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
Stay ahead of the technology.
New breath testing devices do not show up in police cars overnight. There is usually a long gap between the day a device is approved and the day it appears in your disclosure. Defence lawyers should be using that gap to get ready.
The Dräger Alcotest 6000 is a good example. It was added to the Approved Screening Devices Order, SOR/2024-66, in 2024. Approval does not mean any police agency has bought the device. It does mean agencies are now free to buy it. When a new device is approved, that is usually a sign that police somewhere are planning to switch.
That is when the work should start. File freedom of information requests with the police agencies in your area. Ask for training materials, operator manuals, master instructor course materials, maintenance and calibration protocols, and correspondence with the manufacturer and with RoadSafetyBC. Ask for materials that are still in development and not just the finished versions.
The goal is to have the manuals and the training before the devices hit the road. If you have read them first, you will know the device better than many of the officers using it. You will already know what the training tells officers to do, and you will be able to spot it when an officer does something different.
You do not want your first Alcotest 6000 file to be the one where you learn how the device works. Relearning breath testing in the middle of a file, with a review date or a trial date coming up, is not how you want to spend your time. You want to open the disclosure and already know what you are looking at.
Watch the disclosure too. Every BC IRP disclosure package includes a calibration certificate stating that the Alco-Sensor IV DWF and the Alco-Sensor FST are currently the only approved screening devices used by police agencies in BC. When that sentence changes, you should already have the new manuals on your desk.
Check the regulations every few months to see whether new devices have been approved. Pay attention to which agencies are piloting new equipment and to what is happening in other provinces.
None of this is wasted time if the police never adopt the device, or if it ends up being used in a different province. Every time you learn about a new device, you learn something about the factors that affect breath testing generally, such as flow and volume requirements, temperature, mouth alcohol and calibration. That knowledge carries over to your other files no matter which device the police used.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition for refusing to provide a sample into an approved screening device.
Police stopped the applicant’s vehicle in the early morning hours. The officer said the vehicle made a turn at a high rate of speed without its lights on and then came to an abrupt stop in its lane when the driver saw the police car. He reported a strong odour of liquor and slurred speech. He also noted a bottle of whisky behind the passenger seat that he believed was not completely full.
The officer recorded eleven attempts to provide a sample. He wrote that the applicant held the straw in his mouth without blowing or sucked air in instead of blowing out. The device registered insufficient flow and shut itself off twice. The officer’s narrative does not mention coughing at any point.
The applicant gave a very different account. He is a commercial truck driver and had spent more than twelve hours behind the wheel that day. For more than two weeks, wildfire smoke had been aggravating a cough, and he had been taking an over-the-counter cough syrup throughout the day. On each attempt he inhaled deeply, sealed his lips around the mouthpiece and began to blow. Each time, coughing cut his exhale short.
He also addressed the officer’s other observations. He told the officer at the roadside that his last drink was two days earlier. The whisky bottle was sealed and in the trunk. The cough syrup may have been mistaken for an odour of liquor. English is not his first language, and he speaks with an accent that the officer may have taken for slurring. He leaned on the police car because he was exhausted after a full day on the road.
Kyla Lee argued that the applicant had a reasonable excuse for failing to provide a sample. The Alco-Sensor FST will not capture a sample until it receives a steady flow of breath totalling at least 1.3 litres. A person who coughs partway through every exhale cannot meet that requirement no matter how hard he tries. The applicant’s detailed account of each attempt was more reliable than a police narrative that left the coughing out entirely.
The adjudicator agreed and the prohibition was revoked.
3. Decision of the Week
In R. v. Backfat, 2026 ABCJ 153, the Alberta Court of Justice stayed a refusal conviction because of how the police treated the accused after his arrest.
Mr. Backfat was arrested in October 2022 and charged with refusing to provide a breath sample, driving while prohibited and two breaches of a release order. He was intoxicated and belligerent. The arresting officer put him in the back of the police car and went to help other officers at the scene. It was 13 minutes before Mr. Backfat was advised of his right to counsel.
At the detachment the officer put him in a cell to sober up. Mr. Backfat had been equivocal about calling a lawyer, but he had said he knew which lawyer he would call. The officer estimated it would take him eight hours to sober up. Nobody checked on him. The officer went off shift without telling anyone that the question of counsel was still open.
The officer also held back the bail package to give Mr. Backfat time to sober up. The bail office closed at midnight. Mr. Backfat did not see a justice until the next morning, 19 hours after his arrest. He was released on $1.00 cash bail. The officer knew Mr. Backfat had $20 in his property. He did not collect the dollar for about five hours. The receipt the bail office needed before it would send the release documents did not go out until 5:33 p.m. The officer then went off shift. Mr. Backfat was released at 10:41 p.m. That was 12 hours after a justice ordered his release and 31 hours after his arrest.
At trial the court convicted Mr. Backfat of the refusal and of breaching a no-intoxicants condition. It found two breaches of s. 10(b) and breaches of ss. 9 and 11(e). The defence did not seek exclusion under s. 24(2). It asked for a stay under s. 24(1). The Crown proposed a sentence reduction and relied on R. v. Foxwell, 2025 ABKB 210, where an accused held for 30 hours after being granted bail received only a reduced sentence.
The court accepted that there was no evidence of a systemic problem like the one in R. v. Reilly, 2020 SCC 27. It also accepted that appellate courts generally treat a sentence reduction as the remedy for overholding. It distinguished Foxwell anyway. Foxwell involved a single breach that flowed from a cash-only bail policy the police did not know was a problem. Mr. Backfat’s case was different:
Further, the failure to release Mr. Backfat from custody did not arise from an innocent but mistaken understanding that their conduct complied with the Charter but rather from an indifference to the Charter rights and liberty interest of Mr. Backfat.
The court also noted that a sentence reduction could not take the refusal below the $2,000 mandatory minimum fine. Relying on R. v. Babos, 2014 SCC 16, and R. v. Brunelle, 2024 SCC 3, the court held that the breaches taken together required a stay:
In sum, it is the number of incidents which in totality show a general indifference to the accused’s Charter rights, and the casual disregard for Mr. Backfat’s liberty after he was granted bail that tilts the balance in favour of a stay instead of continuing the proceeding.
The refusal was stayed. Mr. Backfat received a conditional discharge and two years of probation on the breach.
4. Kyla’s Insight
This decision is a good reminder to look at the whole detention. Defence lawyers tend to focus on the roadside and treat the cell block as background. Most of the misconduct that won this case happened after the arrest, in the cells and around the bail process.
The judge found that none of the breaches would have justified a stay on its own. Together they did. That is the cumulative route the Supreme Court of Canada recognized in Babos and confirmed in Brunelle:
This Court has also specifically recognized that there may be cases in which “the nature and number of incidents, though individually unworthy of a stay, will require one when considered together” (Babos, at para. 73). This statement applies equally at the stage of determining whether abuse of process has occurred. Abuse of process in the residual category can thus result from an accumulation of incidents or state misconduct.
To use it, you have to plead every breach and connect them with a theme. The defence did that here. Its theme was that the police treated Mr. Backfat’s rights as things that could wait until it was convenient for them. The court adopted that theme.
The usual answer to overholding is a reduced sentence. In an impaired driving case that remedy has very little room to work. A sentence reduction generally cannot go below a mandatory minimum. A first refusal carries a $2,000 minimum fine and a mandatory driving prohibition. When the Crown is already seeking the minimum, there is nothing left to reduce. That point belongs at the front of any stay application on a drinking and driving file.
The defence lost the systemic argument because of the record. It asked the court to infer a systemic problem from the testimony of two officers, and the court found that evidence too thin. Reilly succeeded because the evidence proved the problem was ongoing and known. That kind of record has to be built. This is where this week’s tip comes back in. Freedom of information requests for a detachment’s bail and release policies, cell block records and data on how long prisoners are held after release orders can give you the evidence the defence did not have here.
Police are also running out of room to call these failures innocent mistakes. In Foxwell, the summary appeal court declined to stay the charges partly because the police did not know their cash-only policy was causing breaches. It went on to draw a line:
In a case where the police did not appear to know that the absence of electronic-payment facilities in detachments was creating the risk of serious Charter infringements, calling attention to the problem, through the clear denunciation and call to action delivered by the trial judge, is a sufficient and more satisfying remedy. That might well not be true where the authorities knowingly allowed a rights-infringing condition to persist.
Every decision like Foxwell and Backfat puts police on notice. The next detachment that holds someone for hours after a justice has released them will have a much harder time calling it an oversight.
Finally, the defence did not seek exclusion under s. 24(2), and the court said that remedy may have been available for some of the breaches. In a refusal case the refusal itself can be excluded, as it was in R. v. Allen, 2023 ONCJ 201. I would run exclusion and a stay together, in the alternative. A stay is the most drastic remedy a court can order. Giving the court a less drastic option for the earlier breaches costs you nothing on the stay argument.
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.
