Dear Atty. Rodriguez

Ano po ang gagawin ko kung nakainom ako at dala ko ang aking kotse. Pwede po ba akong matulog sa kotse ko at magpalipas ng pagkalasing bago ako mag drive pauwi?

Mr. S. Lot

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Mr. S. Lot,

Ang payo ko ay mag taxi ka na lang at iwanan ang kotse mo kung saan mo ito pinark. O kaya naman ay makisabay ka sa mga kaibigan o makitulog sa kanila. Huwag kang papasok sa kotse mo ng lasing ka kahit wala kang balak mag drive. Marami nang kaso kung saan ang driver ng kotse ay lasing, sumakay sa driver's seat at naupo lang doon. May nakakita sa kanila at tumawag sa 911.  Dumating ang pulis at kinasuhan and driver ng Impaired care or control under sec. 253 of the Criminal Code.

If you are charged with having care or control of a motor vehicle while impaired, the Crown does not have to prove that you had the intention to drive in order for you to be found guilty. As long as you perform some act or series of acts involving the use of a car whereby there is the risk that you may unintentionally set the vehicle in motion, you may be convicted of this offence. Or as long as you had the immediate capacity or means of operating the motor vehicle, there existed the risk that you would put it in motion and become a danger to the public, even though at the time you were found by the police, you were asleep in front seat of the vehicle. This is an actual case where the accused was found guilty.

In other words, as long as there is that danger of you setting your car in motion, even though it may be unintentional, you may be convicted.  Therefore, in order to avoid this, it would be more prudent for anyone who had been drinking to not even go into his car even just to sit. Just take the cab or sleep over at your friend's. This is the safest thing to do. Not only are you avoiding being charged with a criminal offence, you would also be avoiding any risk of danger to yourself and others.

So paalala lamang sa ating mga kababayan, huwag na huwag po tayong mag drive kung nakainom. At wag po tayong matutulog sa ating kotse o maupo sa ating kotse upang magpababa ng pagkalasing. Hindi lang dahil baka kayo mahuli ng pulis, higit sa lahat, ayaw po nating maging dahilan ng aksidente. Madami na pong namamatay dahil sa drunk driving, iwasan nating maging isa sa kanila.

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Dear Atty. Rodriguez,

In case I get charged with drinking and driving, and I just want to get it over with, will I go to jail if I plead guilty? If so, how long will I stay in jail? Do I need to hire a lawyer to plead guilty?

Mr. Yoso,

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Dear Mr. Yoso,

The minimum penalty for Impaired driving is $600 fine and you will be prohibited from driving for one year. This is just the minimum. Each case is different. In imposing a penalty, the judge has to consider so many things, such as whether you have a criminal record, whether this is your first impaired driving conviction, aggravating circumstances, mitigating circumstances, etc. You could be sent to jail if these other factors justify it. I believe that there are amendments to the Criminal Code regarding Impaired driving and Over 80. I am not sure when they will take effect. But it is important to know that the penalty will be raised. I know that in the amendment, anyone found guilty of Impaired driving that caused bodily harm to the victim, the offender shall be liable to imprisonment of up to 10 years. Worse, if the victim dies as a result, the offender shall be liable to imprisonment for life. This amendment is important and I will inform the readers of when this will take effect.

On the issue of pleading guilty, I don't think it is a good idea to plead guilty just to get it over with. If you plead guilty, you will be giving up your right to a trial. If you go to trial, it is the Crown who has to prove your guilt beyond a reasonable doubt and not the other way around. A lot of people probably think that once they are charged with an offence, they have to prove their innocence. NEWSFLASH, not true. Have faith in the criminal justice system in Canada. Here, it is the Crown Attorney (meaning the prosecutor, sa Pilipinas, sila ang tinatawag na Fiscal) who has to prove an accused's guilt beyond a reasonable doubt. If you are an accused, you do not even have to present any evidence; you do not have to prove anything. Of course if you have evidence to support your story, you could present it. This could help the judge see the truth. However, you do not have to testify if you don't want to.  If you go to trial, the crown attorney will present his evidence and try to convince the judge that you are guilty beyond a reasonable doubt. This is the key word, “reasonable doubt”. As long as the judge has a reasonable doubt in his mind regarding your guilt, then he must acquit, and find you not guilty. So I still believe it is best to go to trial and put the crown's evidence to test.

However, if you think you are guilty of whatever it is you are charged with, you should first consult a lawyer and give him the details of your arrest and the incident leading to it. He would give you advice on what to do and if after that, you still wish to plead guilty, he could assist you. He could speak with the crown attorney and find out what penalty they will be asking for. Your lawyer would plea bargain with the crown attorney and get a lower penalty than what they originally had in mind. But remember, even if your lawyer and the crown attorney agree on a penalty, it does not mean that that is what you will get. The judge always has the last say in what penalty to impose on you. He could give you a higher or lower penalty than that agreed upon by your lawyer and the crown attorney.

So yes, it is best to consult a lawyer before you decide to give up your right to a trial. There are so many things only a lawyer would know, that could greatly affect, not only your decision on how to proceed, but the end result of whatever it is you decide to do, even if it's only a guilty plea.

First of all, I would like to introduce myself. I am Maria Eleanor T. Rodriguez and I am a Filipino Criminal lawyer in Ontario. Before coming to Canada, I worked as a lawyer at the Office of the Solicitor General (OSG) in the Philippines for six years. The bulk of my work at the OSG involved criminal appeals. I moved to Toronto in 2001 and worked as a Courtroom Clerk at the Criminal Courts at the Old City Hall from 2002 to 2006. After getting my Certificate from the National Committee on Accreditation, I took the Bar Admission Course and passed. I was offered and I accepted an articling position at the Crown Law Office-Criminal under the Ministry of the Attorney General. This office is considered the best place to article for someone who wants to be a criminal lawyer, because they provide the best articling program in Criminal Law. Part of my training as an articling student was to prosecute Highway Traffic Act offences such as speeding, careless driving etc., at the Old City Hall, in downtown Toronto.  I also drafted pleadings and legal memoranda, conducted legal research, summarized voluminous transcript and accompanied counsel to the Court of Appeal on cases in which I assisted in the preparation. The Crown Law Office-Criminal is also known as the training ground for Judges, since a lot of the Judges in the Ontario Court of Justice were either former Crown counsel or articling students at their office.

 I officially became a lawyer here in Ontario in June, '07. The first job I had as a lawyer was with the Crown Attorney's office in Durham Region, where I worked as an Assistant Crown Attorney. I worked as such for over 5 months. For those unfamiliar with the job title, it is the Canadian equivalent to our Fiscals in the Philippines. In other words, it was my job to prosecute those persons charged with offences under the Criminal Code.

During the course of my job as a Court clerk in the Criminal Courts for 4 years and as an Assistant Crown Attorney, I have seen some Filipinos get involved in the Criminal Justice system. It always saddens me to see a fellow Filipino in such an unfortunate predicament. Most of them were unfamiliar with the Criminal justice system for the simple reason that we are generally law abiding citizens and getting in trouble with the law is not our cup of tea. The other sad thing is that these Filipinos were represented by lawyers who are not Filipinos. I guess they have no choice because most of the Filipino lawyers in the GTA are either in Real Estate, Family Law or Immigration Law. I am not saying that non-Filipino lawyers are incompetent, not at all. In fact, there are a lot of excellent Criminal lawyers in the GTA, but 99% of them are not Filipinos. And although they are experienced lawyers, they do not posses the most important skill a Filipino client needs, the skill to speak our language. No matter how fluent you maybe in English, unless you are a Filipino who was born or raised in Canada, you would still feel more comfortable telling your story in your own native language. Yes, there are Filipino interpreters that maybe used, or the lawyers may have employees in their offices who are Filipinos that speak the language, but that is not good enough. You would not want to speak to your lawyer through someone else. A lawyer-client relationship should be a personal relationship where you can say anything you want without anyone else having to know your business. It is important to remember that you have to tell your lawyer everything he needs to know regarding your case. Who else can say it more accurately than yourself? And how else can you say it more clearly and vividly than in your own native tongue?

So now here I am, a licensed Criminal lawyer in Ontario, born in the Philippines, raised in the Philippines, and most importantly, a criminal lawyer whose native tongue is Tagalog. I am an immigrant who struggled and continues to struggle in this foreign land that I now embrace as my home, just like the rest of you. I know and feel your sufferings and pains, I have them too. I want to be able to help those who want to understand the Criminal Justice System in Ontario, so starting today, feel free to email your questions to metrodriguez@gmail.com. You may ask your question in either Tagalog or English and I will answer them in the same language you used. Please understand that it is not legal opinion or advice I will be providing. I will just give you information based on my understanding of what the Criminal Code of Canada and existing jurisprudence may provide, on any issue that may arise out of your questions. Please remember that this column can only provide general information that may not apply to every case.  In all cases, the opinions expressed are mine alone. I hope that this will be of service to our Filipino Community.