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
- ADP of the Week
- Decision of the Week
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
A lot of defence counsel feel that once the certificate of analysis is admitted, then there is no room left to challenge the results. This is not the case. If it can be shown that there was improper operation or malfunction, including problems with the observation period, then a question arises about the reliability of the sample.
The Supreme Court of Canada ruled in the case of R. v. Cyr-Langlois, 2018 SCC 54 that there must be actual evidence that a person can point to. Reviewing detachment video closely, especially looking at periods in the observation period where your client may be burping, regurgitating, or hiccuping, as well as pointing out breaks and gaps in the observation period, can raise these issues. The defence burden is only to raise an air of reality, and then it falls to the Crown to disprove it beyond a reasonable doubt.
2. ADP of the Week
The applicant was issued a 90-day administrative driving prohibition for Pproviding samples in excess of the legal limit. Pursuant to the officer’s statutory obligations, he submitted a report to the Superintendent of Motor Vehicles. The report to the Superintendent submitted by the officer referenced an attached narrative. However, the narrative was not printed until the day after the document was sworn. This reflected the error in Brandon v. Superintendent of Motor Vehicles.
Shortly before the hearing, the Superintendent received a supplemental package of disclosure, which included a supplemental report to the Superintendent. That document purported to be sworn, but the signature on the document and the badge number of the affiant did not match those of the original affiant on the original report to the Superintendent. Moreover, the officer who signed and swore to the supplemental report to the Superintendent was not the officer on whose opinion the notice of prohibition was issued.
Pursuant to section 94.3 of the Motor Vehicle Act, the officer whose opinion resulted in the notice of prohibition being served must be the officer to swear the report to the Superintendent. The Superintendent does not have the authority to consider sworn reports from other officers if a sworn report from the officer whose opinion resulted in service of the notice is not received.
Kyla Lee successfully argued the police did not comply with their statutory obligations to submit a properly sworn report to the superintendent.
The adjudicator accepted that, given the contradictions in the affiant’s identity, the officer had not complied with the statutory requirements.
The prohibition was revoked.
3. Decision of the Week
It’s not often we feature a decision to grant leave to appeal from the Supreme Court of Canada in this section, but today leave was granted on a very important decision. The case of R v Emereuwa, 2025 SKCA 83 was given leave to appeal to the Supreme Court of Canada.
The main issue that arises in Emereuwa is the proper mens rea for the refusal offence and whether the Crown must prove beyond a reasonable doubt that the accused intended not to comply with the demand.
In the Saskatchewan Court of Appeal, the Crown argued that proof that the refusal was intentional was not required. The Saskatchewan Court of Appeal disagreed and found that there must be proof of an intention to refuse. The court noted that an inference can be drawn from multiple unsuccessful attempts to provide a sample in the absence of evidence to the contrary. The court noted that it cannot be lightly concluded that Parliament intended to promote public safety by diluting a mental fault element in order to make prosecution of refusal cases easier. The Saskatchewan Court of Appeal noted that this risked eroding other fundamental principles of criminal law, such as the presumption of innocence and the need to consider only that conduct which is morally blameworthy.
4. Kyla’s Insight
To be honest, I’m not surprised this case was granted leave. I had hoped it wouldn’t be because there is, in my opinion, quite a strong statutory interpretation analysis. That analysis hinges on more basic principles of criminal law, such as the presumption of innocence and the need to not overly simplify prosecutions to the point that people who are actually innocent can be convicted.
Just because the Supreme Court of Canada grants leave on something doesn’t necessarily mean they’re going to overturn the decision. Given the pattern of decisions that have come out regarding the statutory interpretation of the post-2018 amendments to the Criminal Code, I don’t feel optimistic that they are going to decide this case in the same way the Saskatchewan Court of Appeal did.
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.
