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 of the Week
- Decision of the Week
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
If your cross-examination spans a continuation date, you need to seriously consider whether it is worth exploring with a witness whether they discussed their evidence while under cross-examination with anyone else. The segregation and sequestration principles are very important to the proper administration of justice, and it is perfectly fair to ask the witness about this.
Be prepared, however, that if you get an affirmative answer you will still need to explore further with the witness whether they discussed what they were asked and the answers they gave, whether it was to investigate and be able to respond to pressing issues. The reason for this is because while prejudice is presumed, you also want to lay a foundation to show that the prejudice is something that fatally wounds trial fairness.
2. IRP of the Week
The applicant was issued a 90-day immediate roadside prohibition for refusing to comply with a demand for breath samples into an approved instrument. The applicant had been in a motor vehicle collision. Police attended. When they arrived, the applicant was outside the vehicle smoking a cigarette.
The officer delayed making an ASD demand for 11 minutes after the suspicion was formed because the applicant was smoking. However, he also said that he delayed administration of the test for fifteen minutes for the same reason.
The applicant disputed the prohibition.
Kyla Lee successfully argued that the applicant did not refuse to comply with a valid demand. The demand was not lawful as it was not made immediately. The Supreme Court of Canada confirmed in Bernshaw that operational delay is from the demand to the test, not the other way around. Further, the delay was longer than what was reasonably necessary. Smoking delay is five minutes. An 11-minute delay did not make sense on that explanation. A further 15-minute delay for the same concern duplicated an already unnecessarily long delay.
The adjudicator accepted that, based on the actions of the officer and failure to follow correct procedure for operational delay, the applicant did not refuse to comply with a valid demand.
The prohibition was revoked.
3. Decision of the Week
Crown conduct is under the microscope in this week’s decision of the week. In the case of R. v. Idris 2026 ONCJ 245, the accused was charged with dangerous driving causing bodily harm, failing to remain at the scene of an accident, and obstructing justice following an incident where he allegedly struck a police sergeant with a motorcycle.
During the trial, a conflict arose after a police officer, P.C. Hasanbasic, was called by the defence and provided testimony that did not fully support the Crown’s theory. Following this testimony, the lead prosecutor, Ms. Goldenberg, confronted P.C. Hasanbasic in a courthouse hallway, leading the defence to bring an application for a stay of proceedings based on an abuse of process.
The trial judge disbelieved Ms. Goldenberg’s account of this confrontation because her testimony was contradicted by objective evidence and common sense. Although Ms. Goldenberg maintained she was not angry and spoke in a mild tone, the judge reviewed hallway security video and concluded she was clearly angry and engaged in a dressing down of the officer. Furthermore, Ms. Goldenberg’s claim that she did not have a theory of the case or intend to prove the collision was intentional was found to be not credible, as it contradicted her own sworn affidavit and the way she had conducted the trial. The judge also rejected her denial of using profanity, instead accepting the testimony of Mr. Idris and P.C. Hasanbasic that she had used disgusting and profane language during the exchange.
Regarding her conduct, the judge found that Ms. Goldenberg had abandoned her role as an objective minister of justice and improperly aligned herself with the police. The court determined that she had berated P.C. Hasanbasic for testifying for the wrong side, using the phrase we protect our own (or words to that effect) after the officer asked if he was expected to lie. The judge described this behaviour as a flagrant impropriety that interfered with police independence. By confronting a witness in the presence of the Officer-in-Charge (OIC), the prosecutor sent a chilling message to the police community that they must support the prosecution’s narrative or face professional consequences.
The charges against Mr. Idris were ultimately stayed because the judge concluded that the integrity of the justice system had been compromised beyond what a simple change of counsel could fix. While Ms. Goldenberg had been removed from the case, the judge noted that neither she nor the OIC (who remained on the case) took responsibility for their actions, and both were less than candid during the abuse of process hearing. The court found that proceeding with the trial would manifest, perpetuate or aggravate the prejudice caused by the state’s misconduct. Because the conduct risked creating a systemic belief that officers must stay on side regardless of the truth, the judge determined that a stay of proceedings was the only way for the court to dissociate itself from such an abuse and preserve public confidence in the administration of justice.
4. Kyla’s Insight
Yikes.
Thankfully, this type of behaviour on the part of Crown Counsel does not happen very often. A case like this is the exception rather than the rule. This case also sends an important reminder to all counsel about their obligations when interacting with a witness and in presenting their theory of the case, and the need to courageously bring abuse of process applications where appropriate.
The protection of the reputation of the administration of justice is a paramount concern in any proceeding. Any conduct that tends to strike at the heart of that, and at the public’s perception of an independent and fair adjudication in a criminal court, must be treated with the utmost seriousness.
I cannot imagine the Crown will attempt to appeal this ruling. Not only does it make them look bad, but the ultimate gain would simply be a new trial for the accused. Witnesses would be required to come testify again, including witnesses who have already been involved in the process and provided helpful evidence for the defence.
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.
