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
A lot of people shy away from asking open-ended questions in cross-examination. There is a time and a place for an open-ended question and their careful use can actually become very effective. The best way to craft a question that involves the use of an open-ended question is to build the set-up leading toward it.
Once you’ve built the lead-up such that the witness has no reasonable means of answering the open-ended question in any way that is beneficial to their case, a well-placed “why” or even a “why on earth” can expose a lack of consideration of legal issues or the lack of application of a proper legal test by a police officer.
Typically when I intend to set up in advance of using an open-ended question, I will go through each of the different legal rules. For example, in a case involving an arbitrary arrest, I will identify all the circumstances in which the arrest would not have been arbitrary and rule those out through a traditional cross-examination. Then I ask the officer, “If none of those things were the rationale for making the decision to arrest in this case, why did you make that decision?” Because there can be no lawfully justifiable answer at that point. An open-ended question leaves the door open for the witness to articulate that they truly had no justification for their conduct, to provide a justification for their conduct that is not grounded in law and is in fact unlawful, or to simply become flustered.
2. IRP of the Week
The applicant was issued a 90-day immediate roadside prohibition for refusing to comply with an ASD demand. The police conducted a motor vehicle accident and in the course of the investigation formed grounds to suspect there was alcohol in the applicant’s body. The suspicion was formed by a sergeant who felt that the applicant was not able to locate his driver’s license, asked where the vehicle keys were and placed the vehicle keys in his pocket, and stuttered his words and described that he was out to get burgers.
These factors gave a basis to believe there was alcohol in the body. There was also an admission to consuming a single beer nearly four hours prior.
The sergeant who formed the suspicion did not make an approved screening device demand. In the police evidence she explained that the demand was not made because there needed to be a 15-minute waiting period due to recent food consumption. After 25 minutes a constable arrived on scene and read the demand.
Kyla Lee successfully argued that the police justification for the delay was fabricated after the fact. Not only was a bald reference to going out to get burgers and the presence of uneaten burgers in the vehicle not sufficient to justify a delay for food consumption, but the appropriate waiting period for food consumption is 5 minutes, not 15. Moreover the fact that the demand was not made once the 15 minutes were up suggested that there was some other basis for having not made the demand. When the constable arrived with two approved screening devices, it gave the appearance that the reason for the delay was the impermissible reason of not having an approved screening device present. The equivocal indicia were explained by the fact that the applicant had been involved in a motor vehicle collision and was slightly shaken up.
The adjudicator agreed the demand was not valid and failed to comply with the requirements of the Criminal Code.
The prohibition was revoked.
3. Decision of the Week
You have already probably read the headlines about R. v. Madi 2026 ONCJ 285. The accused was charged with drug-impaired driving and possession of methamphetamine after being discovered slumped over the steering wheel of his running vehicle. As with many drug-impaired driving cases, a critical part of the investigation was the Drug Recognition Evaluation (DRE) conducted at the police station. It was captured on video but the video was not preserved.
During the trial, a significant issue arose regarding lost video evidence of this DRE procedure. Although police officers testified they believed the room was being recorded—and even cautioned the accused as such when he was in custody—the Crown repeatedly informed the defence prior to trial that no video existed, claiming the technology had not yet been installed. However, mid-trial testimony revealed that the room did have recording capabilities at the time of the arrest, but the footage had been erased because the one-year retention period had expired.
The defence argued there had been a breath of the Crown’s duty to disclose and preserve relevant evidence under Section 7 of the Charter. The Crown must preserve and disclose all relevant information to allow an accused to make a full answer and defence. When evidence is lost, the Crown bears the burden of proving that the loss was not the result of unacceptable negligence. In this case, the court found the Crown had engaged in unacceptable negligence by permitting the video to be destroyed after the expiration of the retention period when it had been specifically requested while it existed. Further, the Crown provided no explanation for why they incorrectly informed the defence that the video did not exist.
The court concluded that this failure resulted in substantial prejudice to Mr. Madi’s right to a fair trial. The unique facts of the case made the video particularly important. The accused disputed the officer’s testimony regarding his physical performance on balance and coordination tests, and the video would have provided the only objective record to challenge the officer’s credibility. The court rejected the Crown’s argument that cross-examining a second officer present during the DRE was an adequate substitute, noting that the second officer was not a DRE expert and had her own body-worn camera turned off. Consequently, the court ruled that a stay of proceedings was the only appropriate remedy to address the prejudice caused by the lost evidence.
4. Kyla’s Insight
This case made the rounds because it involved the same Crown prosecutor that had recently been criticized by the court for engaging in inappropriate conduct with a police officer by suggesting that he was a poor witness and implying he should lie under oath.
You can’t help but wonder whether the Crown’s explanation, that the video did not exist to begin with, and the circumstances of her prior conduct had an impact on the judge’s ruling.
However, this case is not distinguishable on that basis by any means. There are plenty of cases arising in the law step. This case is an important reminder for defence on the significance of making early and precise disclosure requests and an important reminder for the Crown of taking steps quickly to respond to those requests so that evidence does not become destroyed under police retention periods.
It is likely this issue will become more common as retention periods and body-worn camera footage start to collide with one another.
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.
