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 Decision of the Week
- DUI Decision of the Week
- Kyla’s Insight
1. Impaired Driving Defence Tip
Care and control cases can be complicated because there is the presumption in the Criminal Code that a person who occupies the driver’s seat of a motor vehicle does so for the purposes of setting the vehicle in motion.
And because there are common law assumptions that an intoxicated person occupying the driver’s seat of a motor vehicle with the means to set it in motion may change their intention and decide to drive in their intoxicated state, a lot of evidence is required to disprove that a person is in care and control of a vehicle.
This issue comes up both in Immediate Roadside Prohibition Review hearings as well as in criminal cases where you may be anticipating having your client testify.
When considering the type of evidence to elicit from your client in either context, helpful guidance is found in R. v. Fisher, 2014 ABPC 32. There, Fradsham, PCJ outlined the following six broad factors at paragraph 32:
(1) Nature and status of the motor vehicle – Is the vehicle operable or inoperable? Is it running or off? How much fuel does it have? What steps must be taken in order to start the vehicle and then set it in motion? Does the accused have an interest in the vehicle? Does he own, lease or otherwise lawfully use that vehicle? Is he familiar or unfamiliar with its method of operation? What experience does he have using that vehicle or a vehicle of that nature?
(2) Use of Motor Vehicle Equipment – What gear is the vehicle in (neutral, park, etc.)? Is the parking brake engaged? Where is the accused located within the vehicle? Is he in the driver’s seat? Is it reclined? Has he otherwise made the vehicle more suitable for a purpose other than driving such as sleeping. For example, is there a sleeping bag, blanket, pillow, etc.) (sic)? Did the accused take any steps to ‘dress’ (or undress) for sleeping that day (eg. removing shoes or even dressing warmly (or lightly) depending on the season)? If the vehicle is running, are the headlights or other lights in the vehicle in use? Are the headlights ‘automatic’ or did the accused turn them on? If the latter, this would suggest use for driving. Is the accused wearing a seatbelt? Ordinarily, a seat belt is of limited utility when the vehicle is stationary and the occupant sleeping. Is the heater or air conditioning in use? Is the radio/stereo operating?
(3) Location of the vehicle – Is the vehicle located in a place where it can be lawfully parked or at which a person can sleep for the evening? Or is it on another’s private property or public property not designed for that purpose? Does the vehicle pose a hazard or otherwise interfere with traffic or is it lawfully parked or stored? Did the accused drive his vehicle to that location or did he enter the vehicle once it was there? Was this the accused’s ultimate destination or was he intending to remain there only temporarily? What was the reason for selecting that location? Has the accused made use of that location for the same purpose in the past?
(4) Possession, location and/or use of a vehicle’s keys – Keys are usually the means by which a motor vehicle is put in motion. Possession of those keys may be seen as a significant step in taking control of that vehicle. Placing keys in a vehicle’s ignition increases the likelihood of starting the vehicle. And actually starting the vehicle with the keys may be the penultimate step in putting that vehicle in motion. The risk of danger increases as one progresses along that continuum;
(5) Accused’s Condition – Is the accused sober or intoxicated? What is his level of intoxication? Did he drive to the location after having consumed alcohol or while impaired? As noted by the court in Boudreault, “ … Impaired judgment is no stranger to impaired driving,” (at para. 13). The accused when sober may know when to drive and when not to drive; that accused when intoxicated may not.
(6) The Alternate Plan – If the impaired driver will not himself drive from the place of care or control, does he have an “objectively concrete and reliable” plan as to how that will occur? Did he have a stated intention to resume/not resume driving and under what circumstances? Was the plan the only or most desirable plan available to him? Could the accused have availed himself of some other means to achieve his goal other than by making use of the motor vehicle? Did he have the means to effect his plan (e.g. by use of a cell phone to call a taxi)?
Making sure to cover off with your client in your pre-trial interviews and preparation, as well as in the IRP affidavit. All of the above topics will help to establish a much stronger case for rebutting any presumption of care or control.
2. IRP Decision of the Week
Prohibition Revoked: Police observed a person parked in a parking lot outside a licensed establishment. The vehicle had its lights on. The officer pulled over and parked his vehicle nearby to observe the parked vehicle. After more than 15 minutes, no steps were taken by the individual to set the vehicle in motion. The officer pulled up behind the parked vehicle and conducted a traffic stop.
When the officer knocked on the driver’s side window, the male occupant had a cell phone on his lap and was scrolling through the cell phone screen. The officer’s evidence did not describe what was on the screen or what the individual was scrolling through.
The officer subsequently formed a reasonable suspicion to believe there was alcohol in the occupant’s body. An ASD demand was read and a test was conducted registering a fail.
In the review hearing, the applicant provided evidence by way of affidavit that he was in the vehicle for the purposes of arranging an Uber ride home. Prior to arranging his Uber, he spent some time using his cell phone to respond to messages. He was actively on the Uber app when the officer knocked on the window.
Kyla Lee successfully argued that the applicant was not in care and control of the vehicle. Specifically, the absence of evidence from the officer about what was on the phone screen raised an adverse inference that this evidence did not support the case for care and control. The significant length of time the vehicle had been parked without moving supported there was not an intention to set the vehicle in motion. The prohibition was therefore revoked.
3. DUI Decision of the Week
Another DUI case is headed to the Supreme Court of Canada, which may or may not be good news. R. v. Kelly, 2025 ONCA 92 was granted leave to appeal by the Supreme Court of Canada today.
This case centres around the blood drug concentration law, and in particular cases involving death. The issue in Kelly is whether or not a causation element for death is required. Mr. Kelly had argued at his trial that there needed to be evidence both that his blood drug concentration exceeded the prescribed limit as well as that the death that ensued was caused by the elevated blood drug concentration.
At trial, Mr. Kelly was acquitted. However, on appeal, the Ontario Court of Appeal reversed the trial judge’s conclusion and found that there is unambiguous language in the Criminal Code indicating that the causation element of the death does not need to be linked to the blood drug concentration. The Court of Appeal rejected the argument that by removing the causal element between the blood drug concentration and the death, the offence was converted to one tantamount to an offence of absolute liability.
4. Kyla’s Insight
It’s interesting that the Supreme Court of Canada granted leave to appeal on this case.
On the one hand, many of the cases where leave has been granted in respect of the new impaired driving laws have been cases where there are disagreements between the provinces or where there is arguably some ambiguity in the legislation. On the face of the Criminal Code, this does seem unambiguous. But there is a persuasive argument by the defence in this case that it does create a de facto absolute liability offence, which given the risk of a jail sentence would be contrary to Section 7 of the Charter.
If you look at the trends in the Supreme Court of Canada’s judgments on interpreting these provisions of the Criminal Code, they do tend to tie themselves very strictly to the actual wording of the legislation. So I’m not optimistic. However, granting leave indicates they have something they want to say about this, and given the absence of much disagreement in the jurisprudence across provinces and the unambiguous language of the Criminal Code, maybe the constitutional issue will prevail.
Time will tell.
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.
