In The News

Canada’s proposed overhaul of federal impaired driving rules could unfairly criminalize medical cannabis users, according to an open letter to Ottawa signed by more than 50 criminal defence lawyers.

The letter, which warns that medical marijuana users could be unfairly punished under the proposed system, underscores the challenges to preventing high driving. Experts are divided on just how much THC – the principal psychoactive compound of cannabis – would make someone impaired, and the government is still developing a reliable way to conduct a roadside test.
​

​Family members of a cyclist who was killed in Richmond last year are outraged after learning the driver who allegedly ran him down won’t face serious charges.

“I was very confident that he would be criminally charged,” said Lianne Dean, whose son was six cyclists who were struck head-on while riding on River Road last November.

Thirty-three-year-old Brad Dean died, while two other riders were seriously injured.
​

​The B.C. government’s latest crackdown on distracted driving should be good news for Kyla Lee, a Vancouver defence lawyer who specializes in fighting traffic tickets in court.

That’s because every time the government’s hammer comes down, the calls to her law office go up. It’s happened every time the people in charge have ramped up penalties against drivers using their mobile phones behind the wheel.
​

This week, I sat down with Global News at 6 to discuss random breath testing. I’ve previously written about it on my blog.(Unfortunately the interview has been archived by Global News and is no longer available for viewing)

On September 14, 2017, I was invited to speak with CBC’s Gloria Macarenko on her program, BC Almanac, regarding the upcoming marijuana legalization and how it will impact marijuana impaired driving. Insightful comments were also provided by the BC Trucking Association.

Canada’s highest court has upheld a series of B.C. judgments limiting the options for alleged drunk drivers to challenge the lawfulness of police demands for breath samples.

Thursday’s split decision from the Supreme Court of Canada in the case of Dion Henry Alex found that if a breath sample was properly obtained, Crown prosecutors don’t need to prove that an officer was legally justified in taking that sample.

But Vancouver defence lawyer Kyla Lee, who specializes in impaired driving cases, doesn’t expect this judgment to be the final word on the matter.

“What’s very interesting about it is that it was a 5-4 split, and the chief justice was on the minority side who said no,” Lee said.
“What that means, ultimately, is that the door is not closed on this issue.”

Charter challenges still possible
Accused drivers still have the option of filing a Charter challenge before trial if they want to challenge the admissibility of their breath samples, Lee pointed out.

The legal saga at the heart of the high court ruling began in 2012, when Alex was stopped by an RCMP officer conducting a seatbelt check in Penticton.

A provincial court judge convicted Alex of drunk driving, despite finding that the officer did not have sufficient grounds to ask for Alex’s breath sample. That decision was upheld in B.C. Supreme Court and at the B.C. Court of Appeal.

Those decisions relied on a Supreme Court of Canada decision that dates back to 1976. That judgment held that if a breath sample is taken on an approved device by a qualified technician and the readings are reliable, the results can be certified without proving the demand was lawful.

‘No longer good law,’ dissenting justices say
That approach prevents drunk driving trials from becoming long, drawn-out affairs, the Supreme Court ruled in upholding the lower court decisions.

A change in the law, Justice Michael Moldaver wrote on behalf of the majority, “will lead to unreasonable delays in drinking and driving proceedings that are counterproductive to the administration of justice as a whole and frustrate Parliament’s intent.”

But the four dissenting justices — including Chief Justice Beverley McLachlin — argue in their reasons that the status quo is “no longer good law” and is “based on an incorrect view that relevant evidence is admissible, even if it is unlawfully obtained.”

Those judges suggest that a change in the law would still allow Crown prosecutors to prove their case, even if it takes a little longer.

Read it here: http://www.cbc.ca/news/canada/british-columbia/drunk-driving-supreme-court-dion-henry-alex-1.4193617

Lawyer says accused drunk drivers left waiting years for a decision

Vancouver, BC, Canada / News Talk 980 CKNW | Vancouver’s News. Vancouver’s Talk
Shane Woodford

It looks like in an effort to unclog the courts the BC Government has clogged up an appeal process for accused drunk drivers leaving some of them waiting years for a decision.

Acumen Law Lawyer Kyla Lee says a BC Supreme Court judge ruled the Superintendent of Motor Vehicles must issue decisions within a reasonable time frame.

“There are over a 1000 people who didn’t get a decision in the 21 day time period and are waiting.”

READ MORE: Law firm says documents prove government rigged drunk driver appeal process

Lee says accused drunk drivers, innocent or guilty, are back on the road with interim drivers licences until a decision is made.

“No there is no positive and it is abhorrent, in my view, that the superintendent is not taking steps to address this. When I filed these documents in court I thought it would spur them along in speeding up and rendering decisions but nothing has changed. There is actually a table that you can see of all of the decision that are outstanding there are over 1000 files.”

Lee says a BC Supreme Court judge ruled in favour of her argument that DUI appeal decisions cannot be put off indefinitely.

“I think what the government is asking of the tribunal is too big for them to handle. The issues that arise in drunk driving cases are complex legal issues that are properly for the courts and yet we are giving adjuticators who don’t have formal legal training, who aren’t lawyers, who aren’t judges the job of ascertaining these things.”

She says the tribunal is in way over its head and these are issues that need to be returned to the court system to be dealt with.

Rigged process?Acumen is currently fighting another battle with the process over documents which it claims prove the province rigged the drunk driver appeal process.

It says officials within the Attorney General’s office pressured adjudicators to uphold decisions in order to protect DUI laws.

Acumen claims it has the paperwork to prove it, but can’t reveal them while the government appeals their release.

The firm says the file could end up overturning hundreds of cases, and put the review tribunal itself in question.

Listen to the full interview here.

The appeal process for overturning a drunk driving conviction in B.C. has a massive backlog, argues a B.C. law firm.

Kyla Lee of Acumen Law says that over a thousand people in British Columbia have been waiting more than 21 days for a court ruling in their appeal.

She says the large number of overdue cases causes strain on the Superintendent of Motor Vehicles office, while also reducing the law’s effectiveness – since people waiting for rulings are allowed interim licenses.

“There is no positive and it is abhorrent, in my view, that the superintendent is not taking steps to address this,” said Lee to CKNW.

“The issues that arise in drunk driving cases are complex legal issues that are properly for the courts and yet we are giving adjuticators who don’t have formal legal training, who aren’t lawyers, who aren’t judges the job of ascertaining these things.”

However, Public Safety Minister Mike Morris argues the Superintendent of Motor Vehicles is still the appropriate venue for appeals.
“There is a backlog, I’ve been aware of that for a while, and I know the superintendent’s office is taking steps to mitigate and reduce that background,” he said.

“It’s my understanding that the majority of the reviews are done within 21 days. There are circumstances that surface from time to time on other reviews that cause the timelines to be extended.”

Read the article here.

A Vancouver Law firm says the appeal process for accused drunk drivers is rigged in order to protect the provincial government DUI laws — and it has the documents to prove it.

“You have to wonder if anybody has had a fair hearing because you just don’t know,” says Paul Doroshenko with Acumen Law, after an FOI request returned documents showing the provincial government pressures the adjudicator on how to rule.

“This calls into question the integrity of the government to a level you are rarely going to see in modern Canadian history.”
Doroshenko says the province went to court to try and get the paperwork back and lost. But that wasn’t all.

“They also asked the judge for an order to keep us from being able to defend our clients. We had figured it out and the last thing they wanted was for us to be able to continue to defend our clients knowing that the system is rigged, which is really shocking. It is absolutely disgusting and its hard to believe that this takes place, but this all took place within the Attorney General’s ministry and the Justice ministry.”

Acumen Law says many people given roadside prohibitions may not have gotten a fair appeal hearing

He says his firm is out tens of thousands of dollars from hiring interim outside legal help for their clients.

“I don’t know what is going to happen. I don’t how they can handle it. Disband the tribunal? Set up something new? I think that there should be an inquiry. We are going to be writing to the Ombudsperson to ask for an investigation. You have to think that all of those people who paid their money for their hearing — that they have got to be wondering whether or not they got their value for money. Did they take their money, purportedly for a legitimate review hearing, and the people didn’t get it?”

Cases overturned?

Acumen Law says the fallout from this will be absolutely huge, including putting into question the tribunal process itself.

Kyla Lee. a lawyer with Acumen, says it also puts into question every single decision it’s made in its six years of existence.

She says there’s no question there are people who have been convicted of drunk driving, appealed, lost and now have suffered a driving prohibition and harsh ongoing punishment, including thousands of dollars in fines and associated costs.

“I don’t think it is a possibility,  there is a certainty there are people out there who have been wrongly given immediate roadside prohibitions, that have been wrongly upheld on review because of the way these cases have been decided.”

Lee says anyone who thinks they were wrongfully convicted needs to dig out all the behind-the-scenes documents of their case.

“But I also think the government owes its citizens the responsibility to conduct an inquiry into the extent of this. To look through all of the emails that have been sent and to identify those cases where an injustice was done. Where cases were not decided for the facts, but were decided for political considerations.”

She’s calling on the province to own up to the mistake and make it right.

Every case now in jeopardy

The NDP says it’s not calling for government heads to roll — yet — amid allegations the Provincial government has rigged the appeal process for people accused of drunk driving.

Leonard Kroge — the opposition critic for the Attorney General, says every case where someone has been penalized is now in jeopardy.

“We’re talking about the possibility of hundreds of appeals, being set aside, and frankly, if the allegations are true they should be set aside.”

“If they are true and the documentary evidence is there to support it, it is not in accordance with the rights that all of us should enjoy under the constitution and at law generally.”

Doroshenko says the documents can’t be released to the public before 30 days have passed where the government can appeal a court decision rejecting its attempt to quash those documents.

Read More here: http://www.cknw.com/2016/05/02/law-firm-says-documents-prove-government-rigged-drunk-driver-appeal-process/#.VydquTPqq8E.twitter