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
Think about the tasks your client may have engaged in, either at the roadside or dealing with police. Oftentimes people are engaged in tasks that require a high degree of fine motor skill coordination, such as inflating a tire or attempting to remove lug nuts. Even removing a license from a wallet that has too many cards in it and handing it over to the police.
The more you can point to what your client did that was consistent with normal sober behaviour and good fine motor skills, the more doubt you can raise with respect to indicia of impairment. Don’t forget to cross-examine witnesses and officers who saw this, not only about the fact that the task was performed to a normal and appropriate standard, but also about each of the individual steps required to perform that task. This will solidify the picture for the judge of how much coordination and skill was in fact required to carry it out.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to comply with an ASD demand.
The applicant was riding his motorcycle when he was involved in a motor vehicle collision. His motorcycle went into the ditch. After some time attempting to extricate the motorcycle from the ditch, the applicant was approached by a group of other motorcycle riders. They helped him, unsuccessfully, attempt to remove the vehicle from the ditch and then offered him a drink, which the applicant accepted. The applicant thanked them for their assistance and indicated he would continue to try to remove the vehicle himself.
Rather than attempt to remove the vehicle from the ditch, the applicant simply began riding his motorcycle in the ditch. As he was riding in the ditch, he was approached by an officer. An ASD demand was made and the applicant did not provide a suitable sample into the device.
In the review hearing, lawyer Kyla Lee successfully argued that the applicant was not a driver within the meaning of the Motor Vehicle Act. In order for an individual to be a driver, as that term is defined in the Act, a person must be on a highway or industrial road. A highway or industrial road is any place or passageway to which the public has access or is invited for the purposes of parking or servicing vehicles, and any lane, street, road, or right of way designed for the passage of vehicles. Since a ditch met neither of those definitions, it did not constitute a highway.
The adjudicator agreed and the prohibition was revoked.
3. Decision of the Week
In R. v. Bleck, 2026 ONCA 576 the Ontario Court of Appeal rendered a rare decision on the use of Section 13 of the Canadian Charter of Rights and Freedoms and the evolving sentencing landscape for serious driving offences following legislative amendments.
The case arose out of a hit-and-run incident, where a cyclist suffered catastrophic injuries. The primary trial issue was the identity of the driver—whether it was the appellant, Jesse Bleck, or his friend, Ahmad Jamal. While the jury ultimately convicted the appellant, on appeal the accused argued that the judge erred in permitting the cross-examination of a witness on their knowledge of self-incrimination protections.
The Section 13 issue arose because Mr. Jamal, a key witness, provided several conflicting accounts of who was driving. At the preliminary inquiry, he initially identified the appellant as the driver, but after being advised of his Section 13 Charter rights, he reversed his testimony and claimed he was the driver. At trial, the judge permitted the Crown to cross-examine Mr. Jamal on his knowledge of these protections to explore whether this awareness motivated him to fabricate a confession to shield the appellant.
The Court of Appeal upheld this decision, finding it to be one of the “rare circumstances” where such cross-examination is permissible. Generally, cross-examining a witness on their knowledge of Section 13 is prohibited because the prejudicial effect usually outweighs the probative value, often resting on the false assumption that a protected witness is more likely to lie. However, the court found that Jamal’s direct and observable shift in testimony immediately after being advised of the protection, combined with independent evidence that he had previously offered to take the charge for the appellant to get into rehab or because the appellant had children, tipped the scales in favour of admission. The trial judge’s careful limiting instructions ensured the evidence was used strictly for assessing credibility.
Regarding sentencing, the appellant challenged his global sentence of four years and six months in prison, arguing it was demonstrably unfit. It represented the highest known penalty for failing to remain at the scene of an accident causing bodily harm. The Court of Appeal dismissed this ground, emphasizing the impact of Bill C-46, which increased the maximum penalty for this offence from 10 to 14 years in 2018. This legislative change signalled to the courts that serious driving offences should attract more significant penalties than in the past.
The court affirmed the sentencing judge’s determination that the appropriate range for this offence, in light of the new legislative ceiling and the specific aggravating factors of this case, was now between three and five years. These aggravating factors included the appellant’s prior related driving convictions, his disregard for court orders, and his prolonged and calculated attempt to evade responsibility for six months while fully aware of the victim’s catastrophic injuries. The court concluded that proportionality sometimes required a sentence that exceeded historical ranges, especially when Parliament had signalled a need for increased emphasis on denunciation and deterrence.
4. Kyla’s Insight
Honestly I’m a little surprised reasonable doubt was not found here given the obvious motive the other individual had to lie about whether he had been driving the vehicle and the various versions of events. This case is nonetheless interesting because the Section 13 cross-examination question comes up so rarely that finding an example of a situation in which somebody is cross-examined about their knowledge of Section 13 is helpful to have in anyone’s arsenal.
In terms of the court’s comments on the sentencing range, this is important information for any lawyer dealing with driving offences to know.
Failing to remain at the scene of an accident where bodily harm or a death ensues has always been treated severely by the courts. The increase in the maximum available sentence being interpreted as signalling that the starting point for the range should go up is significant and should be borne in mind when advising clients about the risk they are taking on conviction or in attempting to take a case without strong defences to trial (particularly where the Crown may be offering a plea with a custodial sentence below the range or at the lower end of 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.
