Kyla Lee

Fairness in DUI Hearings in British Columbia

If you’ve been following my blog or my firm‘s blog, you’ve probably read a little bit about fairness in DUI hearings in British Columbia. There are aspects of fairness that affect all levels of the Immediate Roadside Prohibition, from dealing with the police at the roadside, to obtaining disclosure, preparing your defence, presenting your arguments, and receiving your decision. But what about what happens after you receive your decision?

This is where another level of unfairness in the process comes into play.

More Ways the Government Wants to Take Your Car

This summer has been unbelievably hot in British Columbia, and as a consequence of the heat there have been an inordinate number of forest fires. The Government has already spent over $100 Million fighting these fires, with over 200 still burning in the province. It has been costly and devastating. 

But some politicians have been using forest fires as an argument to justify taking your car. That’s right. The BC Government is currently considering whether they can impound your car because of forest fires. Now, if you’re a rational British Columbian like me, you’re probably wondering what the connection between forest fires and your vehicle is.

Let me tell you.

A Second Breathalyzer Test – a double-edged sword

When you are pulled over and subject to an Immediate Roadside Prohibition investigation, you have the right to a second breathalyzer test at the roadside. This test is required to be conducted on a different device, and the lower of the two readings will prevail. The second test is sold to drivers by police as the mechanism by which they are entitled to challenge the results of the first test, and that they have nothing to lose by taking this. Well, that’s only sometimes true. The second breathalyzer test is often a double-edged sword.

BC heading for stiffer distracted driving penalties: Canadian Lawyer Magazine

B.C. Attorney General Suzanne Anton is reviewing British Columbia’s fines and penalties for drivers caught using electronic devices as the number of police issued tickets continues to climb along with Insurance Corporation of B.C. fatalities and carnage costs.

“We took a first step and increased the penalties last fall and now we’re looking at possible changes to the legislation, including more severe penalties. We want to ensure these are set at a level that is fair and effectively changes behaviour,” she says. Ministry figures estimate that at any given time in B.C., 9,500 drivers are using a hand-held device with 40 per cent texting or e-mailing.

ICBC figures record 88 fatalities on average per year from distracted driving (most are attributed to use of electronic device use) with the figure surpassing drunk drivers (86) and only second to speeding in roadway fatalities (105).

Anton called for a month of public consultation with feedback on electronic device use while driving and penalties either directed through the justice ministry’s website, by e-mail, or snail mail from June 16 to July 16.

Police report that in 2014, 55,100 tickets were issued to drivers for mainly electronic device use, up from 2013 when 53,000 were issued. B.C. introduced legislation prohibited the use of electrical devices while driving in 2010. In the fall of 2014, it increased the penalty and fines to $167 (the second lowest in Canada) and three demerit points. (Ontario recently passed legislation enabling the maximum fines to rise from $500 to $1,000).

As B.C. wrestles with the issue of how to get drivers adhere to s. 214.2 of the B.C. Motor Vehicle Act, ICBC has struggled with rising insurance claim costs with distracted driving adding $500 million to claims since B.C. first introduced the cell phone law in 2010.

“We don’t seem to want to give up our phones,” says Kyla Lee of Vancouver’s Acumen Law Corp., who represents an average of two individuals with such violations a week in traffic court.

She’s not surprised as distracted drivers have a higher fatality rate than drunk drivers.

“We are on our cell phone 24-7, while most impaired driving offences take place between midnight and 3 a.m.,” says Lee.

Most people, she says, pay the fine and accept the demerit points, but when it turns into a situation that impinges their driving ability, they walk through her door. The penalty for receiving more than one distracted driving ticket in a year is at least $634, the equivalent of two fines and a $300 penalty premium for accumulating six points.

Despite the potential to stack up points, B.C. drivers seem glued to their devices. “People are not getting the message,” Lee says, adding that she has had and heard of cases where individuals have gotten four and five tickets and “still won’t stop using their phone”

Vancouver criminal lawyer Cathryn Waker, with Mickelson and Whysall Law Corp., agrees. She is familiar with cases where the tickets have climbed to 10 or more.

Waker says she’s also seen many new drivers, who aren’t allowed to use a device even if it’s hands-free or voice activated, who are running afoul of the law. Those still under the 24-month probationary period of the graduated licences can also face licence suspensions in addition to regular fines and demerits.

Lee says the courts are tough on offenders. “The justices of the peace are giving that person a stern lecture as well as the fine,” she says.

She adds there isn’t much wiggle room in the way the law is written, even though clients argue that police can’t prove it was a cell phone being used. She says the excuses such as the driver claiming he or she had a bar of soap or a wallet in their hand is not flying in the courts. “Who holds their wallet to their face?” she says. “The courts seem to be quite tired of those excuses.”

As B.C. moves to be bring forward more punitive measures for drivers fixated on their devices, fighting such tickets are also expected to become more difficult. B.C. is in the process of taking traffic violations out of the courts with a two-step process with the first phase a move to e-ticketing, now being implemented.

With e-ticketing, once the police officer uploads it in his vehicle and gives the driver a ticket, the offences is immediately in the judicial system. Tickets are payable online.

For those who want to contest a ticket, it’s an appearance before Driving Notice Review Board. But before the hearing, the person must supply their own evidence. The police officer, or another officer, does not have to supply evidence beyond the ticket, says Lee.

The decision of the board is final with no recourse to an appeal or taking the issue into court, says Lee, who has been an outspoken critic of the new system. She claims it as strips motorists of their basic constitutional rights when charged with an offence.

No dates have been set for start-up of the new system.

Read the full article here: B.C. heading for stiffer distracted driving penalties by Jean Sorensen, Canadian Lawyer Magazine

The Biggest Failing of BC’s DUI Law

When the British Columbia government introduced its new drinking and driving laws, it touted the penalties as swift and severe. It was, and still remains, the toughest drinking and driving law in Canada. Many people, including myself, were aghast at the idea that roadside justice was replacing a proper legal method of separating the innocent from the guilty that respected the presumption of innocence.

The first version of the legislation was found unconstitutional in part by the BC Supreme Court, and is currently under consideration by the Supreme Court of Canada. The second version was determined to be constitutionally valid. And the third version is slowly being regulated into existence. One of the elements of the law that the government and the courts have praised is its rapid response to the social problem of drinking and driving.

But, ironically, this is the biggest failing of the law.

Kyla Lee on Distracted Driving Penalties 

Penalties for Distracted Driving

Today the BC Government made an announcement in the middle of its public consultation process about the penalties for distracted driving. Their thinking is that drivers are not getting the message about distracted driving, and so the penalty must increase to stop the behaviour. One of the suggestions the Government is looking at implementing? License suspensions and vehicle impoundment. That’s right, the Government is currently seriously considering taking your car and your license away on the spot if you’re ticketed for using a cell phone while driving.

British Columbia’s DUI Laws at the Supreme Court of Canada


In May of this year, the Supreme Court of Canada heard arguments in two cases on the BC Government’s Immediate Roadside Prohibition scheme. I was fortunate to be granted leave to appeal the decision in the Wilson case, and presented my argument to the court first thing that morning. The room was packed with lawyers who have more experience at this level than me, who had been practicing for years, and for many of whom it was one of many trips they have already made in their careers.

There were two cases being heard that morning – the Wilson case and the Sivia/Goodwin case. The second case was about the constitutional challenge to the IRP laws, while my case pertained to whether an officer has to have reasonable grounds beyond just the reading on the ASD in order to issue the prohibition.

Federal Government has Passed the Victims Bill of Rights

As of June 18, 2015 it’s official: the Federal Government has passed the Victims Bill of Rights and it has been made law by Royal Assent. While there are compelling reasons to ensure that victims in a criminal trial process are heard and had a voice, the manner in which it was achieved by Parliament is not something that I believe is effective or consistent with a fair, just, and free and democratic society. The Bill functions to eliminate the rights of those charged with an offence, in favor of adding rights to victims.

Thoughts on MADD Canada’s 2015 Provincial Impaired Driving Report

Because I’ve been an impaired driving lawyer for a few years, I have learned that it’s not wise to trust the headlines regarding impaired driving statistics. Particularly when it comes to anything reported or suggested by MADD Canada. They are, after all, a lobby group with a particular interest. They have a discernible bias in what they report and how they report it. To accept what they say at face value would be akin to accepting the conclusion that McDonald’s is healthy in a study funded by the restaurant chain.

Today I listened to a show on CKNW’s Simi Sara show regarding MADD Canada’s latest report. I wanted to write a short blog post about my thoughts on MADD Canada’s 2015 Provincial Impaired Driving Report.

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