by admin | Aug 7, 2019 | Uncategorized
The Canadian Controlled Drugs and Substances Act states that no one shall possess a substance that is listed in the Act. The Act organizes a large variety of banned substances into different schedules and includes opium, heroin, and other opiates, cocaine, PCP, Psilocybin and LSDS, among many others. Some substances are completely banned, while others are listed as only available under certain limited conditions such as a doctor’s prescription or in limited quantities (marijuana). When a person is caught with these controlled substances on their person or in their property, this can result in one of three types of possession charges.
Personal Possession
A charge of possession can be laid when you are caught with the drug on you or within your immediate areas, such as in your car or home. This is called personal possession – when an arresting officer believes the drugs found in your possession are for your own consumption. The Crown Prosecutor will then need to prove that, not only did you possess the prohibited drug, but you also knew and intended to possess it.
Constructive Possession
Constructive possession means that you are charged because someone you knew had illegal drugs and you are aware of, consented to, and exercised control over the illicit drug in some way. Even though you did not use the drugs, or even physically possess the drug, because you were aware of them, you may be charged with a possession offence. For example, if you allow a friend in your car and you are aware they have drugs on them, you may be charged with joint possession. The Crown Prosecutor will assume you had possession of the drugs, simply because you could have refused your friend entry into your vehicle if you didn’t want to be in possession of the drugs.
Possession for the Purpose of Trafficking
Possession for the purpose of trafficking is a lot more serious. This charge is laid when you are found carrying an amount of drugs that is considered too much for personal use and has equipment associated with the distribution or sale of illicit drugs, like weigh scales. The court must prove that you trafficked or offered to traffic the prohibited drug. A trafficking charge is even more severe, and if you are caught selling, giving, passing, transporting or delivering drugs or a prescription for drugs, you could be charged in this category.
Penalties
The Controlled Drugs and Substances Act provides penalties for personal possession that vary with the type of drug and which drug schedule the substance is categorized in, as well as the amount of drug possessed. This is because of the perceived harm that a particular drug may have on society – some drugs are much more harmful than others and have repercussions accordingly. Drugs in Schedule I can range from a monetary fine to 7 years in prison for first offences. If you are found with drugs belonging to Schedule II, penalties range from a monetary fine to 5 years in prison. Schedule III drugs can bring you a maximum sentence of 3 years.
In most cases, the Crown has the option of proceeding by indictment or by summary conviction. Indictable offences carry larger maximum penalties. Penalties for possession for the purposes of trafficking are more serious. As outlined above, the severity of the sentence can depend on the drug type and amount. The sentence can range from a fine and/or 18 months in prison to life imprisonment and can depend on aggravating factors, such as involvement in a criminal organization or possessing drugs near areas that children frequent.
Defence
One of the most common defences in drug possession charges is an argument that the accused’s Charter of Rights were violated during the investigation of the crime, and that the violation is more severe than the charge of possession itself. Other possession charges have been defended by introducing doubt about the knowledge or control that the accused had over the drugs.
If you have been charged with a drug offence, you should consult with a lawyer immediately. At Kolinsky Law, we are highly knowledgeable and skilled in the area of drug possession charges.
by admin | Jun 19, 2019 | Blog
The Criminal Code of Canada defines Sexual Assault as an assault which is committed in circumstances that are sexual in nature and result in the violation of the sexual integrity of the victim. “Assault” is defined as the intentional application of force without the victim’s consent. Vaginal, anal, and oral penetration, in addition to sexual touching, are within the scope of sexual assault offences.
The Criminal Code establishes three categories of sexual assault:
- The first can be a summary conviction that carries a maximum sentence of 18 months in prison or a $2000 fine (or both), or it can be an indictment, which carries a maximum sentence of ten years imprisonment
- The next level of sexual assault carries a maximum penalty of 14 years imprisonment and can be laid if weapons, threats, bodily harm, or multiple perpetrators are involved
- The third level is aggravated sexual assault, which involves seriously harming the victim, and carries a maximum sentence of life imprisonment
Statistically, rates of sexual assault in Canada remain stable. Although sexual assault can be committed by women as well as men, the majority of victims are women. Over half of reported cases involve a perpetrator and victim who know each other.
Important Considerations
In most sexual assault cases, a verbal accusation, and not necessarily physical evidence, is all that is required to bring charges against an accused.
To determine whether an assault is sexual, the courts will look at all the circumstances, including words, gestures or threats used, whether the motive was sexual gratification, the nature of the contact, whether the accused tried to hide it, and what parts of the body were involved. In order to prove a sexual assault occurred, there needs to be proof of intention to touch, and lack of consent, expressed through the words or actions (or lack thereof) of the complainant.
The main issue to determine is whether or not the victim consented to the act. Consent is an affirmative and ongoing agreement. Implied consent and mistaken belief of consent do not exist, meaning one cannot assume consent through the other’s inaction. Further, the accused must prove they took reasonable steps to determine consent. Consent is not valid if it has been obtained by use of force, threat or fear of force, fraud, or if obtained by a person in a position of authority.
Legal Defenses
Only a minority of Canadian sexual assault cases result in a guilty verdict. Here are the most common defenses used:
Consent
As stated above, consent is a very large area of consideration. A thorough examination of consent is required to determine if it occurred at any point in the interaction. It is asked if a reasonable person in that same situation, who was aware of the circumstances, would have taken further action to verify consent If not, the defense of honest belief applies.
Challenging the Complainant’s Testimony
Another large area of consideration is the testimony and credibility of the complainant. Canada has laws in place that reduce the defendant’s ability to bring up the sexual history of the complainant in order to challenge their credibility. Despite this, the claimant’s credibility will still likely be challenged within the boundaries of the Rape Shield Law.
The preliminary hearing is very important as the complainant’s testimony can allow for inconsistencies to be investigated, for the complainant’s credibility to be questioned, and for a strong cross examination to be built.
Motive
The claimant’s motive for making an accusation can be an area of defense. An example of having motive to claim sexual assault can include attempting to gain an advantage in a divorce or child custody case.
Mistaken Identity
If the alleged sexual assault happened in darkness, or if the complainant cannot fully identify their attacker, the possibility of mistaken identity occurring exists and can be a viable defense.
The Accused’s Alibi
Proof of the location of the accused at the time of the assault can be introduced as support for their alibi. Videotape evidence and witness testimonies to the alibi are largely important to support this defense.
Violation of Charter Rights
The actions of the police during arrest and arraignment will be evaluated. If the police officers made any errors to proper protocol, this could be grounds for dismissal of charges. Improper protocol may include: encouraging self-incriminating statements (this can be argued to be a violation of your Charter rights), threats or lies, illegal searches of property or person, or not informing you of your right to counsel before questioning.
Reduction in Sentence
If it comes down to it, an argument for minimum penalties will be made in order to avoid or reduce jail time, particularly in the case of one of the lesser sexual assault charges.
by admin | May 24, 2019 | Best Lawyers in Edmonton, Blog, DUI, Impaired Driving Lawyers
You’ve spent the evening catching up with old friends. You socialized over a nice dinner and had a few drinks as the night wore on. Unfortunately, you made the choice to drive home and along the way you were stopped by police and tested for alcohol and drug impairment. You’ve been charged with impaired driving under the Criminal Code of Canada. What happens next? Here’s what you need to know:
Driving under the influence is against the law in Canada. DUI is defined as operating any kind of vehicle, vessel, aircraft or railway equipment while impaired by alcohol or drugs. Any amount over 80 mg of alcohol or over 5 ng of Tetrahydrocannabinol (THC) per ml of blood results in immediate consequences. Other drugs and medical conditions can also cause impairment. Canada’s updated law now states that you can be convicted if your blood concentrations are over these numbers within two hours of driving.
Statistics and Trends
Impaired driving is one of the most common criminal offences and is among the leading criminal causes of death in Canada. In 2017, Canadian police reported 69,000 impaired driving incidents. In addition, while alcohol-impaired driving is down over the past several decades, drug-impaired driving is on the rise. Incidences of drug-impaired driving convictions doubled from 2014 to 2015 and in 2017, 3,500 drug-impaired driving incidents were reported. Men, those who play on sports teams, and those who are 20-24 years old (as reported by police) are more likely to engage in impaired driving.
Saliva and Blood Tests
When pulled over, police officers can demand a preliminary breath sample that tests for blood alcohol levels. They can do so without any reasonable suspicion of impairment. In 2009, a provision to the Criminal Code allows police to carry out compulsory roadside testing of drug-impaired drivers. Oral fluid drug screeners are used to detect some drugs in saliva, if an officer reasonably suspects that a driver is impaired by drugs. Reasonable suspicion can include signs like red eyes, twitching, agitation, slurred speech, and odd behaviour. Oral fluid drug screeners serve as a basis for additional blood testing for further confirmation of impairment. Police can also demand a driver submit to a Standard Field Sobriety Test or a Drug Recognition Expert Evaluation.
Penalties and Fines
Federal penalties for DUI (that doesn’t involve harm or death) carry a maximum of a 10-year prison sentence. The minimum penalties range from a minimum mandatory fine of $1000 for first offenses to at least a 120-day prison sentence for third offenses. More severe penalties are reserved for those convicted of impaired driving causing bodily harm or death.
A summary conviction can be given if 2-5 ng/ml of THC is measured in the blood. Other substances, like ketamine, PCP, cocaine, and methamphetamine can be detected and carry a charge if they are detected within 2 hours of driving.
Individual provinces within Canada have their own sanctions over and above the federal laws. For example, in Alberta, those who are suspected of being impaired by alcohol or drugs while driving may face a 24-hour license suspension and those who have a blood alcohol level of 0.05 to under 0.08 can face an immediate suspension of longer duration, and these sanctions fall under the Traffic Safety Act.
Issues and Challenges
The recent changes to Canada’s impaired driving laws have some questioning whether it fits within Canada’s constitution. The changes are said to be too vague, and those who use medicinal cannabis, in particular, may be subject to unjust sanctions if trace amounts of THC are found in roadside saliva tests. THC can remain in small amounts within the body up to a week (or more) after consuming it, and therefore regular cannabis users may test positive, despite not using it hours or days prior to driving.
In addition, saliva tests are found to be subject to false-positive results. One law firm has discovered that poppy seed cake can cause a saliva test to show positive for opiates, consuming coca tea can show that cocaine is in one’s body, and CBD, a chemical within cannabis can show the same positive results on saliva tests even when isolated from and used without THC.
Plan of Action
The charges (and the penalties that come with them) are not something to take lightly. If you’ve been charged with impaired driving and are now facing significant penalties, the help of an expert DUI lawyer in Edmonton is the best course of action to take next. Issues within Canada’s DUI laws may leave room for challenges, questions, and defenses, and Kolinsky Law is best equipped to deal with and navigate these issues in a legal setting.
by admin | Mar 27, 2019 | Blog
Child custody is one of the most contentious parts of a divorce agreement. Divorcing parents must make a shift in mindset when they move from dividing assets to negotiating child custody. Emotions must be set aside in order to make a decision based on the child’s best interests.
Types of custody:
Divorce does not have to mean sole custody for one parent and full loss for another, or even a rigid 50/50 split. Custody agreements come in many forms that balance the abilities and resources of each parent to build outcome that’s in the best interests of the child.
There are two types of custody: physical and legal. A parent with physical custody takes care of the child’s day to day needs and the child usually lives with them. A parent with legal custody has authority in making major decisions about the child’s life such as education, healthcare and religious upbringing. Different types of custody agreements involve sharing both physical and legal custody in different ways.
● Joint custody: The child lives primarily with one parent and parents share legal custody. There is usually a rotating schedule for physical custody. Alberta courts usually award joint custody while seeking to maximize the role of each parent in the child’s life.
● Shared custody: The child lives roughly equally with each parent (at least 40% of the time with each) and legal custody may or may not be shared in different ways.
● Split custody: Siblings are split between parents. Parents may or may not share legal custody of all children, and may or may not rotate physical custody.
● Sole custody: One parent has full legal and physical custody.
How the courts decide custody:
In a custody case, the courts examine three factors:
● Any pre-existing arrangement between the parents
● Whether one parent works full time or not
● Which parent is the primary caregiver
The courts will also consider factors such as:
● parent-child relationships
● parenting abilities
● each parent’s mental, physical and emotional health
● parent and child schedules
● support systems in communities each of the parents live in
● sibling relationships and issues
● the child’s wishes, if they are over 12
When considering all factors involved, the courts will make a decision based on the best interests of the child. Courts typically grant primary custody to the primary caregiver before the divorce, which is often the mother. They also consider how much time a parent can give to a child, therefore how much each parent works will be balanced against their ability to support the child financially and emotionally.
Shared custody is often preferred if one parent is away for extended periods of time, if one parent is less financially stable, or if one parent is ill, injured or otherwise less able to care for a child.
How to get full custody of my child:
Going from being a full-time parent to a shared custody arrangement can be difficult. You may want to win sole custody, but it is important to prioritize your child’s best interests. Consider your time, resources and relationship to your child from the objective perspective of the court. How demanding is your work schedule? Do you travel frequently? Does the child need both parents actively involved in their life, or will they be more secure in a sole custody arrangement? Are you able and willing to make the changes necessary to become a full-time single parent?
Courts rarely cut off contact between a child and a parent, unless it is in the best interests of the child. Fathers tend to have more difficulty winning full or primary custody than mothers. This is not because the courts discriminate against fathers, but because they favour the primary caregiver who is usually the mother. A mother can lose custody of her child if there are extenuating circumstances that reflect on her abilities to parent, such as allegations of abuse, neglect or substance abuse. Adultery and other marital offenses are not sufficient to cause to deny custody.
A father can win a child custody case when the mother is the primary caregiver by demonstrating commitment, ability and willingness to make the life changes needed to become a full or part-time single parent. Invest time in building a strong relationship with your child, make your home ready for a child to live in, and attend and show interest in school and extra-curricular events. Always be respectful of your co-parent and pay any ordered child support. Keep records of your visitations and develop a plan for how you will support and care for your child so you can demonstrate you are prepared for sole or primary custody.
How does child support work with 50/50 custody?
If you win shared custody or another variety of joint custody, you may still have to pay child support to your co-parent. However, because each parent is assumed to be paying for the child’s ordinary expenses, the Child Support Guidelines say that this may be less than the table amount. First, the table amount for each parent is determined based on gross annual income, and the smaller amount is subtracted from the larger amount. The remaining amount is called the “set off.” The parent with the larger table amount pays the set off to the parent with the lesser amount. Other factors such as whether one parent lives with a partner who shares expenses or has other dependents may also be considered.
If you want to know how to get custody of a child in Edmonton, the advice of an experienced family lawyer is invaluable. We will help you assess your situation and understand all options to secure the best custody agreement for your family.
by admin | Mar 12, 2019 | Blog, Divorce, Divorce and Separation, Divorce Attorney, Divorce Lawyer, Divorce Mediation
Making the decision whether to file for divorce is difficult and often comes after a long period of compromise, personal reflection and struggling to “make it work.” However, if you feel ending your marriage or common-law relationship is your only option, it is important not to rush into divorce proceedings as even the most amicable divorce can have serious personal and financial consequences. Realizing your marriage may end can be extremely emotional, but there are five practical things you should consider before filing for divorce.
1. Talk to a Counsellor
Before ending a marriage, it is always worth talking to a couples counsellor or an individual therapist. If counselling cannot resolve the issues in your relationship, it may be a sign divorce is the right option. However, therapy should not stop with the decision to end the marriage. A qualified counsellor can also help as you go through the steps of ending your marriage. Divorce counselling can help you identify what went wrong, develop coping strategies and ultimately move forward post-divorce.
2. Talk to a Lawyer
If divorce seems inevitable, talk to a lawyer. It is essential to understand your legal options and how your actions in the lead up to separation may affect the outcome of the divorce. You will need to identify your grounds for divorce, ensure you fulfill all requirements, understand the separation and waiting period, and be aware of the implications of a contested divorce if your spouse does not agree to an uncontested divorce. And that is all before getting into the more complex matters of splitting assets and determining child custody.
A great divorce attorney will do more than tell you to get a divorce. They will work hard for your interests through the entire process from filing for divorce to arriving at a separation agreement.
3. Set a Goal for the Divorce
How do you want your life after marriage to look? Determine what you want from your divorce, whether it is a clean break, an amicable co-parenting relationship or to hang on to property and assets you are entitled to. Identify with your lawyer what your priorities are and develop a strategy to achieve your goals.
If you still are on speaking terms with your spouse, trying to find a compromise that meets each party’s most important priorities may be worthwhile.
4. Safeguard Your Assets
Take steps to safeguard your assets as soon as possible. You may want to do this before asking your spouse for a divorce. It is an unfortunate reality that in the emotionally charged period at the start of a breakup some people lash out by depleting joint bank accounts, lines of credit and credit cards. Make sure you have your own individual accounts to manage your finances and where possible freeze or close any shared accounts.
Do not move out until you have spoken to a lawyer and begun divorce proceedings. Leaving your home without good reason may result in loss of possession of the home or custody of your children. You may also not be able to return to the home until the court divides your property. If, however, your spouse is violent you should take all steps necessary to protect yourself and your children, including leaving the home.
5. Take Care of Your Children
If you have children, they should be your first concern in a divorce. Try to maintain their sense of security and continuity by working with your spouse to establish pick-up and drop-off schedules, and shared responsibility for activities and appointments as soon as possible. Prioritize making time for your children. Avoid letting the end of your marriage affect how you interact with your spouse as a co-parent and don’t try to come between them and your children.
Divorce can be a long and emotionally draining process. By taking these five practical steps to prepare yourself, you can ensure a smoother divorce process and a better outcome for yourself and your family.
