Welcome to British Columbia’s only weekly DUI law update newsletter. This newsletter contains the most cutting-edge information, the newest case law, and helpful practice tips for DUI defence in BC.
Authored by Kyla Lee, BC’s Impaired Driving Update is released weekly on Thursdays.
What’s inside:
- Impaired Driving Defence Tip
- IRP Decision of the Week
- DUI Decision of the Week
- Kyla’s Insight
1. Impaired Driving Defence Tip
The second test is a trap.
In immediate roadside prohibition investigations, if a person provides a sample into an approved screening device that registers a warn or a fail reading, the officer must advise the person of their right to request a second test. The second test must be administered on a different ASD.
The second test is supposed to operate for the drivers benefit but in reality it does anything but. Unless there is some clear concern about mouth alcohol contamination or a result that absolutely does not correspond with this drinking pattern, the second test essentially becomes evidence to bolster the reliability of the first. It is corroborative of the first result and can be used to undermine the client’s version of events.
This is particularly risky in mouth alcohol cases. If your client takes the second test and the second test also registers a fail reading but the second test is administered more than 15 minutes after the last drink, it becomes the presumptively reliable result. Mouth alcohol would be an available defence to the first result, but the second test is not affected by that. It is rare that individuals have residual mouth alcohol contamination but have no underlying blood alcohol concentration. Barring situations of absolute certainty that mouth alcohol is the only explanation for the result, taking a second test runs the risk of eliminating a viable defence.
2. IRP Decision of the Week
The applicant was issued a 90-day administrative driving prohibition several months ago. After further investigation, police determined they would not be forwarding charges to the Crown.
In the meantime the applicant had disputed the 90-day administrative driving prohibition and received a decision revoking the prohibition. No further evidence was obtained by the police to provide any other foundation for a different administrative driving prohibition arising out of that incident. Despite this, because the officer decided not to proceed with criminal charges, he felt there should be some penalty and so issued the client a second administrative driving prohibition based on the same alleged conduct.
The applicant disputed the prohibition. Several arguments could be advanced in relation to the conduct of the officer, including that it was an abuse of process, that the issue was res judicata, and that the Superintendent of Motor Vehicles was functus officio, having already revoked the prohibition on the exact same facts.
The adjudicator agreed. The conduct of the police fell short of what would be expected in such circumstances. To make matters worse the officer who completed the report for the superintendent also commissioned his own oath, thereby rendering the ADP not properly sworn. There was simply no basis in law on which the prohibition could be upheld.
The prohibition was revoked.
3. DUI Decision of the Week
This week’s DUI Decision of the Week focuses on disclosure applications for further evidence under Section 320.34.
R. c. Filion, 2026 QCCM 14, involved a pre-trial motion for additional disclosure in an impaired driving prosecution. The accused sought three categories of information: a CRPQ database record, proof that the qualified technician was so designated, and proof of the technician’s ongoing competency. The Crown refused, arguing that the material was either irrelevant or held by third parties. The court was required to determine both the applicable disclosure regime and whether the accused met the burden for obtaining the requested material.
The court began by setting out the governing framework for disclosure, noting the right to disclosure is constitutionally grounded in the right to make full answer and defence under section 7 of the Charter. It distinguished between first-party disclosure and third-party disclosure, relying heavily on R. v. Gubbins to determine which regime applied. The key issues boiled down to whether the material was in the possession or control of the Crown, and whether it was sufficiently connected to the investigation or manifestly relevant such that it ought to have been disclosed. If neither condition was met, the request fell under the more stringent third-party regime.
With respect to the CRPQ record, the court held that the third-party regime applied and the request failed. The Crown did not possess or control the information, and it was maintained by another state entity. More importantly, the defence could not establish the information formed part of the investigative file or was manifestly relevant as there was no evidence any CRPQ check had been done. The argument that police “usually” consult the database was rejected as speculative. Speculation cannot ground a disclosure order. Thus, the request amounted to a “partie de pêche” as there was no evidence on which to conclude the information existed, much less played any role in the investigation.
However, the court treated the request for proof of designation as a qualified technician differently. Although the designation itself was held by third-party entities, the court found that this information was directly tied to the Crown’s ability to rely on the statutory presumptions. Status as a qualified technician is a necessary precondition to the presumption of accuracy. As such, it is not merely collateral but goes to the core reliability of the Crown’s evidence. The court rejected the Crown’s position that the certificate alone sufficed, noting that the Crown bears the burden of proving all conditions of the presumption with complete and convincing evidence.
As the presumption does not apply automatically and each condition must be established beyond a reasonable doubt, the judge held that “l’application d’une présomption ne se présume pas.” Or, in English, the application of a presumption is not presumed. Any doubt regarding whether the operator was qualified can undermine the reliability of the breath results. This logic also applied to the request for proof of ongoing competency, particularly where inconsistencies in the disclosed material raised a live issue.
4. Kyla’s Insight
Time to amend your standard disclosure requests. For Crown counsel reading this newsletter, time to amend your standard request from the police for disclosure to be provided to defence.
Particularly compelling in this case is the line that the application of a presumption is not presumed. Often we get so lost in the weeds trying to get samples excluded on the basis of a violation of Charter rights or attempting to demonstrate a malfunction or improper operation of equipment based on the limited disclosure that’s provided. We forget the very basics: there are basic elements of the offence that need to be proven when the presumptions are engaged.
For those concerned that this decision is overtaken by the Supreme Court of Canada’s decision in Rousselle, don’t be.
The Crown invoked Rousselle to suggest Parliament intended to simplify proof in impaired driving cases. The court indeed cited Rousselle as authority for the proposition that the legislative changes were meant to streamline and reduce technical disputes over breath testing evidence.
That said, the judge did not adopt the Crown’s position wholesale. Instead, the decision pushes back against an overly broad reading of Rousselle. When addressing the disclosure of the qualified technician’s designation, the court makes clear that simplification of proof does not eliminate the Crown’s burden to establish the preconditions for statutory presumptions. In effect, the court treats Rousselle as confirming that the process is streamlined, while insisting that foundational requirements still matter and must be proven with proper evidence. Remember that nothing in Laroque or Rouselle suggested the defence was not entitled to disclosure of elements that nevertheless did not need to be proven independent of the Certificate in court. The defence still has a right to confirm the proof exists.
The court stresses that the presumption of accuracy under s. 320.31 does not apply automatically. It states, in substance, that the Crown must still prove each condition of the presumption and that this “does not presume itself.” That reasoning limits the practical reach of Rousselle in disclosure disputes and provides a good foundation for pushing back on Crown refusal to disclose.
5. Resources
Want to know more about impaired driving and Immediate Roadside Prohibitions in BC? Here are some helpful resources:
The BC Motor Vehicle Act: https://www.bclaws.gov.bc.ca/civix/document/id/complete/statreg/96318_00
Criminal Code Offences Relating to Conveyances: https://laws-lois.justice.gc.ca/eng/acts/c-46/page-46.html#h-121277
CanLII: https://www.canlii.org/
RoadSafetyBC: https://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/roadsafetybc
6. Contact Us
The police have their experts. You should have yours.
Charged with impaired driving? Get the lawyer who literally wrote the book on it. Call Kyla Lee at Acumen Law today. Visit our contact form or call 604-685-8889 or email kyla@vancouvercriminallaw.com
7. Featured Firm
Featured Firm: Acumen Law Corporation
Based in Vancouver, Acumen Law Corporation is one of British Columbia’s leading criminal defence firms, recognized across Canada for its work in impaired driving law. The firm’s lawyers have successfully defended thousands of Immediate Roadside Prohibitions, criminal impaired charges, and driving suspensions.
Kyla Lee, a partner at Acumen Law, is widely regarded as a national authority on DUI law. She has authored multiple legal textbooks, teaches DUI defence across North America, and regularly appears in the media explaining developments in driving law.
Acumen Law is known for its deep understanding of both the law and the science behind impaired driving cases. The team approaches every file with meticulous preparation and a commitment to protecting the rights of drivers across BC.
