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 jurisdiction allows it, it can be helpful to download and use the recordings of your cross-examination of officers. Not only can this help you with preparation for a trial continuation so you can play the evidence in advance and re-visit what the actual feeling was in the courtroom, but you can also use it to study your questions and answers and identify where you have room for improvement.
By replaying and re-listening to your cross-examinations you will know how your tone, speed, and delivery have impacted how you asked a question and how the answer came out. You will also identify better opportunities for impeachment and witness control in the future.
2. IRP of the Week
The applicant was issued a 90-day immediate roadside prohibition for failing an approved screening device test. The applicant had been in a motor vehicle collision. Police attended. They alleged the applicant was unable to follow basic instructions, required instructions multiple times, but was also cooperative.
The police report had no detail to support any difficulty following instructions or responding to questions; the applicant had agreed to all demands and complied quickly. He answered all questions such as whether he had been the driver, whether he had been drinking, and whether he understood his rights normally.
The officer claimed in the Report to Superintendent that the Petitioner both did not request a second test and withdrew his request to take one. In the Narrative, the officer indicates that the request was made but then withdrawn, with no detail about how that actually occurred.
The applicant disputed the prohibition. He provided evidence that he complied with all demands and requests and did not refuse any second test. He indicated he was not given any chance to take any second test or told about it.
Kyla Lee successfully argued that the applicant did not get the second test he was entitled to.
The adjudicator accepted that, given the contradictions in the evidence, the officer’s evidence was not reliable and that the applicant was not given any second test opportunity.
The prohibition was revoked.
3. Decision of the Week
In R. v. Malo, 2026 QCCQ 2016, the cost addressed the requirements for reasonable and probable grounds in impaired driving arrests and the potential for police credibility issues to result in the exclusion of evidence.
Mr. Malo was intercepted after a police officer observed his vehicle straddling the centre line. The arresting officer reported smelling alcohol. He also claimed Mr. Malo had glassy eyes and slurred speech. Based on these observations, without utilizing an Approved Screening Device, the officer proceeded directly to an arrest for impaired driving.
The defence argued that the officer lacked reasonable and probable grounds and possessed, at most, a reasonable suspicion that would have only justified a demand for an ASD test.
The Court expressed significant concerns regarding the credibility and reliability of the police evidence. Under cross-examination, it was revealed that Officer Ménard drafted his report by basing it on a previous, unrelated impaired driving file, a practice the judge described as unacceptable and imprudent.
Several errors in the police testimony further undermined the prosecution’s case. The officer claimed the driver removed a key from the ignition and placed it on the dashboard, despite the vehicle being a Tesla, which does not use a traditional key. The officer initially suggested the driver failed to stop at the designated line but later admitted the driver had complied with instructions.
The Court found it unthinkable that an officer who truly believed they had grounds for an impaired driving arrest would ask the suspect to move their vehicle before taking them into custody.
While the prosecution sought to use in-car camera footage to corroborate the officer’s claims of slurred speech, the Court refused to consider the recording. The judge noted the video began 23 minutes after the arrest and contained non-spontaneous statements made in response to police questioning.
The Court concluded that the symptoms amounted only to reasonable suspicion. By failing to use an ASD, the police conducted an illegal and arbitrary arrest.
Consequently, the Court excluded the evidence under section 24(2) of the Charter, emphasizing that an arrest must be justified both subjectively and objectively.
4. Kyla’s Insight
From the perspective of a defence lawyer, Malo is a textbook example of how rigorous cross-examination and a focus on police credibility can dismantle a Crown’s case and secure the exclusion of evidence under the Charter.
Remember that police cannot bypass the ASD when their observations are ambiguous. Failing to use an ASD when only suspicion exists renders the subsequent arrest arbitrary and illegal.
One of the most damaging revelations was that Officer Ménard drafted his report by copying from a previous, unrelated impaired driving file. This is a gold mine for the defence and this case is important to keep in hand for any time that happens. When an officer uses a boilerplate approach to describe symptoms, it suggests they are fitting the facts to the charge rather than recording objective reality. The judge’s description of this practice as unacceptable and imprudent serves as a warning that such shortcuts will compromise the reliability of the entire police testimony and is a helpful caution that can be relied on in the future.
Ultimately, this case demonstrates that when police conduct is worrisome and questionable, the only appropriate remedy is the exclusion of evidence.
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.
