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
In a blood or urine case, disclosure tells you what the lab says it found in your client’s sample. It tells you very little about whether the lab itself is reliable. Since R. v. Gubbins, 2018 SCC 44, Crown treats historical and systemic records as third-party records. Getting them through the court means an O’Connor application and a showing of likely relevance.
Freedom of information has no relevance threshold. You do not have to explain why you want the records. That makes it the best tool for investigating systemic failings.
Police samples in BC generally go to the RCMP National Forensic Laboratory Services. That request goes to the RCMP under the Access to Information Act, and the fee is $5. Hospital blood is analyzed by a health authority lab. That request goes to the health authority under the Freedom of Information and Protection of Privacy Act, and the fee is $10. Your client can request their own file from either body with no application fee.
RCMP lab sites are accredited by the Standards Council of Canada to ISO/IEC 17025:2017, the international standard for testing laboratories. Each site has its own published scope of accreditation. Confirm which site did the analysis. Then check that the site was accredited on the date of analysis and that its scope covers the testing performed.
Hospital labs in BC are accredited through the Diagnostic Accreditation Program of the College of Physicians and Surgeons, under ISO 15189. That is a medical standard, not a forensic one. A hospital alcohol result was produced for treatment and not for court.
Build the request around what the standard requires the lab to keep:
Accreditation assessment and reassessment reports, with every finding of non-conformity and the lab’s response
Any correspondence about suspension, withdrawal or reduction of scope
Internal audit reports and management review minutes
Non-conforming work reports and corrective action records, including amended or recalled reports
Proficiency testing results, including failures
Validation studies and measurement uncertainty calculations for the method used
The operating procedures in force on the date of analysis, with version history
Calibration and maintenance records, plus certificates for the reference standards
Training, competency and authorization records for the analyst
Complaints received about the toxicology section
Sample storage temperature logs and backlog or turnaround data
Limit the request to a date range around the analysis, such as two years on either side. Ask for records about the lab and not about individuals. Both steps reduce delay and redactions.
File on the day you are retained. RCMP access requests are slow, and trial dates will not wait.
Use what you get. A documented proficiency failure or an unresolved non-conformity gives you the likely relevance you need for an O’Connor application. It also supports an application under s. 320.32 of the Criminal Code to cross-examine the analyst on the certificate.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for failing two breath tests.
The applicant was reported to police as a possible impaired driver. He was stopped by police. When asked about drinking, the applicant denied drinking. He was given an approved screening device demand, which registered a Fail reading. Before the reading, multiple attempts were made, each resulting in insufficient flow readings.
The applicant provided evidence, supported by witness statements and medical records, that he does not drink alcohol and is medically incapable of consuming alcohol due to a chronic illness.
Kyla Lee argued the results were not an accurate reflection of his actual BAC and that the devices were malfunctioning. The corroborated and well-documented evidence of the medical condition and the day’s activities was more reliable than the police account.
The adjudicator agreed and the prohibition was revoked.
3. Decision of the Week
In R. v. Jones, 2026 SKKB 160 the Saskatchewan courts took another run at the immediacy requirement for ASD testing.
Shortly after 5:00 a.m. on April 27, 2024, a cyclist was found unconscious on a road in Kindersley, Saskatchewan. He died. The man who found him was Mr. Jones’s father, who went looking after his son came home with a swollen face and a truck with deployed airbags. The father told police he believed his son was the driver.
Cpl. Fillion stopped at the detachment to pick up an approved screening device and went to the Jones home. At 6:23 a.m. he arrested Mr. Jones for failing to remain at the scene of an accident causing death. Mr. Jones began breathing heavily when he heard the cyclist had died. Cpl. Fillion smelled liquor and was “quite certain” it was coming from Mr. Jones.
He did not make an ASD demand. He told Mr. Jones they would take things slowly and explained his rights in plain language. By 6:26 Mr. Jones was in the back of the police vehicle. Cpl. Fillion then stood outside and talked with the father for two minutes. He got back in, read the right to counsel from a card and had Mr. Jones blow in his face. He asked whether Mr. Jones had anything to drink, a question he testified he already knew the answer to and asked “to gauge people’s credibility”. The demand came at 6:31. The fail came at 6:33.
Mr. Jones brought a Charter application on four grounds. Three were dismissed. The father was not a state agent when he went inside to bring his son out. The warrantless seizure of the truck was authorized by s. 489(2)(c) of the Criminal Code. There was no reasonable expectation of privacy in text messages the recipient chose to show police. However, the police breached the immediacy requirement for the ASD.
The Court found that the reasonable suspicion was formed at 6:23, which left eight minutes to account for before the demand was read. Applying R. v. Breault, 2023 SCC 9, the Court excused four of them. The first three were excused because the arrest on a “related but separate charge” and the need to advise Mr. Jones of his right to counsel was an unusual circumstance. The judge had “no issue” with the decision to “slow-walk” the rights and warnings given how emotional Mr. Jones was. The Court also excused the reading of the rights from the Charter card, which took under a minute.
The other four minutes were not excused.
This delay was not related to the use of the ASD, the reliability of the result, safety considerations, or any other unusual circumstance. Rather, Cpl. Fillion appeared to have used that time to attend to administrative matters, including informing Gordon of next steps, thanking him for all he had done, and to advance his investigation by solidifying his grounds and gauging Mr. Jones’s truthfulness.
That was a breach of ss. 8 and 9. The court then admitted the evidence under s. 24(2). The officer’s approach reflected a negligent understanding or appreciation of Charter standards, which favoured exclusion it only did so on medium strength. The impact on Mr. Jones favoured exclusion with substantial strength. Society’s interest strongly favoured admission. On balance the demand was properly grounded and the unjustified delay was only four minutes.
4. Kyla’s Insight
The court was right about the last four minutes. I disagree about the first four.
Breault is clear about where unusual circumstances come from. They cannot arise from utilitarian considerations or considerations of administrative convenience. Moreover, the determination of what constitutes unusual circumstances must be grounded primarily in the text of s. 254(2)(b).
Advising a person of his rights on a different charge has nothing to do with the device or the reliability of the result. It is not a safety concern either. The Saskatchewan Court of Appeal said what an officer must do in R. v. Westgard, 2025 SKCA 53:
Once Cst. Rathgeber had decided to make the ASD demand under s. 320.27(2), that needed to be his priority, subject only to ensuring his own safety, the safety of the public, and the reliable operation of the ASD.
The ASD should have taken precedence. Cpl. Fillion had the device with him. He had gone to get it because he expected alcohol to be involved. The test took two minutes once he made the demand. Had he made it at 6:23, the sample would have been in hand by 6:25 and the full right to counsel could have followed.
There is also an inversion here. Breault explains that the right to counsel is limited during an ASD detention because the stop is meant to be brief. In Jones, delivering the right to counsel became the reason the detention was not brief.
Even if the rights had to come first, the numbers do not work. On the court’s own finding, the odour was noted after Mr. Jones had been told why he was under arrest. What remained was the right to counsel, and the court found that reading it properly takes under a minute. The rest of the first three minutes was the “slow-walk”, which by definition means taking longer than necessary. Compassion is to the officer’s credit. It is not in the definition of unusual circumstances. It is normal and expected that detainees are going to be emotional.
If the plain language version was adequate, the card reading was a repeat. If it was not adequate, the first three minutes were not spent delivering the right to counsel.
The court found that the first two Grant factors both favoured exclusion, one with medium strength and one with substantial strength. In R. v. Le, 2019 SCC 34, the Supreme Court of Canada said that where the first two inquiries together make a strong case for exclusion, the third will seldom tip the balance toward admission. The reasons do not address that in any meaningful way.
The two reasons given at the balancing stage were that the demand was properly grounded and the delay was “only” four minutes. That “only” language ignores the significance of the immediacy requirement and tips back into the old days of permitting some flexibility beyond unusual circumstances or operational requirements. Plus the court had already accounted for the reasonable suspicion when it assessed impact and still found substantial strength toward exclusion. Counting it a second time discounts a finding already made.
Breath evidence is always reliable thanks to statutory provisions declaring it to be so. And it is almost always important to the Crown considering it is the whole of the case for one count. If that is enough to admit it, the immediacy requirement has no remedy. Grant also says that the seriousness of the offence cuts both ways, because the public has an interest in a justice system above reproach when the penal stakes are high.
Excluding the breath evidence would not have ended this prosecution. Only the over 80 count legally depends on a breath reading.
“Negligent” was also a generous label. This investigation came a year after Breault. The officer used the detention to ask a question he already knew the answer to so he could test Mr. Jones’s truthfulness. That is using an unlawful delay to gather evidence.
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.
