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
Always dispute the ADP.
The administrative driving prohibition that often accompanies a criminal charge for impaired driving is something some lawyers advise their clients not to dispute. Oftentimes there’s no defence. The rationale makes sense: it costs money to file an application for review with the Superintendent of Motor Vehicles and, given that the defences are extremely limited, the chances of success in a dispute are usually low.
However there is a benefit in disputing the ADP and that benefit is that you get access to the ADP disclosure.
With changes that have recently been made to the administrative driving prohibition review process, the ADP review disclosure is often the same or similar narrative to the one submitted to Crown counsel.
Not only can you examine that narrative for discrepancies between it and the narrative in court but it is also great fodder for cross-examination. If the officer puts something in that document that is inconsistent with their trial testimony, you have a sworn report from the officer on which you can challenge the veracity of those assertions. In some circumstances the officer fails to properly swear the report, which then leads to a successful challenge to the officer’s credibility based on apparent perjury.
There’s no downside to getting the documents other than the $200 it will cost your client to dispute the ADP but the upside and possibility of it is absolutely worth that investment.
2. IRP Decision of the Week
The applicant was pulled over by police for speeding and subsequently given an approved screening device demand. The time of the traffic stop was 2156. The officer’s suspicion was formed at 2200 hours and the demand was made at 2203. The applicant refused to comply with the demand.
In the three minutes between when the suspicion was formed and the demand was read, the officer waited for an approved screening device to be brought to the scene. During this time the applicant was handcuffed and placed in the back of the police vehicle.
At the time the device arrived, the applicant refused to provide a sample. Despite the delay being only a very short delay of three minutes, the delay was nevertheless found by the adjudicator to have been unlawful.
No delay is permissible waiting for an approved screening device to arrive. It does not matter if the delay is three minutes or if the delay is three hundred minutes. The salient point is the Supreme Court of Canada has been abundantly clear that this is not a permissible reason to delay making the demand or administering a test. In such circumstances charter rights must be provided and as they were not, the demand was not lawful.
The prohibition was revoked.
3. DUI Decision of the Week
For those practitioners in the lower mainland, this week’s decision on when a Mandarin speaker was entitled to have their Charter rights and breath demand translated is going to be of great significance.
In R. v. Xiong, 2026 ONCJ 174, the accused was charged with operating at over over 80 mg%. Ms. Xiong was a permanent resident whose primary language is Mandarin.
During her trial, she testified through an interpreter that her English proficiency was rudimentary at best and that she did not understand she had the right to contact a lawyer of her choosing. Although the arresting officer believed she understood his instructions in English, video evidence from the breath room showed Ms. Xiong clearly struggling to comprehend the technician’s demands and cautions, often providing nonsensical or hesitant answers due to the language barrier.
The court found two violations of Ms. Xiong’s section 10(b) Charter rights. First, the arresting officer waited eight minutes after the arrest to read her rights to counsel without any safety-related justification for the delay. Second, and more importantly, the court ruled that special circumstances existed that required the police to provide a Mandarin interpreter. Viewing the matter objectively, it should have been apparent to the officers that Ms. Xiong spoke only limited English. The police in fact gave her a Mandarin interpreter for her duty counsel call, but they failed to provide one for the informational component of her rights or during breath testing.
Under the section 24(2) analysis, the Court determined admitting the breath sample evidence would bring the administration of justice into disrepute. The failure to provide a translator was characterized as extremely serious and tantamount to not providing rights to counsel at all, as it deprived Ms. Xiong of the ability to meaningfully understand and exercise her constitutional rights. While the breath samples were reliable and necessary for the Crown’s case, the Court concluded that the seriousness of the state’s misconduct and the significant impact on Ms. Xiong’s protected interests outweighed the public’s interest in an adjudication on the merits. Consequently, the evidence was excluded.
4. Kyla’s Insight
It is so often that we see officers either communicate with an accused partly in English and partly in their language of choice if the officer speaks that language, or contact another officer to explain matters of significance to the police to the accused. However we often see the police not providing consistent interpretation in terms of ensuring that the Charter rights and warnings, instructions on how to provide a sample, and any other pertinent information to the investigation is actually conveyed to individuals.
This case is incredibly useful for those situations where it is clear the officers knew there was some sort of a language barrier and took some steps to address it but didn’t do so fully and completely. Even in cases where the police don’t make any effort to communicate with someone in their first language, this case still is helpful, given the Court’s finding that it was objectively clear the accused struggled in English. If you can find points in BWC footage or detachment video that demonstrate that objective difficulty, you may be able to demonstrate the same Charter breach as here.
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.
