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
- The issue had no significance or effect on the outcome of the appeal, because Mr. Refeah was acquitted, and so the question was moot.
- The court said it couldn’t properly resolve this issue on the record because there were no submissions from Mr. Refeah, as Mr. Refeah had no stake in arguing the interesting legal question for the purposes of informing other courts in other cases.
- The Crown finally argued that the issue not being addressed by the Appellate Court would make the court’s interpretation evasive of review, but the Court of Appeal rejected that, finding that if other courts applied the trial judge’s ruling, then the Crown would be able to litigate it in a future case where it genuinely affected the results.
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
Proactive steps taken by your client can do wonders in your case. Specifically if you are defending a client who is accused of impaired driving or any driving offence, for that matter, having them proactively engage in counselling; quit alcohol and drug use; start volunteering in the community; and get letters of support from friends and family to provide them to you on an ongoing basis can be useful.
Not only is it helpful in negotiations with Crown counsel to try to demonstrate why it is no longer in the public interest to proceed with charges, but it also papers your file extensively if, after trial, your client is convicted and you need to conduct a sentencing hearing. This is particularly so where the charges are more serious, such as those involving bodily harm or fatalities.
The opportunity to pitch a conditional sentence order exists but that sentence is only given to those who demonstrate significant steps toward rehabilitation.
And if your client is acquitted, nobody ever suffered from taking steps to improve their life in the community around them.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to comply with an approved screening device demand.
At the time the applicant was pulled over, the officer detected an odour of liquor emanating from the vehicle. The driver drank from a water bottle, an amount which the officer felt was more than a normal person would ordinarily drink. The officer claimed to have shined his flashlight on the applicant’s neck and yet was able to tell the driver’s eyes were bloodshot. The driver explained that his wife was the one who had been drinking and that she was the source of the smell.
When asked to produce his license and registration, the driver advised that he did not have his driver’s license but provided his driver’s license number from memory. Inadvertently he provided the wrong registration document, which belonged to a trailer. When the officer explained to him that he had handed over the wrong document, the driver explained that he has many vehicles.
Based on all this, the officer concluded the driver had alcohol in his body and formed a suspicion. He then read the approved screening device demand. The applicant refused to comply with the demand on appeal.
Kyla Lee successfully argued the prohibition was to be revoked as the officer’s suspicion was not reasonable. Many of the grounds relied on by the officer were at best neutral factors, including drinking water and producing trailer insurance documents, which would logically be held in the glove box of the truck used to tow the trailer. The officer’s claims of bloodshot eyes were not believable in light of the fact that the officer explicitly described pointing the flashlight at the neck. In addition, while there was an odour of liquor in the vehicle, it was explained by both the driver and his wife, confirming she was the one who had consumed alcohol. Absent an odour of liquor on the breath or an admission of consumption, reasonable suspicion did not exist. The adjudicator agreed.
The prohibition was revoked.
3. Decision of the Week
An interesting decision this week out of the Ontario Court of Appeal in the appeal on R. v. Refeah 2026 ONCA 438. Mr. Raffaele was convicted of dangerous driving, causing bodily harm and leaving the scene of an accident. He appealed his convictions. In the Ontario Superior Court judgment, the judge made a determination about the mens rea for the offence of refusal. Mr. Refeah was acquitted of the refusal offence, so his appeal did not pertain to that. In the Superior Court reasons, the Superior Court judge determined that the reasonable excuse provision in the Criminal Code requires only that an accused person raise an air of reality to the reasonable excuse, but that the burden of proof rests with the Crown to disprove it beyond a reasonable doubt once that is done. This is inconsistent with prior jurisprudence that put the burden of proof on the applicant on a balance of probabilities. However, the analysis in the Superior Court decision is worth reading. It breaks down why subsequent amendments to the Criminal Code have eliminated this requirement.
The Court of Appeal, however, declined to do so. The Court of Appeal turned down the Crown’s request for three reasons:
The issue had no significance or effect on the outcome of the appeal, because Mr. Refeah was acquitted, and so the question was moot.
The court said it couldn’t properly resolve this issue on the record because there were no submissions from Mr. Refeah, as Mr. Refeah had no stake in arguing the interesting legal question for the purposes of informing other courts in other cases.
The Crown finally argued that the issue not being addressed by the Appellate Court would make the court’s interpretation evasive of review, but the Court of Appeal rejected that, finding that if other courts applied the trial judge’s ruling, then the Crown would be able to litigate it in a future case where it genuinely affected the results.
So for now, the lower court decision remains good law on the most important point to refusal cases: that the Crown bears the burden of disproving any reasonable excuse raised with an air of reality.
4. Kyla’s Insight
Very interesting outcome where a court declines to step in on an issue that quite obviously has significance to cases across the country. I don’t know that I necessarily agree with the Court of Appeal that just because Mr. Refeah would have been acquitted either way, and the issue was moot, that they should not have touched the issue. It’s an important issue, and clarity from an appellate level court at this stage is quite necessary. The Refeah case is being followed across the country, and for good reason. The logic of the trial judge on the issue of who bears the burden and what burden it is on reasonable excuse tracks the statutory history and amendments to the Criminal Code in a reasonable way. But just leaving it to some other case and some other Crown appeal puts accused individuals on a shaky foundation where, if they do argue Refeah and its application, they have to expect that if they are acquitted, the Crown will likely appeal that acquittal. You’re almost hedging your acquittal against the probability of a Crown appeal, and thus prolonging of the proceedings. This may make people reluctant to argue for acquittals on the basis of the application of Refeah and instead pursue other issues. Especially because people often don’t have the resources to contend with both a trial and a subsequent appeal. I worry about the long-term harm that this approach causes, contrasted with the short-term harm of opining on such an important issue.
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.
