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
One thing that can be difficult in impaired driving cases is organizing a complex file. Impaired driving cases often have ongoing disclosure as various pieces of information (such as radio transmissions, 911 calls, body cam video transcripts, witness emails, photographs, etc.) trickle in.
It can be very tempting to simply print out each piece of disclosure and stick it in the file for review later. This is not a good practice. You should organize your client files in electronic format on your desktop, saving each type of item of disclosure in a folder with the relevant information, reports, witnesses, notes, etc., each as its own subfolder.
That will make it easier for you to find the necessary documentation when you are reviewing the file and to identify more quickly any missing disclosure from the voluminous disclosure that is typically provided.
This is also helpful because if your client is following through on the recommendations you give to complete things like counseling, gather letters of support, engage in community service, and the like, that material often trickles in during the course of your representation of the client. Having a section in your client folder where all of that can be organized and labeled according to category will also help you locate it more easily when you’re preparing to send this type of material to Crown counsel in an attempt to secure a negotiated resolution or prepare it for submission to the court on a plea.
This is a much more effective way of managing your physical documentation in the file and increasing the efficiency with which you access and review it.
2. IRP of the Week
The applicant was issued a 90-day driving prohibition after providing two FAIL readings on approved screening devices.
He was stopped in the afternoon for using a cell phone while driving. While the officer was explaining the ticket, he noticed an odour of liquor on the applicant’s breath. The applicant indicated that his last drink had been the night before. Before the first test, the applicant told the officer he had taken medicine containing alcohol shortly before he was stopped. The officer looked in his mouth and found it empty. The first test was administered nine minutes after the stop.
The applicant’s evidence was that he had been drinking the night before but consumed no alcohol that day. He suffers from severe acid reflux. He burped and coughed throughout the day, including while he provided both breath samples. He was also sick with a chest infection. He had been taking cough syrup every four hours, with his last dose shortly before he left work. He swallowed a lozenge as he was being pulled over and could still taste it when he blew into the device.
Kyla Lee argued that the FAIL readings were not reliable. Acid reflux can bring alcohol up from the stomach into the mouth. Residual mouth alcohol can cause a falsely high reading on a screening device. The calibration certificate disclosed by police states that breath samples should be taken at least 15 minutes after the last drink to allow for the elimination of mouth alcohol. Despite being told about the medicine, the officer tested the applicant within about nine minutes of the stop.
Kyla Lee also argued that the applicant’s blood alcohol content could not have been over 80 mg% when he was driving, given that his last drink was the night before and he had worked a full shift that day.
Kyla Lee further argued that there was no reliable evidence of which device produced the second FAIL reading. The officer’s narrative indicated that he used a different instrument for the second test. However, the narrative recorded the same serial number for that instrument as for the first device. The Report to Superintendent listed a different serial number for the second device. Police disclosed a calibration certificate for the first device only. Because the officer’s own records could not establish which device was used for the second test, or that it was properly calibrated, the second reading could not be relied on.
The adjudicator found that the result of the ASD was not reliable. The prohibition, the monetary penalty and the vehicle impoundment were all revoked.
3. Decision of the Week
In R v Moshfeghi Zadeh, 2026 SCC 35, a five to four majority of the Supreme Court of Canada allowed the Crown’s appeal from acquittals on charges of dangerous driving causing death and dangerous driving causing bodily harm. The majority set aside the acquittals and ordered a new trial. Four judges, including the Chief Justice, dissented and would have upheld the acquittals.
The accused drove through a red light at a busy downtown Vancouver intersection at around 6:00 p.m. His vehicle was struck by another vehicle and flipped onto the sidewalk, where it hit a father and his 18-month-old daughter. The child was killed. The father was seriously injured. The light had been red for about 20 seconds. A vehicle in the next lane stopped for it. The accused never braked. He conceded that his driving was objectively dangerous, which left mens rea as the only issue at trial.
The trial judge acquitted. She found that his driving was otherwise unremarkable. He was travelling at or under the speed limit. He was neither impaired nor distracted. She inferred that he did not see the red light. She found that he suffered a momentary lapse of attention lasting three to five seconds. She concluded that this was a departure from the standard of care, but not a marked departure.
Early in her reasons, however, the trial judge wrote that “a momentary lapse of judgment without more cannot establish the actus reus and mens rea of the offence of dangerous driving.” That line comes from the concurring reasons of McLachlin C.J. in R v Beatty, 2008 SCC 5, and not from the majority. Every judge who considered the case agreed it was a misstatement of the law. The question was whether it mattered. A majority of the BC Court of Appeal held that it did not.
Justice O’Bonsawin, writing for the majority, held that the trial judge did more than misstate the law. In the majority’s view, she identified and applied the wrong test. The majority pointed to the way she organized the case law, separating momentary lapse cases from cases involving “something more” without accounting for differences in setting, such as a highway compared to a busy downtown intersection. It also pointed to her treatment of the visual cues. She used the stale red lights and the crossing pedestrians mainly to calculate how long the accused was inattentive. She also indicated that “a prudent driver does not focus on traffic lights three blocks away.” Finally, her conclusion turned on the three to five second finding and the absence of a broader pattern of inattentiveness.
The majority held that “the period of inattention is a factor, not the focus.” In its view, a reasonable driver who sees red lights ahead would be unlikely to let their attention wander long enough to enter the intersection at full speed. The majority contrasted this with a deer stepping onto a clear country road during a brief lapse. Here, the hazards were visible before the inattention began. The majority found that the error had a material bearing on the acquittals. It declined the Crown’s request to enter convictions. The trial judge had not made the findings needed to apply the proper test, so the matter goes back for a new trial.
Justice Côté, writing for the Chief Justice and Justices Karakatsanis and Kasirer, would have dismissed the appeal. The dissent emphasized that the Crown can appeal an acquittal only on a question of law alone. The Crown must also show with a reasonable degree of certainty that the error was material to the verdict. The trial judge made the misstatement once. She stated the law correctly everywhere else in her reasons. She relied on R v Chung, 2020 SCC 8, for the point that momentary lapses do not usually result in criminal liability. She also relied on the passage from the Beatty majority that brief conduct in otherwise proper driving “is more suggestive of the civil rather than the criminal end of the negligence continuum.”
The dissent also noted that the trial judge did not stop once she found the lapse was momentary. She went on to weigh the circumstances. That exercise would have been pointless if she believed a momentary lapse could never be a marked departure. Her reasons addressed every factor the Crown relied on, including the absence of braking, the duration and visibility of the red lights, and the pedestrians and cyclists in the intersection. The three to five second window was a finding the Crown agreed with at trial. Justice Côté described the majority’s view of what a reasonable driver would have done as “an attack on the trial judge’s undisputed factual findings.”
4. Kyla’s Insight
The dissent got this right. Every judge agreed that the trial judge misstated the law in one sentence. The real issue was whether that sentence changed the outcome. The majority answered that question by substituting its own view of how the evidence should have been weighed, and then labelled the difference an error of law.
The Crown’s right to appeal an acquittal is deliberately narrow. Section 676(1)(a) of the Criminal Code limits it to questions of law alone. The Crown cannot appeal on the basis that an acquittal is unreasonable. That restriction exists because the courts have long treated putting a person in jeopardy twice for the same offence as the “supreme invasion” of an individual’s right to liberty, in the words the dissent took from Cullen v The King. When an appellate court recasts a trial judge’s weighing of the factors as the application of a wrong test, it gives the Crown a form of review that Parliament withheld.
Look at the visual cue evidence, which is the heart of the majority’s reasons. The trial judge considered the stale red lights and the pedestrians. She found that a prudent driver focuses on the lights immediately ahead. She found that the accused had a window of three to five seconds after clearing the previous intersection to react to the red light at Hornby Street. The Crown agreed with that finding. The majority’s view that a reasonable driver who sees red lights from blocks away would not let their attention wander is simply a different view of what a reasonable driver does. Deciding what a reasonable driver would do in the circumstances is the application of the standard of care to the facts. That is a question of mixed fact and law. It is exactly what the trial judge was entitled to decide, and exactly what the Crown cannot appeal.
The majority also faulted the trial judge for sorting the cases by the length of the lapse. The cases themselves draw that line. The Beatty majority wrote that conduct in “such a brief timeframe in the course of driving, which is otherwise proper in all respects, is more suggestive of the civil rather than the criminal end of the negligence continuum.” The trial judge read Chung as confirming that momentary lapses do not usually attract criminal liability. A trial judge who relies on that language and finds that an otherwise prudent driver had a lapse of a few seconds is applying the Supreme Court’s own framework. Her reasons could have said more about the downtown setting. As the dissent recognized, reasons that could have been more thorough do not create a freestanding ground of appeal. That is especially so on an acquittal, where a judge can always acquit because the evidence falls short.
The remedy exposes the problem. The majority could not enter convictions because, in its view, the trial judge had not made the necessary findings. She did make findings. She found that the accused was driving prudently and within the speed limit until the final seconds. She found that he was not impaired or distracted. She found that his lapse lasted three to five seconds. What the majority wanted was different findings, and a new trial is the means of getting them. The dissent warned appellate courts to “guard against thinly veiled attempts by the Crown to retry the facts.” That is what this appeal was.
For defence counsel, the practical lesson is about the trial record. In any dangerous driving case built on a momentary lapse, do not let the trial judge rely on the “without more” language from the Beatty concurrence. Put the Beatty majority and Chung in front of the court. Ask the judge to address the location and every visual cue as part of the standard of care, and not only as a way of measuring the lapse. Expect the Crown to lean hard on the urban setting after this decision. The majority’s reasoning suggests that a lapse of a few seconds in a busy downtown core will be measured against a higher standard than the same lapse on a highway. The defence will need evidence about what a reasonable driver could actually perceive and react to in that setting.
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.
