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
Never give up.
The beautiful thing about impaired driving cases is that you do not have to just advance one argument or theory of the case. There are technical requirements for the admissibility of certificate evidence, scientific challenges available to the operation and maintenance of the approved instrument, challenges under the Charter to grounds for demands and detentions, and so much more.
Just because you do not succeed on one argument does not mean you should throw in the towel. Never place all your eggs in one basket in these cases. With the ever-evolving law, committing to only one trial strategy can mean you lose the chance to take advantage of appellate decisions that come out as your case is progressing.
2. IRP Decision of the Week
Prohibition Revoked:
Police received a call earlier in the night about a vehicle that had trouble parking. The driver exited the vehicle and stumbled into a nearby restaurant. Police kept an eye on the vehicle and several hours later, observed it pulling out of the parking stall. A traffic stop was conducted.
The detaining officer detected indicia of impairment and smelled an odour of liquor on the driver’s breath. The detaining officer requested another officer attend with an ASD. That officer arrived, formed his own suspicion that there was alcohol in the body of the driver, and read an ASD demand.
The driver attempted to provide a sample into an approved screening device but was unsuccessful.
The applicant provided evidence, supported by witnesses, that he had consumed a lot of food that night. He had a full stomach that was pushing on his diaphragm. In addition, he provided medical evidence to the effect that he had a diagnosed asthma condition that was aggravated by environmental factors at the time of testing. He indicated that he was making a genuine effort to blow but was unable to do so due to either or both of the issues affecting his breathing.
Kyla Lee successfully argued that the applicant did not fail or refuse to comply with the demand for samples. The applicant had a medical issue exacerbated by environmental factors and contributed to by the full stomach impacting his ability to successfully blow. In addition, the police evidence related to the efforts to provide a sample was internally inconsistent and unreliable as the officer claimed there were certain status messages on the device that did not correspond to the alleged behaviour.
The prohibition was revoked.
3. DUI Decision of the Week
In R v Patterson, 2026 SKCA 25, the Court of Appeal for Saskatchewan remitted a case for a new trial after a successful Crown appeal from acquittal at the superior court level. Mr. Patterson attempted to seek leave to appeal to the SKCA.
At trial, both the Crown and the defence incorrectly assumed that it was necessary to tender the certificate of analyst for the Crown to prove its case. Because the Crown provided this certificate only 13 days before trial, the trial judge ruled that “reasonable notice” which he determined should be at least 61 days had not been given. Consequently, the certificate was excluded, and Patterson was acquitted.
On appeal, the Crown was permitted to change its position, arguing that the certificate was not actually required. This was consistent with recent Supreme Court of Canada jurisprudence in R v Rousselle and R v Wright. The appeal judge agreed, overturned the acquittal, and entered a conviction. Mr. Patterson then sought leave to appeal to the Court of Appeal on several grounds, including that a conviction was substituted for his acquittal.
The Court of Appeal dismissed Patterson’s application for leave to appeal regarding the necessity of the certificate and the notice period. Specifically, they noted that the law does not prevent a party from changing or resiling from its legal strategy if the original position was based on an erroneous interpretation of the law. There was no question of law that needed to be resolved on the issue of adducing the certificate into evidence due to the recent Supreme Court of Canada decisions.
A new trial was nevertheless ordered. While the Court of Appeal agreed the trial judge erred in law, it found the summary conviction appeal judge erred by entering a conviction instead of ordering a new trial. A conviction should only be substituted for an acquittal in the “clearest of cases” where all facts necessary for guilt are undisputed. This case did not meet that high threshold.
Because the Crown erroneously insisted the certificate was necessary at trial, the legal issues were narrowed prematurely. This likely led the defence not to pursue Charter remedies at the original trial which otherwise would have been pursued and could have resulted in exclusion of evidence. It would be unfair to convict Mr. Patterson without permitting him to fully present his case when the Crown’s legal error induced his decision to abandon those issues.
A new trial was warranted in the interests of justice.
4. Kyla’s Insight
This is exactly why you never give up an argument. The fact that there were other angles that could have been pursued but were not pursued because they became moot once the breath test readings were excluded due to failure to comply with the statutory provisions preserved Mr. Patterson’s ability to have a new trial.
Ensuring a person identifies and articulates clearly all the legal strategies they intend to employ means that even if there are successful Crown appeals, the remedy of a new trial is available. Every time you run an impaired driving case you should not just be thinking about the case you’re handling but setting it up for anything that might happen in the future.
This case is also a great example of the ever-evolving state of the law in impaired driving and the innovativeness of impaired driving lawyers in using even unsuccessful decisions to the advantage of their clients.
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
