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
Binding authority is only binding until it isn’t.
Oftentimes you may find yourself researching an argument or issue only to discover an appellate authority that rules against your intended argument on the issue. If you feel it is wrong, it is useful to spend some time thinking about why it is wrong. Perhaps, particularly when it comes to dated authority, it is inconsistent with cases that have been decided since. Look outside the impaired driving regime especially on Charter analysis, as the issue may have been developed in drug or firearms cases.
Even if you cannot find any subsequent authority that could call into question the ongoing precedential value of the earlier case, consider whether there are legal principles or angles through which you can come at the issue that were not considered by the earlier court.
And when all else fails, you can always argue that it is just wrongly decided based on the well-known authority of R. v. Gut Check, which states that if it feels wrong, perhaps it actually is.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing an ASD test.
The applicant’s wife called the police to report that he had been drinking and subsequently drove. She provided his location through her phone tracking of where he was. Police located the applicant, who had two open beers in the vehicle. He admitted consuming alcohol within the preceding five minutes.
The officer made an approved screening device demand. The test registered a Fail reading.
The applicant provided evidence that, although he had consumed eight beers that day, he had consumed them over a lengthy period of time. His counsel, Kyla Lee, provided a calculation of his blood alcohol level using the Widmark formula, that demonstrated that once elimination was factored in, he would not have exceeded 80 mg% at the time of driving.
The adjudicator accepted the calculations and the applicant’s evidence of his alcohol consumption and found she was satisfied his BAC did not exceed the legal limit at the time of driving.
The prohibition was revoked.
3. Decision of the Week
In R. v. Janjua, 2026 ONCJ 527, the Court excluded the accused’s admissions to driving which were made both to the paramedics and breath technician.
Police arrived after a report of a single-vehicle accident into a hydro pole. An off-duty officer saw two men emerge sequentially from the driver-side door, but gave generic descriptions of both occupants. The police arrived shortly thereafter and ordered the accused not to go anywhere.
Paramedics assessed the accused in the presence of police. During the assessment, they asked him who drove the vehicle. Mr. Janjua admitted to being the driver. The officer made an ASD demand, which registered a Fail. However, after the Fail reading the officer did not read the accused his Section 10(b) rights for another twenty minutes. Subsequently, Mr. Janjua spoke with a lawyer.
After speaking with the lawyer, Mr. Janjua was taken to the breath technician. The technician asked him who was driving. Mr. Janjua again admitted driving.
The Court concluded that police must inform detainees of counsel rights immediately upon detention absent urgent safety risks or statutory exceptions. There was no operational necessity for the 20-minute delay in reading the right to counsel. This unjustified delay constituted a clear breach of section 10(b).
The roadside admission was contextually and temporally connected to the 10(b) breach. The subsequent statements remained connected because the breath technician provided no secondary caution, preventing a fresh start. The Court characterized the breach as serious and at the higher end of the spectrum. The impact on Charter interests favoured exclusion because the breach deprived Mr. Janjua from knowing his right to remain silent. Society’s interest in adjudication only mildly favoured admission because the Crown had made a strategic decision not to call the passenger as a witness when the passenger could have resolved the question of who was driving. Balancing the factors, admitting any of the statements would bring the administration of justice into disrepute. Without the admissions, the vague in-dock identification from the off-duty police officer failed to prove driver identity beyond a reasonable doubt.
4. Kyla’s Insight
A lot of counsel would look at a set of facts where somebody admitted to being the driver again after speaking to counsel and conclude that there was no ability to challenge that statement. Nevertheless, the court found in this case that failing to provide a police caution after the conversation with counsel when an inculpatory admission had already been made prevented the implementation of the right to counsel from constituting a fresh start.
The court accepted the accused’s evidence that he believed that because he had already made that admission to the police, the cat was already out of the proverbial bag. Most defence lawyers can likely surmise that the accused was told in the initial lawyer phone call not to talk to the police. They can also surmise that any statements he’d previously made may not be admissible against him, whereas things that he said after the phone call would likely be admissible against him.
Of course, a court cannot peer into what advice somebody was given, nor can it infer it. This is why, despite the fact that everybody knows what was likely said to this accused, the court had to come to the conclusion it did.
Also bold of counsel was the decision to point out the Crown’s failure to call the passenger as a witness. One can reasonably suspect that the Crown’s decision not to call the passenger as a witness was likely because the passenger would have been an uncooperative witness. Alternatively, it would give the accused the opportunity to point the finger at the passenger as the potential driver. There are mechanisms in the Criminal Code for the Crown to address a witness who suddenly implicates himself as the driver or to compel an uncooperative witness to come to court or respond to questions. Those processes tend to eat up a lot of court time, which is an oft-scarce resource. Again, not something the court can actually rely on.
A bit of a damned-if-you-do-damned-if-you-don’t situation for the Crown, but clever and bold work by trial counsel.
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.
