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Toronto lawyers dedicated to helping people charged with impaired driving

How language barrier or communication problems can help those charged with DUI in Canada

When someone is pulled over by the police for an impaired driving related investigation, their ability to understand and communicate with the police is essential to their ability to comply with all demands and obligations. If the driver’s first or native language is not English, they may have difficulty understanding the demands made by the police which may impact their performance on roadside sobriety tests and breath testing (ASD, Intoxillizer, etc.).

The most common charge that we see in language or communication barrier cases is failure or refusal to provide a breath sample under Section 320.15 (1) of the Criminal Code. The driver may simply not understand the demand being made or their legal obligation to comply with it. As such, the mens rea, or guilty mind element of the offence may be difficult for the Crown Attorney to prove in court beyond a reasonable doubt.

If I have an Ontario driver’s licence (G, G1, G2) does this mean I cannot rely on the defence that my language barrier caused me to fail or refuse to properly provide a breath sample or successfully perform a roadside DUI test?

Absolutely not. Just because someone has an Ontario driver’s licence does not mean they are sufficient enough in English to understand the demands made upon them by the police if they are stopped for a DUI. This includes all licence classes in Ontario given by the MTO including A, B, C, D, E, F, G, G1, G2, M and Z. Some people charged may hold an AZ licence to professionally drive a semi/18 wheeler/long haul vehicle. People who drive for a living risk losing their licence, job, immigration status, and the ability to cross the US border in the future.

Being pulled over or stopped by the police is always a stressful situation and for those who are not native English speakers they may find themselves unable to think, understand, and respond as they normally would. For someone who speaks English as a first language these stresses also exist but not nearly to the same extent.

Sometimes immigrants who get charged with DUI or failure/refusal to provide a breath sample are unfairly disadvantaged because they do not fully understand what is happening during the arrest process.

Ontario, Canada (and in particular the GTHA) is known as a place with a very high percentage of immigrants whose first language is not English. Ontario is also primarily an English speaking province. When someone gets pulled over for DUI time is of the essence. The police want to administer tests as soon as possible because the suspect’s blood alcohol level (BAC content) and intoxication will decrease over time.

If the accused does not speak English as a first language they may legitimately not understand that they are legally required to blow into a breath testing machine if demanded by the police to do so. They may also not fully understand the instructions as to how to properly comply with the test. Some may have health conditions such as COPD or other lung related problems that may prevent them from properly blowing, but not be able to explain that to the police when they are arrested. This is just one example.

There are numerous health problems that may prevent those charged with DUI/impaired driving from being able to blow hard enough to provide a result. Those who do not speak English as a first language may not understand the demands and lack the ability to explain why they are unable to comply with them to the police.

Every case is different and as of 2021 language barrier issues are becoming a more common form of defence in Ontario, Canada courts.

In our experience, the 6 most common non-English first languages of immigrants charged with DUI who may not fully understand police demands when arrested are:

  1. Punjabi and Hindi (India)
  2. Mandarin and Cantonese (China and Hong Kong)
  3. Farsi and Persian (Iran, Afghanistan)
  4. Tagalog and other dialects (Phillipeans)
  5. Russian, Ukrainian, Albanian (Europe)
  6. Spanish (Mexico, Central and South America)
This is by no means a complete list. Some speak Arabic, Urdu, Korean, Polish, French, Italian, Portuguese, etc. Canada has immigrants from all countries in the world. Legally what matters is whether the intent, or mens rea, is present when the crime was committed. Regardless of what the native language or home country of the accused is, if they do not properly understand the demand to blow by the police or the instructions in a roadside sobriety test this may be a successful avenue for their defence lawyer.

Immigration applications and the problems associated with DUI related criminal charges.

Some accused who get charged for impaired driving are not Canadian Citizens. When they get charged for DUI they are not only concerned about their own IRCC immigration status but also that of their family members. Some are also permanent residents (PR) who intend on sponsoring their family members to immigrate to Canada in the future.

Canada’s DUI laws recently changed to increase the potential penalties for drunk driving (s. 320.14 (1)(a)) and failure or refusal to provide a breath sample to the police (s. 320.15 (1)). While in the past immigrants who were convicted and found guilty were able to remain in Canada and not face deportation this is not necessarily true as of 2021.

Those who have legitimate criminal defences for DUI/impaired driving charges on the basis of a language barrier have a much higher chance of being in the immigration system (student, work permit, PR) than Canadian Citizens. This means they are not only subject to a criminal record that may render them unemployable, they may also be deported from and found inadmissible to Canada and other countries such as the United States and the United Kingdom in the future.

For immigrants in the IRCC system charged with DUI it is in their best interest to hire a lawyer to work on defending the charges immediately.

This being said, for those who are citizens, this does not mean that they have a perfect understanding of the English language or that their case cannot be won on the basis that they did not understand the demands and instructions of the police. Many Canadian citizens do not speak English.

Anyone charged with a DUI offence in Canada will receive, at a minimum, a criminal record if they are found guilty of impaired driving so it is extremely important to consult with a DUI lawyer immediately if they are criminally charged.

How can I tell if I was charged? Who can I call to stop this from happening?

If you have been fingerprinted or given a future date to attend for fingerprints by the police and receive a court date, normally in the Ontario Court of Justice (OCJ) by the police you are being charged and your case will be dealt with in the criminal justice system. The paperwork with the court date you will most likely receive will be a Form 9 - Appearance Notice, Form 10 - Undertaking, or a Form 11 - Release Order.

If you have received a court date for a DUI charge or have already been to court on your own you should call a criminal lawyer immediately because from now on the only decision makers in your case will be the Crown Attorney, the Judge, and potentially the Judge and Jury. While every case is different, many accused assume they have no defence or successful options when in fact the opposite is true.

Call us today.

You don't have to jeopardize your future or waste thousands of dollars on excessive legal fees. We provide effective and affordable lawyer representation for those charged with impaired driving offences throughout Ontario.

Have a skilled criminal lawyer who focuses on impaired driving related charges protect you and your future from the stigma and consequences of a criminal record.


    call us: 647-228-5969

    contact@duifix.ca


  call us: 647-228-5969

  contact@duifix.ca

Your case will be defended by a fully licensed Practicing Lawyer of the Law Society of Ontario. For more information about our lawyer, click here.

We provide our clients with:
  • Flat fee pricing
  • US travel advice and information
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • Clear goals of getting charges dropped and bail conditions varied without a trial
  • Help with related immigration issues
  • Vulnerable Sector records suppression help
  • Experienced, focused counsel


* Please note:

If you are not a paying client, we cannot answer questions and provide assistance with U.S. travel, immigration, employment background checks, and avoiding a criminal record. This includes those who have already retained other counsel and those whose cases have already been completed.

Are you a lawyer? If you are defending an impaired driving related case and are looking for expert advice regarding possible defences, case strategies, and information release management call us at: 647-228-5969.

Please note: We do not accept legal aid certificate cases. All clients are handled on a private retainer only.


 

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  We provide:
  • Flat fee pricing
  • 99%+ non-conviction success rate
  • U.S. travel advice and information
  • Help with related immigration issues
  • Employment background check advice/services
  • Fingerprints and records destruction services
  • A clear goal of getting the charges dropped without a trial
  • Vulnerable Sector records suppression help
  • Timely resolutions
  • Lawyer/client privilege
  • Experienced, focused counsel