becoming trapped in a sinking or fighting ship.

TO BLOW OR NOT TO BLOW, THAT IS THE QUESTION

You’re on your way home, coming back from watching a hockey game at the local sports bar with friends. You’re two blocks from your residence when you make that last right turn only to meet a lineup of vehicles, with blue and red flashing lights in the distance. The police are conducting a RIDE program. Soon after a uniformed officer walks up to your driver’s side window. The officer asks you a few basic questions on your whereabouts this evening. You comply and answer his questions. The officer then informs you that he has reason to suspect that you’ve been drinking and driving and ask you for a breath sample.

Do you have a right to refuse the officer's demand?

Although the officer cannot physically force you to provde a breath sample, refusing to comply with the officer’s demand is an offense, under section 254 of the Criminal Code, with serious consequences. In fact, the penalties are essentially the same as if you had failed the Breathalyzer test. Furthermore, a conviction may affect your livelihood, your ability to travel abroad and will likely increase your insurance rates.

Generally, lawyers will tell their clients provide a breath sample, because it’s usually only after having reviewed the disclosure that a lawyer can determine what types of defence have a reasonable chance of success.

What must the prosecution prove?

When someone refuses to comply with an officer’s demand of a breath sample, the prosecution must prove beyond reasonable doubt the element of actus reus, namely that a reasonable demand was made by the officer and that you failed or refused to provide the required breath sample. The prosecution must also prove the element of mens rea, namely that understood the officers demand and that the refusal was a conscious act.

For many people accused of refusing to provide a breath sample, this may bring feelings of embarrassment, helplessness and guilt, which in return may lead them to plead guilty and just get it over with. Although there is an incentive to pleading guilty early, namely within 90 days of the offense, before doing so, consulting with a criminal lawyer as soon as possible is highly recommended. Drinking and driving offenses are very complex and the defences will vary according to the facts of your case, therefore we welcome you to call for a free initial contact with one of our criminal lawyers.