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[A]  [TOP]

Absolute discharge: if the judge believes that the accused is guilty but doesn't deserve to be punished, they may get an absolute discharge. They don't have to pay a fine or go to jail and one year after the discharge, the conviction on their criminal record is automatically removed. This usually only happens on a first offence.

Accused: the person charged with a crime

Acquittal: the dismissal of a criminal charge – a finding of “not guilty”

Act: a law passed by parliament or the legislature. It is also called a “statute”

Adjournment: postponement of court proceedings, usually at the court’s discretion, postponement of a case to a specified date

Affidavit: a written statement of facts voluntarily made and either sworn or solemnly affirmed before an authorized official

Airbag Control Module: airbags are controlled by a computer called the airbag control module [ACM] generally found under the driver’s seat. It constantly monitors the vehicle sensors and stores this information in a temporary file.

The ACM starts recording only when it wakes-up due to a collision event and its algorithm determines whether to deploy air bags – a deployment event. AMCs record approximately 5 seconds of pre and 5 seconds of post deployment data. The scope of the data depends on the year, manufacturer, make and model of the vehicle. This data is permanently written (locked) to the EEPROM chip and cannot be erased or over-written.

Information that may be obtained includes:

  • Vehicle speed
  • Brake light switch (On/Off?)
  • Engine speed
  • Throttle position.
  • It may also record:
    • Impact speed change or ∆V
    • Seat belt use
    • Airbag deployments
    • Seat belt pre-tensioner deployments.

Allege: to suggest that something that has not yet been proven is in fact true

Appeal: the judicial process by which one party to an action resorts to a superior court to correct what is perceived to be an incorrect determination of the original proceedings.

Appellant: the main party subject to the appeal.

Appearance notice: an order that tells the accused to go to court at a specified time to answer charges that have been laid.

Approved screening device (ASD):  a device used to measure the blood alcohol level of a suspected drunk driver. The roadside screening device is a portable instrument that is kept in many police cars. The device gives an informal measure of a person’s blood alcohol level.  It is not against the law to fail a roadside screening device test, but failing this test will give the officer reasonable and probable grounds to hold a person further and demand that they take a breathalyser test.  These devices are commonly known as roadside testers (Alco-Sur, Intoxilyzer, Alco-Sensor) or simply as an ASD.

Approved screening devices order (Roadside Screening): can be made whenever a police officer reasonably suspects that a person has alcohol in their body and that person has within the preceding three hours operated or had care and control of a motor vehicle. They do not have to believe the person is impaired. This suspicion may come from any physical signs, an irregular driving pattern, or from any statements made.

Evidence of a failed reading is not proof of the level of alcohol in the person’s blood. It is only used to justify a further demand for a sample of breath into an “approved instrument” capable of providing a proper reading of the person’s blood alcohol level. A “fail” result on the roadside breath test will permit an officer to arrest the driver for the offence of over 80. An arrest for over 80 may also be accompanied by an arrest for impaired driving if the driver exhibits clear signs of impairment by the manner they were driving the vehicle or physical observations of the driver under investigation.

Generally, a person does not have the right to contact a lawyer before taking the roadside screening device. The evidence gathered before the Charter right to contact a lawyer, such as screening device test results, roadside coordination tests or admitting you consumed alcohol or drugs, are only useable to provide grounds for the breathalyser demand and are not admissible at trial to prove impairment or “over 80”. 

It is a criminal offence in Canada to refuse an approved screening device demand that has been lawfully made. Refusal to comply with an approved roadside screening device demand can be used by a police officer as part of the reasonable and probable grounds to make a breath demand.

Possible defences to this offence include challenges to the lawfulness of the demand. Sometimes a demand is unlawful because it is not made forthwith or sometimes the device in question is not used forthwith. The demand should be made by the same officer who formed the reasonable suspicion. Lack of an opportunity to speak to counsel prior to the screening device test is not a defence.

Approved instrument: an instrument designed to receive and make an analysis of a sample of the breath of a person in order to measure the concentration of alcohol in the blood of that person. A breath instrument is commonly known as a Breathalyzer.

Only someone qualified to use the breathalyser machine can take the breath sample. The prosecutor must show that a qualified technician operated it properly when taking the samples and analyzing them.

The person will be required to provide at least two samples of breath by blowing into the mouthpiece of a breathalyser machine. The samples must be taken at least 15 minutes apart.

If the test indicates that the person’s blood alcohol content exceeds the legal limit of 80 milligrams of alcohol in one hundred millilitres of blood (80 mg%), the breathalyser technician will complete a certificate of analysis. The certificate will include the results of at least two readings and the times when each was taken. If someone is charged with an “over 80" offence, a copy of this certificate will be given to him or her. It is this certificate that is generally allowed as evidence at trial to prove that the blood alcohol level was over the legal limit.

Approved breath analysis instruments order: an approved instrument demand can be made whenever a police officer believes on reasonable and probable grounds that a person has committed an impaired or over 80 offence within the preceding 3 hours. The approved instrument breath demand should be made by the same officer who formed the reasonable and probable grounds.

The demand must be made right away or as soon as practicable once an officer has reasonable and probable grounds for arrest.  These breath samples must be taken as soon as it is practicable after the demand is made. The test is generally done either at the police station or at a mobile testing station.  .

A person does have the right to speak to a lawyer before taking the breathalyser. The right to contact a lawyer before taking this test is the same whether the person is at a roadside mobile testing station or at the police station.

It is a criminal offence in Canada to refuse an approved instrument demand that has been lawfully made. Refusing or failing to provide "an adequate" breath sample is itself a criminal offence.

Arraignment: the calling of the accused to the bar of the court to plead to the charge(s) made against him. The accused will also be given the opportunity to elect the form of trial (see election)

Attorney General: an elected member of the legislature and a member of the cabinet who is the chief law officer of the crown responsible for the proper administration of justice in the province. In the federal sphere, the Minister of Justice fills this role as Attorney General of Canada

[B]  [TOP]

Bail: a court order permitting the release from custody of an accused person pending trial, or of a convicted person pending appeal.  Monetary or other security is given to insure the appearance of the accused at every stage of the proceedings.  Now described in the criminal code as "judicial interim release" (see recognizance)

Bench warrant: a court order issued for the arrest of an accused who does not appear for trial as required, or a properly subpoenaed witness who does not appear as required.

Beyond a reasonable doubt: the standard by which a judge or jury determines whether a criminal defendant is guilty

Blood Alcohol Concentration (BAC): alcohol concentration in the bloodstream. Expressed as milligrams of alcohol per 100 millilitres of blood (mg/100mL) or millimoles per litre (mmol/L)

Blood sample for alcohol analysis: a police officer may demand a blood sample be taken if there are reasonable grounds to believe that, because of any physical condition, a person may not be capable of providing a breath sample, or it would be impractical to get a breath sample. These samples will then be used to determine the level of alcohol in the blood. If a blood sample shows a blood alcohol level above the legal limit, a person will be given a certificate of analysis and will be charged with an “over 80" offence.

These samples of blood can only be taken by, or under the direction of, a qualified medical practitioner who is sure that taking the samples will not endanger the person’s life or health.

A person must be able to give informed consent to the taking of the blood samples (he or she must have enough information about how it works and be able to agree to give samples).  If someone is unable to give informed consent due to a mental or physical condition, such as injuries from a car accident, a police officer may be able to get a judge to give her permission to take the samples. These samples will be taken under the supervision of a qualified medical practitioner.

It is a criminal offence to refuse a demand for blood samples if you do not have a reasonable excuse.

Bolus Drinking: the consumption of a significant amount of alcohol just prior driving. It is considered a relatively rare occurrence. The Crown must disprove the possibility of bolus drinking. This is usually done by common sense inferences.Thus, absence any evidence on the record to the contrary, the Crown may simply rely upon the common sense inference that people do not normally ingest a large amount of alcohol immediately prior or during the operation of a motor vehicle. This in effect places a "practical evidentiary burden" on the accused, but does not place an onus or persuasive burden on the accused to prove that there was bolus drinking.

Breach: the invasion of a right, or the violation of a duty

Brief/legal brief: a written statement used as the basis for arguing a case. Legal briefs contain legal and factual arguments as well as supporting authorities.

Burden of proof: In civil law, a plaintiff must prove his case on a balance of probabilities; in criminal law, the crown must prove each and every element of the case beyond a reasonable doubt.

[C]  [TOP]

Canadian Bill of Rights: a statute passed by parliament in 1960 purporting to guarantee certain rights. It has been largely superseded by the Canadian Charter of Rights and Freedoms

Canadian Charter of Rights and Freedoms: since 1982, a part of the constitution of Canada that guarantees certain specific rights and protections against state action. Under the Charter, the police must do certain things when they detain or arrest someone. For example, they must:

  • tell you immediately what they have detained you for
  • tell you immediately that you can talk to a lawyer and let you do so in private before questioning you
  • give you access to a telephone
  • tell you that you can get legal help for free

If the police obtained evidence by violating ones rights under the Charter of Rights and Freedoms, the judge might not allow the prosecutor use that evidence.

Carter defence: Sometimes a person accused of an “over 80” offence tells their lawyer what they drank and when and the lawyer hires a toxicologist to calculate the person's estimated blood alcohol concentration at the time of driving. If the evidence of the driver is believed and the toxicologist's expert evidence is accepted and that evidence contradicts the breath instrument reading, in some jurisdictions there may be a defence. In Canada this is called a Carter defence or "evidence to the contrary".  

"Carter" evidence sometimes described as the "Carter defence", refers to defence evidence that is admitted for the purpose of presenting "evidence to the contrary", rebutting presumption of accuracy and presumption of identity.

The presumption can be rebutted by proof that the approved instrument analyzing the driver’s breath was malfunctioning or was operated improperly.

Before the July 2, 2008 amendments to s. 258(1)(c), the “Carter defence” was available for any offence of over 80. This allowed an accused to present evidence of consumption as well as expert evidence inferring the likely blood alcohol level.Now such evidence is specifically inadmissible where the presumption of identity is being relied upon. Instead the accused may only present evidence showing that the approved instrument “was malfunctioning, or was operating improperly” and resulted in BAC over 80 when it otherwise would not have.

Charter Motion: a defence application alleging a breach of a provision of the Charter.

Circumstantial evidence: evidence which does not prove a fact in issue directly, but rather indirectly by inference from subsidiary facts such as when a witness says "I heard a shot and I saw the accused with a gun in his hand standing over a body lying on the ground." These facts, if believed, could infer that the accused shot the person lying on the ground;

Clemency (or royal prerogative of mercy): an act of mercy which may be granted by cabinet or the governor general. It is only considered in very exceptional circumstances for deserving individuals who suffer excessive hardship as a result of a court imposed penalty, and where no other remedy exists under the law.

Common law: system based on judicial precedent rather than legislative enactments, such that judges base their decisions upon the recognition given by the courts to principles, customs and rules of conduct previously existing among the people.

Code: a complete statement of the law in a given area. In Canada we have a Criminal Code, an act of the Parliament of Canada which creates criminal offences, and prescribes the procedure for the conduct of criminal law proceedings. Quebec has a code of civil laws.

Concurrent sentence: sentences for different offences that are served at the same time rather than consecutively

Conditional discharge: occurs when the accused, after being found guilty, is discharged under certain conditions ordered by the judge.  If the accused complies with the conditions, the conviction will not appear on the offender's record, the discharge becomes absolute

Conditional sentence: a sentence of less than two years ordered to be served in the community (without going to prison) subject to a probation order

Conscripted evidence: evidence obtained from a person against his or her interest, such as bodily fluids, or a confession or admission

Consecutive sentence: sentences for two or more criminal offences which are served one after the other rather than concurrently or at the same time

Contempt of court: interfering with the administration of justice or ignoring the rules of the court

Corroboration: evidence that supports or confirms other evidence or testimony

Court clerk: assists the judge or justice of the peace in running the courtroom. They are responsible for most of the administrative work that takes place in the courtroom. There may be one or more clerks in the courtroom. Court clerks are seated below the judge or justice of the peace and will be dressed in a black robe or gown.

Court of Queen’s Bench: (Superior Court) is the higher court of criminal and civil jurisdiction in Alberta. It holds trials by judge alone and jury trials for criminal and civil matters. The federal government appoints justices to the Court of Queen's Bench.

Criminal negligence: is gross or extreme negligence. It requires a marked departure from a normal standard of care or conduct which shows a "wanton or reckless disregard for the lives or safety of other persons."

Cross-examination: both the crown and the defence counsel have the right to question (cross-examine) a witness presented by the other side

Crown attorney: a lawyer who is authorized to represent the crown (i.e. the state) before all courts in relation to the prosecution of offences. Responsibilities of the crown prosecutor include dealing with defence counsel in terms of disclosure and issue resolution; interviewing victims and witnesses; general case preparation; and conducting arraignments, preliminary inquiries, trials and sentencing hearings. Also known as crown prosecutor

Crown: the state or the state's representative at the trial

Culpable: sufficiently responsible for criminal acts or negligence to be at fault and liable for the conduct

Culpable homicide: causing the death of another human being: 

  • by means of an unlawful act 
  • by criminal negligence 
  • by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death
  • by wilfully frightening that human being, in the case of a child or sick person.



Last updated on: 2015-06-19 | Link to this page