by admin | Nov 29, 2019 | Blog
The Alberta Administrative License Suspension (AALS) applies to you and your license if you have been pulled over for Driving Under the Influence (DUI) and you:
- were found to be in violation of the federal legal limits for alcohol, cannabis or a combination of both,
- were found to have consumed illegal drugs,
- or you refused to provide a breath/fluid sample to a police officer
What does an impaired driving mean for my license immediately?
If it is your first offence, you are subject to an immediate 90-day, no-driving license suspension. After this period has passed, you may apply to drive under a suspended license for a year with the Ignition Interlock Program. If you choose not to participate in the program, you will be suspended for a full year plus the initial 90 days with no ability to drive legally.
Can I get my license back prior to my court date?
The 90-day suspension does not provide exceptions except by successful appeal. Since most court dates are scheduled within the first month after a DUI, you will not be able to get your license back prior to your court date in most circumstances. If you file an appeal – which is possible up to 30 days from the offence date – and the Alberta Transportation Safety Board receives and responds to your appeal, it would be possible to retrieve your license before your first court date, if they accept your appeal; however, given existing processing times, this is very unlikely.
How do I file a DUI appeal in Alberta to get my license back?
In order to appeal your license suspension, you must purchase an Application for Hearing from any Alberta registry. You can choose between an oral or written appeal with the former coming at a higher cost than the latter. As noted above, this must be received within 30 days of the offence date. A successful appeal relies on offering evidence of your innocence in the impaired driving-related offence. The Alberta Transportation Board does not consider discussions of hardship due to suspended licensing when processing appeals.
Fees Associated with Appeals
| Oral Appeal Hearing |
$250 |
| Written Appeal Hearing |
$125 |
What is the Ignition Interlock Program and how does it affect my license?
To obtain your license before your trial whether or not an appeal goes through, you can apply to take part in the Ignition Interlock program through any Alberta Registry. The Alberta Transportation Driver Fitness and Monitoring board will receive your application, taking up to 30 days to issue an approval. This program involves the installation of a device on your car to monitor your sobriety while driving for the duration of your year-long suspension. During this time, you are not allowed to drive any other vehicle unless it contains the Ignition Interlock program.
Fees Associated with the Ignition Interlock Program
| Application Fee |
$63
|
| Passenger Vehicle Installation |
$145
|
| Commercial Vehicle Installation |
$245
|
| Reinstatement Fee |
$210
|
| New License Fee |
Check with Registry
|
| Monthly Interlock Device Rental |
$95/month
|
| Device Removal Fee |
$50
|
What happens to my license if I plead guilty or been found guilty?
If it is a first-time offence, there will be a one-year disqualification under the Criminal Code of Canada alongside a provincial license suspension, run concurrently. You can only get your license back by then applying to take part in the Alberta Ignition Interlock Program. You will also be required to take courses with the Alberta Motor Association (AMA) including the AMA Planning Ahead Course and IMPACT Course. There will be a significant gap in time between your conviction and your approval for the program before you receive your license back, with restrictions.
What happens to my license if I am found innocent and win my case?
It is important to note that winning your criminal case does not mean your license is immediately returned to you as AALS continues, despite what happens with Criminal Code charges. In other words, the provincial suspension applies, whether or not you are criminally convicted at trial. The only way to avoid the AALS suspensions (90 days mandatory followed by 1 year) is to file an appeal. It is absolutely essential that you purchase and file the appeal form within the first 30 days of the suspension. This gives you the right to appeal at a later date and you can wait to decide what to do pending your criminal case.
What is the best plan of action for getting my license back?
Hire a criminal defence lawyer right away. At Kolinsky Law, our DUI Lawyers team can assist you with all of the complexities of navigating your DUI criminal case to ensure that you get your license back as soon as possible to limit interruptions to your life and mitigate any damage a DUI could further cause you.
by admin | Nov 25, 2019 | Best Lawyers in Edmonton, Blog, Family Attorney, Family Law Lawyer, Family Lawyer
Meeting with a family lawyer for the first time can be stressful. Many are unsure of what to expect and feel some anxiety because of that. At Kolinsky Law in Edmonton, we strive to make your experience as comfortable and stress-free as possible. Of course, the nature of why clients come into a lawyer’s office is generally and often stressful, but we aim to reduce your stress as much as we can by communicating clearly and creating step-by-step processes to approach your legal matters. As such, we have compiled some recommendations on what you can do to best prepare for your consultation with a Family Law Lawyer.
1. Be Open and Honest
For many people, it is difficult to open up in the first meeting. You have just met the lawyer, and do not know what to expect. It is very important, however, that you give an honest account of your situation and any issues that are sensitive to you or your family. Remember that the consultation is private, and cannot be discussed with others without your permission, except in the case of child endangerment.
2. Bring All Documents
Start by making copies of all the documents you have collected so that your family lawyer will have them for your file. Depending on your case, the documents you might need include:
- Marriage certificate
- Any current or past orders made that are related to the case
- Application to Obtain an Order or to Change an Order
- Prepared Financial Statements
3. At the beginning of your consultation, your lawyer will collect basic information about you and your situation. Your lawyer may want to know:
- Your name, any previous names, address, occupation, annual income, and date of birth,
- Your spouse’s full name, address, occupation, annual income, and date of birth
- Your marital status prior to this relationship (single, widowed, divorced)
- Your partner’s marital status prior to this relationship
- Alberta residency information and other citizenships of both partners
- Information about the relationship, including the date the two of you started to live together, the date of your marriage and the name of the city or town where you got married
- The date of separation
- The full names and birthdates of any children
- The care arrangements and any parenting plans that are presently in place for the children
- Any prenuptial agreements
- Any potential and believed risks, including family violence, abduction, and financial risks like bankruptcy
- Why the relationship ended
4. Your lawyer will want to know your financial information and may ask for:
- The approximate balance of all financial accounts, including savings, RRSP, investment accounts, and the names of the financial institutions holding the accounts,
- All assets
- The amounts of any debts, including credit cards, loans, lines of credits and where they are held
- Information about any stock or bond portfolios,
- Pension plan information
- Real estate owned in Alberta and elsewhere, including address, value, and how ownership is divided.
5. Get Organized, Take Notes and Ask Questions
Throughout the consultation, you may want to write down notes and any questions you may have along the way. Your lawyer may have a lot of information for you and will want to collect many details from you, so this can be the best way to ensure your questions get asked either during the flow of the conversation or after. Sometimes it is most cost-efficient to ask several questions at once. In order for your lawyer to serve you better, you must fully understand your case and the entire legal process.
6. Discuss Costs
Your lawyer will discuss fees during this meeting, and you should be prepared to as well. If you want to discuss payment plans, retainer information, and written fee agreements, the consultation is the time to do so.
7. Read all Documents Carefully Before Signing
Before you sign a document, ask your lawyer to fully explain it to you and then read it thoroughly. Be prepared to spend some time going through documents in-office.
8. Keep your own files
Ask for copies of all documents prepared for your case and build your own file to keep at home.
9. Listen to your lawyer
Finally, always remember that, at Kolinsky Law, your lawyer is looking out for your best interests and the best interests of any children involved. The lawyer’s judgments and decisions are based on legal knowledge and training, as well as extensive experience so it is important to listen to your lawyer and think about what your lawyer asks you to do. We are here for you and what is important to you.
by admin | Nov 25, 2019 | Blog
Reasons for divorce in Alberta are as varied and complicated as each relationship. Every divorcing couple brings individual reasons for the divorce to the negotiation table or the courtroom, but each must claim one of the three legal grounds for divorce under Canadian law. The three grounds for divorce in Alberta are cruelty, adultery, and separation.
1. Cruelty
Is defined as occurring when one spouse inflicts mental or physical cruelty upon the other to the point that they can no longer live together. Cruelty can include violence, drunkenness, constant verbal abuse, or excessive drug use. Cruelty only has to occur once to be grounds for divorce, but this ground does require evidence. Incompatible temperaments or occasional episodes of unkindness do not amount to cruelty, but constant name-calling or other forms of verbal abuse may be considered cruelty.
Although it is possible to be divorced without being separated for one year due to cruelty, unless the other spouse admits to cruelty, you will have to have a trial on the issue and it will take more than one year to deal with the issue. Also, if you condone the cruelty, such as by continuing to live with your spouse, the court may refuse to grant you a divorce on this ground. For most people, it is not practical to rely on this ground for divorce.
2. Adultery
Adultery is when one spouse has sex with another person while the marriage exists. The applicant cannot have condoned the affair, for example in the context of an open marriage, and must provide evidence to support the claim than adultery occurred. In Alberta, there is a standard form affidavit that the cheating partner can sign to admit to adultery. The spouse who had the affair cannot file for divorce on grounds of adultery, and couples cannot jointly apply for a divorce on grounds of adultery.
3. Separation
Separation is the most commonly used grounds for divorce. To become divorced on grounds of separation, the spouses must live separately and apart for at least one year. The reason for the separation does not matter. It is easier to prove separation if each person lives in a separate home, but it is possible to be considered separate and apart while living under the same roof, as long as each person is living independently. For example, cooking and eating separately, sleeping in separate rooms, and not attending social events together.
You should know that you can bring an action for divorce as soon as you are separated. However, your divorce cannot be finalized until the one year period of separation has been completed. Also note that absent special circumstances, all issues relating to the custody and support of children must be dealt with, either by agreement or trial, before the court will grant you a divorce, even though you have been separated for over one year.
Can I get a no-fault divorce in Canada?
Canada has a no-fault divorce. That means that the partner responsible for the breakdown in the marriage is not taken into consideration when determining property division or rights and responsibilities related to childcare and support. The Canadian legal system is not interested in placing blame in cases of divorce, so it is more important to protect your own legal rights than to prove your ex-spouse’s responsibility for the end of the marriage.
The only place where fault plays a role in Alberta divorce law is if you are seeking a divorce on grounds of cruelty or adultery. Unlike separation, cruelty and adultery grounds do not require a year-long period of separation. However, they do require proof that cruelty or adultery took place.
Once the divorce is granted on any grounds, however, the fault for the divorce will not factor into the court’s decision regarding custody or property division. For example, a cheating spouse may be at fault if they are divorced on grounds of adultery, but they will not necessarily lose custody of their children because of that.
Do I have to be a citizen to get divorced in Canada?
In most cases, you have to be a resident of Canada to get divorced here, but you do not have to be a Canadian citizen. You can get divorced in Alberta if you were married in another province, but one or both spouses must live in Alberta for at least a year to get a divorce here.
There is an exception to the Canadian residency requirement if the couple were married in Canada and cannot undo the marriage in the country they live in because that country does not recognize their marriage.
Divorce is just part of the process of ending a marriage
In strict legal terms “divorce” is just the legal ending of a marriage and doesn’t deal with issues of property division, custody, and child or spousal support. Even in the most amicable divorces, coming to a separation agreement is a challenging and complicated process — both legally and emotionally. Whether a divorce is amicable or contentious, whether you have many shared assets and children, or not, it is important to consult with an experienced family lawyer before filing for divorce in Alberta.
If you are considering divorce, consult with a Kolinsky Law experienced family lawyer in Edmonton. We will help you understand your options and the benefits and challenges of pursuing the right grounds for your case, and ensure you get the separation agreement you deserve.
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.
