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
- ADP of the Week
- Decision of the Week
- Kyla’s Insight
- Resources
1. Impaired Driving Defence Tip
Run your trial like it’s an appeal.
Realistically many of your clients, if convicted, are not going to have the resources or desire to appeal their convictions. You need to remember, any time you are conducting a trial, that you are always creating a record for appeal. This means making objections when they arise and putting on the record issues like late or delayed disclosure or surprises in the evidence that may delay matters. You need to ensure that you’re preserving every avenue of appeal for your client in the event they are convicted and they decide to go that route.
It is also useful to do this because it forces you to think through the implications of many of the arguments you are making by running your trial as though you are running an appeal. You put yourself in a position to address and identify gaps in the evidence and in your case, and to remember your own ethical obligations for service to your client (such as when it comes to making decisions about whether to testify).
Running the trial like one is running an appeal should there be a conviction and a subsequent appeal, not only assists but also helps cover your own back in the event your client makes an ineffective assistance of counsel complaint.
2. ADP of the Week
The applicant was served with a 90-day administrative driving prohibition.
Three officers were involved. Officer A investigated the applicant and wrote the Report to Superintendent. Officer B served the notice of prohibition. The jurat on the report named Officer A as the officer swearing it. The signature on the report belonged to Officer C. Officer C had no role in the investigation or in serving the notice.
Section 94.3(b)(i) of the Motor Vehicle Act requires the report to be sworn by the peace officer whose opinion resulted in the notice being served. That was Officer A. Officer C never formed an opinion about the applicant at all. Without a report sworn by the right officer, s. 94.4(7) requires the superintendent to revoke the prohibition.
Acumen Law argued that the report was not properly sworn on the above basis and that the prohibition had to be revoked. The adjudicator disagreed and confirmed the prohibition.
Acumen Law then brought a petition for judicial review. The superintendent consented to an order setting aside the decision and sending the matter back for a new hearing. On the rehearing the adjudicator found that the report was not properly sworn, and the prohibition was revoked.
3. Decision of the Week
In Williams v. R., 2026 NSSC 298, the Nova Scotia Supreme Court overturned an impaired driving conviction because the trial judge drew an adverse inference from a refusal the accused had already been acquitted of.
Mr. Williams was charged with impaired operation, refusing an ASD demand and assaulting a peace officer. Before trial his lawyer filed a Charter notice alleging breaches of ss. 8 and 9. The officer had made a demand under s. 320.27(1)(b) when no functioning ASD was available, and the defence argued that the refusal evidence should be excluded.
Partway through the trial the Crown said it would not seek a conviction on the refusal “because of some submissions my friend has made in an application.” The trial judge found Mr. Williams not guilty of that count. The Crown then led the demand and refusal evidence anyway, so that it could ask for an adverse inference under s. 320.31(10) of the Criminal Code on the impaired count.
The officer’s notes said only that she radioed for an ASD. At trial she testified that she had one in her trunk that did not work, and that she radioed for another after that. In closing, the Crown refused to concede that the demand was unlawful:
So, I’m not at this point conceding that the demand was invalid but the reason I … did not proceed on that charge, is that the disclosure made it seem like the demand was invalid. There was nothing in Constable Fraser’s notes about her having an ASD in her trunk that did not work, all the notes said is that she radioed for one, which would make the demand invalid, so I undertook not to proceed with that charge. Her evidence at trial was that she had one in her trunk, and then radioed for one after that, so I didn’t find that out until the day of trial, so I don’t think I can sort of ethically concede that the demand was unlawful …
The defence opposed the inference. It argued that Mr. Williams was acquitted because the demand was unlawful and gave him a right to refuse. The trial judge drew the inference anyway. He found that Mr. Williams’s explanation for being willing to give a blood sample but not a breath sample “simply makes no sense in the circumstances.” He convicted on the impaired count based on the inference, 15 to 20 minutes of erratic driving with some periods of appropriate driving, unsteadiness and slightly slurred speech. He also convicted Mr. Williams of assaulting a peace officer at the detachment.
On appeal the Crown conceded the error and Justice Gabriel agreed. An acquittal is the equivalent of a finding of innocence. The Crown cannot lead evidence to contradict a finding made in the accused’s favour (Grdic, Grant and Mahalingan). The court held that it made no difference how the acquittal came about:
It matters not whether the refusal charge was determined on its merits, or where, as here, the prosecution invited an acquittal.
The court relied on R. v. Arens, 2016 ABCA 20, where the Crown withdrew the refusal charges and the trial judge still treated the refusal as evidence of guilt:
However, these charges were withdrawn by the Crown so section 258(3) no longer had any relevance to the proceedings. The trial judge erred in appearing to rely on such evidence; this contributed to the miscarriage of justice.
The Crown also conceded that without the inference there was no realistic prospect of a conviction on a retrial. The court set aside the impaired conviction and entered an acquittal. Because that disposed of the count, the court did not decide whether s. 320.31(10) requires a lawful demand.
The appeal of the assault conviction was dismissed. Mr. Williams, now self-represented, argued that the improper inference had tainted the trial judge’s view of his credibility on the assault. The court held that an accused who testifies is assessed like any other witness, on the whole of his evidence, relying on P.E.C. The officers’ accounts of the assault conflicted. The trial judge confronted that conflict, explained how he resolved it and properly applied W.(D.).
4. Kyla’s Insight
The most telling part of this decision is the Crown’s concession on remedy. The trial judge had 15 to 20 minutes of erratic driving, an accused who was unsteady on his feet and slightly slurred speech. Without the refusal inference, the Crown agreed there was no realistic prospect of a conviction on a retrial. That shows how much work the s. 320.31(10) inference does in an impaired case built on driving and symptoms. It is often what carries a thin case over the line, and keeping it out is worth a real fight.
When the Crown signals it will not proceed on a refusal, ask the court to enter an acquittal rather than accepting a stay or a withdrawal. An acquittal carries issue estoppel with it. After that, the Crown cannot use the refusal to suggest the accused had something to hide. Arens says a withdrawn refusal charge also takes the inference off the table, but an acquittal leaves the Crown nothing to argue about.
This case also shows why this week’s tip matters. Trial counsel opposed the inference in closing and explained exactly why the acquittal mattered. He told the court the demand was unlawful and that the defence would have run its Charter application if the Crown had not conceded the count. That put the issue on the record. Mr. Williams argued his appeal without a lawyer and still won on the impaired count, because the record was there for him.
Pay attention to the officer’s notes. The Crown dropped the refusal because the notes said only that the officer radioed for an ASD, which made the demand look invalid. At trial the officer described a device in her trunk that did not work. That device appears nowhere in her notes. A piece of equipment that shows up for the first time at trial is a cross-examination point in its own right. Here it did not matter, because the acquittal had already been entered and the Crown could not use evidence it learned of on the day of trial to rehabilitate the demand.
The court left open whether s. 320.31(10) requires a lawful demand. The words of the section favour the defence. The inference is available only where the accused:
without reasonable excuse, failed or refused to comply with a demand made under section 320.27 or 320.28 …
In my view a demand that does not meet the requirements of s. 320.27, including the requirement that an ASD be available to take the sample immediately, is not a demand made under that section. I would make this argument whenever the lawfulness of the demand is in issue, whether or not the Crown proceeds on a refusal count.
Finally, the assault conviction is a reminder of what is at stake when the client testifies in a multi-count trial. The trial judge rejected Mr. Williams’s explanation for refusing and found other parts of his testimony unreliable. That view of his credibility carried over to the assault. P.E.C. allowed it. The refusal evidence should never have been used against him on the impaired count, but his testimony about it still helped convict him of the assault. When your client takes the stand, his evidence on every count is in play. That has to be part of the advice you give him about whether to testify.
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.
