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
When dealing with civilian witnesses, particularly in British Columbia where there are limitations on the right to sue following an accident, it is always important to explore with the civilians any civil motivations they have for the testimony they give. Drivers of other vehicles, passengers in other vehicles, or people who suffered injury or loss as a result of a collision may be motivated, either consciously or subconsciously, to exaggerate their evidence in order to bolster their opportunity for a civil claim.
Court record searches can be used to determine, in jurisdictions where civil suits are permitted, whether a civil suit has been filed by the civilian witness. The response of the insurance company often provides a fruitful basis for cross-examination. Insurance companies love to file pleadings that accuse injured drivers of being negligent in their manner of driving, and this gives a helpful basis to explore various issues with the civilian witness.
2. ADP of the Week
The applicant was issued a 90-day driving prohibition for providing samples in excess of 80 mg%.
The applicant was involved in a motor vehicle collision, and police were called. When the officer arrived on scene, she spoke to the applicant and identified him. She then interviewed witnesses and ran the applicant’s driving history before making a mandatory approved screening device demand. The applicant provided a fail reading and was subsequently arrested for impaired operation.
He was transported to the RCMP detachment, where he provided two samples, more than three times the legal limit.
In the hearing Kyla Lee made arguments in relation to the swearing of the report to the Superintendent. Although the officer provided an initial report that was improperly sworn, a subsequent fax to the Superintendent of Motor Vehicles had the date and time of the swearing of the report crossed out and changed. Kyla Lee successfully argued that, absent some sort of explanation for what was meant by the change or what occurred to change the information about when the document was sworn, the adjudicator could not be satisfied that proper procedure had been followed in swearing the document. The adjudicator agreed.
The prohibition was revoked.
3. Decision of the Week
In R v Froehlich, 2026 SKCA 70, the Saskatchewan Court of Appeal addressed whether administrative roadside licence suspensions can be credited toward mandatory minimum driving prohibitions under the Criminal Code.
Under Saskatchewan’s The Traffic Safety Act (TSA), the appellants’ licences were immediately suspended at the roadside. Both eventually pleaded guilty to impaired operation of a conveyance and received the mandatory minimum sentence: a fine and a one-year driving prohibition.
The appellants argued that the time they spent under the TSA administrative suspension before their conviction should be credited against their one-year Criminal Code prohibition. The Court of Appeal dismissed the appeals, ultimately ruling that such credit is not permitted.
The court’s decision was based on two primary reasons. The first was grounded in statutory interpretation. The court found that s. 320.24(5.1) of the Criminal Code states that a prohibition order “takes effect on the day that it is made.” This language shows Parliament’s clear intention that the punishment must be served prospectively from the date of sentencing. This specific wording was found to displace the common law rule previously established in R v Basque, which had allowed for credit under older versions of the law that lacked this start date language.
While acknowledging concerns about double punishment (being suspended both before and after conviction), the court also noted that the TSA provides its own relief mechanisms, such as applying for early reinstatement via an ignition interlock program.
Concurring in the result, Justice Caldwell argued that a TSA suspension is an administrative regulatory action related to a conditional driving privilege, not a criminal punishment. He maintained that common law discretion to grant credit only applies when the pre-sentence restriction is a direct criminal law equivalent (like a bail condition). Because an administrative suspension for traffic safety is not sufficiently analogous to a Criminal Code prohibition, it cannot be used to reduce a mandatory minimum sentence decreed by Parliament.
Justice Drennan dissented, finding that the TSA suspension is a form of punishment because it is a severe deprivation directly triggered by a criminal charge. She interpreted the takes effect language in the Criminal Code as a mere administrative clarifier for tracking purposes, rather than a ban on awarding credit for pre-sentence time. Justice Drennan warned that refusing credit leads to disparate outcomes, where the total time a person is prohibited from driving depends on systemic trial delays rather than the gravity of the offence.
4. Kyla’s Insight
I’ll take a dissent on this issue. There’s already an Ontario court case that came to the same conclusion about the interpretation of the legislation from the Ontario Superior Court. The Saskatchewan case is another appellate-level decision.
Because there is a dissent, the door is open a crack to get this case to the Supreme Court of Canada. It is certainly an issue of national importance because every province and territory has some form of administrative penalty that goes alongside an allegation of impaired driving. The decision in Basque is also much different than the circumstances here so it would be helpful for the Supreme Court of Canada to clarify a question that was always left unanswered by Basque, specifically: the question of whether or not administrative license suspensions should be treated in the same way as a bail condition.
I’m not attracted to the majority’s reasoning that there are internal relief mechanisms for administrative license suspensions because there are also internal relief mechanisms for bail conditions. If the availability of bail review and bail variations did not lead the Supreme Court of Canada to find in Basque that impaired driving prohibitions can be reduced based on time served on restrictive bail conditions related to driving, it is unclear to me why or how it would be any different just because there are administrative review mechanisms for the administrative suspensions.
I hope leave is sought on this case. The statutory interpretation angle taken by Justice Drennan is also quite interesting and it would be interesting to see the Supreme Court of Canada chime in on it.
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.
