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
If you are conducting an administrative license suspension hearing at the same time you’re dealing with a criminal case, it’s always important to be vigilant about the type of information you’re putting in for the administrative review.
While the administrative driving prohibition hearings are held in camera, the material submitted to the superintendent is not covered by privilege. I have seen occasions where police have obtained a production order for the evidence that was submitted in the RDP review hearing and then relied on that evidence as part of the case on criminal charges. While this is exceedingly rare, it is not impossible.
Moreover if your client is unsuccessful and is considering a judicial review of the adjudicator’s decision, then the need to be vigilant about what material was put before the superintendent becomes even greater. Once matters are filed in BC Supreme Court for a judicial review, they become matters of public record and are open season for the Crown or police to obtain without requiring a search warrant.
You should ask yourself and discuss with your client, in any case where the arguments on the administrative driving prohibition are borderline or will require evidence from the client, whether putting their version of events in an affidavit could hurt them down the road.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing an ASD test.
The applicant was pulled over by police and ultimately given an approved screening device demand. The first test registered a fail reading. When it came time for the applicant to provide a second sample, the officer asked the applicant whether she wanted her to use a different device. The applicant was not informed that the legislation required the officer to use a different device and so he told the officer it was fine. The officer then conducted a second test using the same device as was used for the first test.
The Motor Vehicle Act requires that a second test be conducted on a different approved screening device than the first test. As the officer did not use a different device, the officer was in breach of the Act. The language in the Act is unambiguous. Section 215.42 of the Motor Vehicle Act indicates that a second analysis must be performed with a different approved screening device. There is no statutory authority for an officer to permit somebody to waive their right to be given a second device, nor is there any statutory authority to conduct a second test on the same device.
Similarly the legislation is unambiguous that a prohibition must be revoked if the adjudicator is satisfied that the second test was conducted on the same approved device, regardless of whether somebody chooses to use the same approved screening device.
The statutory obligations on both the police and the adjudicator must be respected.
3. Decision of the Week
In R. v. Maniatis, 2026 ONCA 567 the Ontario Court of Appeal confirmed that the presumption of care and control is applicable even in an inoperable vehicle. The case arose after Mr. Maniatis was found by police in the driver’s seat of his vehicle following a collision with a streetlight in Toronto. While it was an agreed fact that the vehicle was inoperable, the court had to determine if the statutory presumption of operating a motor vehicle under s. 320.35 of the Criminal Code still applied.
The trial judge originally acquitted Mr. Maniatis, finding that because the car was broken and off the road, it posed no realistic risk of danger and therefore the presumption of operation was rebutted. His acquittal was overturned in the summary conviction appeal. The Court of Appeal ultimately held that the physical state of the vehicle does not change the legal presumption that an occupant in the driver’s seat is operating the conveyance.
The court’s decision turned on a strict textual and purposeful interpretation of the law, noting that the statute is structured to presume operation unless the occupant establishes they were in the seat for a purpose other than setting the vehicle in motion.
By specifying this single method of rebuttal, the court inferred that Parliament deliberately excluded other excuses, such as the vehicle being inoperable. The Court held that Parliament’s intention was to discourage intoxicated individuals from even placing themselves in a position where they might attempt to drive. Further, the court noted that allowing inoperability to rebut the presumption would lead to absurd results, whereby an intoxicated driver who crashes and destroys their car would be treated more leniently than a person who simply sitting in a functioning car in their driveway with no intention of moving it.
The Court noted the significant constitutional tensions regarding the presumption of innocence. The presumption of innocence generally requires the trier of fact to be convinced of every element of an offence beyond a reasonable doubt before a conviction can be entered, and a legislative provision violates this right if it permits a conviction despite the existence of a reasonable doubt regarding an essential element of the crime. Requiring a judge to presume operation simply because a person is in the driver’s seat even if the judge has doubts about whether the person actually could operate the vehicle infringes upon the presumption of innocence.
However, the Court of Appeal noted that the Supreme Court of Canada has previously upheld this specific infringement as a justified limit under s. 1 of the Charter. The justification lies in the pressing social problem of impaired driving and the inherent danger of combining alcohol with automobiles. Because the driver’s seat is specifically designed to give an occupant access to all vehicle controls, there is a rational connection between being in that seat and being in care or control of the vehicle. The Court concluded that while the law may allow for a conviction even where a trier of fact has a reasonable doubt about actual operation, this is a restrained parliamentary response aimed at public safety and deterrence, ensuring that the focus remains on the occupant’s purpose rather than their mechanical ability to move the car.
4. Kyla’s Insight
What an incredibly frustrating case. From my perspective it makes no good sense to apply the presumption in circumstances where the vehicle is inoperable. The court’s example of somebody who crashes their car and then remains in it being treated more leniently is frankly absurd.
The fact that the individual crashed their car and the driving that led to the crash would be the driving relied upon in the case. I suppose it may be that police may arrive too late to make an approved instrument demand or an approved screening device demand, or that samples may not be able to be obtained. These seem to be rare exceptions in most collision cases. How frequently, after all, do we even see collision cases where police don’t show up within three hours of the time of the impact?
The court also cites some examples about people who turn off the headlights of an inoperable vehicle, making it invisible to other cars. Again this seems to me to be so much of a remote speculative possibility that it doesn’t merit discussion and certainly doesn’t merit the legislative response that the Court of Appeal suggested we should have. Cars come with reflective devices on the outside and vehicles traveling towards those cars also have headlights.
I think this is a terrible way to justify people who are innocent ending up with criminal records for conduct that doesn’t realistically pose any meaningful public safety risk. It’s unfortunate the Court of Appeal chose to decide the case this way. I certainly would not have.
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.
