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
Before you advise a client on a plea to a driving offence under Part VIII.1 of the Criminal Code, check whether the mandatory minimum the Crown is relying on actually applies.
Bill C-46 rewrote the entire impaired driving regime in 2018. Not every provision of the old law made it into the new one. R v Wolfe, 2024 SCC 34, and R v Long, 2026 ONSC 5923, both turned on provisions Parliament did not carry forward. In Wolfe, it was the discretionary driving prohibitions for criminal negligence under former s. 259(2). In Long, it was former s. 255(3.3), which had made the impaired driving minimums apply to the bodily harm and death offences. Put the repealed section beside its replacement in Part VIII.1 and look at what is missing. Courts must presume that Parliament changes the wording of a provision for a reason. Where Parliament would be expected to refer to something expressly and does not, the omission can be treated as a deliberate choice.
Then read the provision the Crown relies on exactly as it is written. Section 320.26 applies only when the court is imposing a sentence for an offence under s. 320.14(1) or 320.15(1). A prior impaired conviction does not count as a prior offence when the client is sentenced for impaired driving causing bodily harm. The court in Long noted that an accused deciding whether to plead guilty is entitled to read the Criminal Code and rely on its plain words. That reliance belongs in your advice. Whether a minimum applies can decide whether a conditional sentence is available, and it can change whether a plea makes sense at all.
Expect the Crown to argue that the plain reading leads to an absurd result. Have the test ready. An interpretation is absurd only if it leads to ridiculous or frivolous consequences, is extremely unreasonable or inequitable, is illogical or incoherent, or is incompatible with other provisions or the object of the legislation (Rizzo & Rizzo Shoes Ltd (Re), [1998] 1 SCR 27, at para 27). A result that might make more sense if Parliament had drafted the provision differently does not meet that test. It is not absurd to leave a sentencing judge to impose a fit sentence on the full record, including the prior conviction. Where the gap is more than a minor imperfection, filling it would amount to amending the legislation, and that is Parliament’s job (R v Boily, 2022 ONCA 611).
2. IRP of the Week
The applicant was issued a 90-day driving prohibition after two approved screening device tests registered a FAIL.
The officer observed the applicant’s vehicle being driven poorly and stopped it. The officer formed a suspicion that the applicant had alcohol in his body and made an approved screening device demand. The applicant provided a sample, and the device registered a FAIL. The applicant then provided a second sample on a second device, and that test also registered a FAIL. The applicant disputed the prohibition.
The police report included two certificates of a qualified screening device calibrator, one for each Alco-Sensor FST used in the investigation. Both certificates showed that the calibration of each device had expired before the date the applicant was tested.
Kyla Lee argued that the test results were not reliable. The only evidence before the adjudicator about the service status of the devices was the certificates. Those certificates showed that both devices were past their calibration expiry dates when they were used to test the applicant.
Counsel also argued that no inference could be drawn that the devices were in fact within their calibration period. The Alco-Sensor FST is designed to lock out and refuse to accept a sample once its calibration period has expired. The fact that the devices accepted samples could not be used to override the dates on the certificates. If the devices accepted samples after their expiry dates, that was evidence that the lockout feature was not working. A device with a lockout feature that is not working gives the adjudicator no basis to conclude that the rest of the device was working properly. Either way, the adjudicator could not be satisfied that the results were reliable.
The adjudicator accepted Kyla Lee’s submissions and the prohibition was revoked.
3. Decision of the Week
In R v Long, 2026 ONSC 5923, the Ontario Superior Court of Justice held that a prior conviction for impaired driving or over 80 does not count as a prior offence when an offender is later sentenced for impaired driving causing bodily harm. The 30-day mandatory minimum for a second offence therefore did not apply, and a conditional sentence remained legally available.
The accused pleaded guilty to impaired driving causing bodily harm under s. 320.14(2) of the Criminal Code. He had been drinking with his partner at their home. He got into his vehicle in the driveway, reversed out, and struck her as he drove away, causing her significant injuries. He had a prior conviction for over 80 under former s. 253(1)(b). The Crown intended to seek a five-year penitentiary sentence. The defence intended to seek a conditional sentence, which would be off the table if a 30-day minimum applied.
Section 320.2 sets out an escalating series of minimum punishments for impaired driving causing bodily harm. A first offence carries a minimum $1,000 fine, a second offence carries 30 days’ imprisonment, and each subsequent offence carries 120 days. Section 320.26 tells the court which earlier convictions count as prior offences. By its terms, it applies only when the court is imposing a sentence for an offence under s. 320.14(1) or 320.15(1). It does not mention s. 320.14(2). A prior bodily harm conviction will count against someone later sentenced for impaired driving simpliciter. Nothing in the Criminal Code makes the reverse true.
The Crown argued that anyone guilty under s. 320.14(2) has necessarily committed an offence under s. 320.14(1), so the impaired driving minimums and their prior offence rules should apply. It relied on Hansard to argue that Parliament intended to keep an escalating regime for repeat offenders. It argued that any other result would be absurd, and that R v Bundy, 2025 NSSC 325, which decided the same issue in the accused’s favour, was wrongly decided.
In R v Gomes, 2003 ABCA 149, the Alberta Court of Appeal held that the minimum punishments for impaired driving did not apply to impaired driving causing bodily harm, and rejected the Crown’s argument that this result was absurd. Parliament responded in 2008 by enacting former s. 255(3.3), which made everyone liable to the bodily harm and death punishments “also liable” to the impaired driving minimums “for greater certainty.” When Bill C-46 repealed and replaced the driving provisions in 2018, Parliament did not carry s. 255(3.3) forward. The government’s own legislative background document, which charted the old provisions against the new ones, made no reference to it at all.
The court then relied on the line of authority dealing with driving prohibitions for criminal negligence: R v Boily, 2022 ONCA 611, R v Francisco, 2023 BCCA 450, and R v Wolfe, 2024 SCC 34. From Francisco, the court drew the principle that purpose and context cannot be used to overwhelm the words of a provision where those words have a clear and unambiguous meaning. From Wolfe and Boily, it drew the principle that a person sentenced for the charged offence cannot be punished as though for a lesser included offence. The court also applied the implied exclusion maxim from Wolfe. Where Parliament would be expected to name an offence and does not, the omission can be treated as deliberate.
On the text, the court accepted that the accused had also committed an offence under s. 320.14(1). That did not mean he could be sentenced under s. 320.19(1). When sentencing for impaired driving causing bodily harm, the court is not “imposing a sentence for an offence under subsection 320.14(1) or 320.15(1).” The Crown’s reading required the words “or 320.14(2)” to be read into s. 320.26. If the Crown were right, there would be no reason for s. 320.2 or s. 320.21 to exist, because every bodily harm and death offender could simply be sentenced under s. 320.19(1). The court also noted that an accused deciding whether to plead guilty can read the Criminal Code and conclude that a prior impaired conviction will not count against him.
The court found that the Hansard material did little for the Crown. Very little of the debate concerned the mandatory minimums, and none of it addressed the precise issue. The excerpts in the Crown’s factum were not always presented in their full context. Read in full, the committee record showed that a proposal to increase the minimums for impaired driving causing bodily harm was rejected. One member indicated that a conditional sentence should be available for a first offence, and that judges were already sentencing well above the minimums. If anything, the record showed that Parliament was comfortable leaving fit sentences to the courts. The court also found that a purpose of Bill C-46 was simplification, and that the Crown’s interpretation required the public and the courts to ignore two sentencing provisions and the plain text of a third.
On absurdity, the Court accepted that it would make sense for a prior impaired conviction to count as a prior offence in a bodily harm or death case. That did not make the result absurd. An interpretation is absurd if it leads to ridiculous or frivolous consequences, if it is extremely unreasonable or inequitable, if it is illogical or incoherent, or if it is incompatible with other provisions or the object of the legislation. It is not absurd for Parliament to leave it to judges to impose fit sentences that take all prior offences into account. Not all bodily harm is equal, and a 30-day jail term may be unjust where the prior conviction is remote and the injury relatively minor. A lengthy conditional sentence may also be more punitive than 30 days in jail. The court noted that a conditional sentence may well be appropriate only in a rare case of impaired driving causing bodily harm or death. Whether Parliament left out s. 320.14(2) on purpose was not the real issue. It was left out, and it is not for the courts to rewrite the provision for Parliament.
The court followed Bundy and held that the accused’s prior over 80 conviction is not a prior offence for the purpose of sentencing him for impaired driving causing bodily harm under s. 320.2.
4. Kyla’s Insight
The Crown reaches for absurdity whenever the text of a provision produces a result it does not like. This decision draws the line between an outcome that is absurd and an outcome that simply favours the accused. Justice Nicholson accepted that it would be sensible for a prior impaired conviction to count in a bodily harm case. He then held that a more sensible alternative is not the test. An absurd result is one that is ridiculous, incoherent or at war with the rest of the scheme. Leaving a sentencing judge to weigh a prior impaired conviction as part of the offender’s record, with the full range of sentences available, is none of those things. Defence counsel should have this passage ready the next time the Crown asks a court to fix Parliament’s drafting in the name of absurdity.
The reasoning is hard to attack because it rests on history and not on policy preference. Parliament had a ready-made answer to Gomes sitting in former s. 255(3.3). It repealed that answer in Bill C-46 and did not replace it. The government’s own chart of old and new provisions makes no mention of it. Courts are entitled to presume that Parliament knows how its legislation has been interpreted and that it changes the wording for a reason. The court also did what defence counsel should do with every Hansard argument. It read the whole record and not just the Crown’s excerpts. The full debate showed members rejecting higher minimums for bodily harm and expressing confidence that judges would impose fit sentences.
I will admit to some personal satisfaction here. The court relied on Francisco, which I argued at the BC Court of Appeal, for the principle that purpose and context cannot overwhelm clear statutory words. It is always nice to see a case you argued doing work in another province. The reasoning would hold up just as well without it.
Long is an Ontario decision and Bundy is from Nova Scotia, so neither binds a BC court. Two superior courts have now reached the same conclusion on the same provisions after a full review of the history, and that will be persuasive in BC. The decision is also useful well beyond this one issue. Bill C-46 rewrote the whole of Part VIII.1, and the Crown regularly asks courts to fill gaps Parliament left behind. Wolfe, Francisco and now Long give defence counsel a clear framework for resisting those requests. Counsel should also be candid with clients that the court described a conditional sentence for impaired driving causing bodily harm as appropriate only in a rare case. The point of Long is that the sentencing judge gets to decide.
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.
