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
Bad facts make bad law.
As you will see in the DUI decision of the week, bad facts are often not a good basis on which to launch a constitutional challenge. As practitioners we are often stuck in a difficult place, having to choose between advancing a constitutional issue on behalf of our clients based on bad facts in order to pursue every avenue in their defence, or abandoning it out of concern for making bad law. It certainly puts us between a rock and a hard place.
One thing defence lawyers should consider when determining whether to advance a constitutional question in a case is whether the evidence on the constitutional challenge would be strong enough to displace the impact of a set of horrific facts. This is particularly true where section one justification may be used by the Crown. A set of terrible facts involving deaths and injuries is less likely to lead to a law being struck down than a case with more neutral facts, such as a roadblock traffic stop with no symptoms, because impaired driving laws are often upheld on the justification of public safety. Having before the court one of the more horrific examples of a public safety violation makes that nebulous concern realistic.
I’m not saying don’t advance constitutional issues but I am saying think very carefully about whether the facts in your case are bad enough that the constitutional question also will not help your client.
2. IRP Decision of the Week
The applicant was issued a 90-day immediate roadside prohibition for failing a breath test. He was observed by police at the far end of a parking lot, in an area where parking was not permitted. He was observed standing outside his vehicle on his phone.
Police detained him and made a demand for breath samples, which produced fail readings.
The applicant disputed the prohibition.
Kyla Lee successfully argued that the applicant was not a driver. Not only was he not on a highway or industrial road by the officer’s own description of the location where his vehicle was parked, but he was not engaged in any act of care or control. Care and control requires an intentional course of conduct associated with a vehicle, and merely standing outside one is insufficient to meet that criteria.
The adjudicator agreed. The applicant was not a driver.
The prohibition was revoked.
3. DUI Decision of the Week
The case of R. v. Robertson 2026 ONCA 281 is the first appellate authority on the constitutionality of the blood THC concentration regulations. The facts are terrible.
Mr. Robertson fled from police at high speeds after crashing into a sidewalk barrier while appearing to be in a stupor. Two days later, he again fled from a police pursuit, driving at nearly twice the speed limit through a residential neighbourhood before running a red light and colliding with a minivan. This catastrophic collision killed a woman and her three young daughters, ages one, three, and six. Blood samples showed his tetrahydrocannabinol (THC) level was 40 ng/mL, eight times the legal limit of 5 ng/mL.
Mr. Robertson pleaded guilty to four counts of dangerous driving causing death. He was convicted after trial of the blood THC concentration offences.
Mr. Robertson brought a constitutional challenge to the 5 ng/mL THC limit prescribed by the Criminal Code and its regulations. He argued that the limit violated section 7 of the Charter because it was arbitrary and overbroad. Specifically it has the potential to capture drivers who are not actually impaired.
The Court of Appeal upheld the trial judge’s rejection of the constitutional challenge, ruling that the THC limit is a valid exercise of legislative power in a highly regulated area: driving. The law was not arbitrary because blood THC concentration is a reliable indicator of recent cannabis consumption, which is strongly associated with impairment. By establishing a clear threshold, the law advances Parliament’s dual objectives of deterring individuals from driving after using cannabis and enhancing the detection of impaired drivers.
Regarding overbreadth, the court emphasized that perfect matching between a law’s effects and its purpose is not required for it to be constitutional.
The court dismissed the hypothetical scenarios involving occasional users and cancer patients as speculative or unsupported by evidence. However, the court did acknowledge that the law might capture a narrow class of frequent users who are no longer acutely impaired. The court found this was reasonably necessary to manage the inherent risks of driving after drug use, particularly since there is no practical way for police to distinguish between recent and residual THC levels at the roadside.
4. Kyla’s Insight
From the perspective of a defence lawyer committed to the protection of the innocent, the ruling in Robertson represents a deeply troubling erosion of the principle that it is better for the guilty to go free than for an innocent person to be wrongly convicted. The most alarming aspect of this case is that the trial judge explicitly stated she had a reasonable doubt as to whether the appellant’s ability to drive was actually impaired by drugs despite then finding that the law is constitutionally sound because there is a correlation with impairment.
The law is essentially criminalising a biological status rather than a proven state of dangerous incapacity and then conflating the two in a manner inconsistent with the judge’s own ruling on the facts.
The court’s rejection of the constitutional challenge regarding overbreadth is particularly concerning for those who fear the net of the criminal justice system is being cast too wide. The court admitted that the law may capture a “narrow class of frequent or chronic users” who are not actually impaired but still register above the 5 ng/mL limit. This is an explicit admission that the law can convict individuals who are innocent of the actual harm the law seeks to prevent simply because they fall into a “reasonable proxy” for risk.
By ruling that perfect matching between the law’s effects and its purpose is not required, the court has effectively prioritized administrative efficiency and broad deterrence over the fundamental right of an individual not to be imprisoned for conduct that does not actually pose the risk targeted by the statute.
The idea that individualized risk assessment is not feasible as a justification for this bright-line THC concentration rule sets a dangerous precedent. From a civil liberties standpoint, the state’s inability to develop a more precise test should not grant it the license to bypass the requirement of actual proof of wrongdoing.
This shift suggests that the legal system is now willing to accept the wrongful conviction of unimpaired drivers as a necessary cost of regulating road safety, a direct reversal of the foundational values intended to protect the individual from the overreach of the state.
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.
