Phone: 604-558-8778
Toll Free: 1-855-558-8778

Author:Michael Thain

cannibis legalization

Bill 17 and the Changes to the Motor Vehicle Act

Cannabis legalization is on the horizon for Canada. There have been many announcements regarding the distribution and possession of marijuana but an additional matter is the impact that this will have on impaired driving. There are pending changes on the federal level but the BC government is proposing to introduce a whole new scheme creating Immediate Roadside Prohibitions for driving while impaired by marijuana and other drugs.

There is much uncertainty about this as there is no established system or method for detecting impairment by marijuana. There are indications that there may be technology in the future that will allow for the presence of marijuana via a saliva test but it is unknown how effective this will be. This leaves police officers with limited options roadside to deal with drivers that they believe are high. Previously, it was common for police officers to issue a 24-hour prohibition for drugs in cases where the officer had reasonable and probable grounds to believe that a drivers ability to operate a vehicle was impaired by drugs. This did not have a review procedure in place. Oftentimes it involved the administration of the Standard Field Sobriety Test or the Drug Recognition Exam by an officer trained in these techniques. Both tests have their issues in that they often can result in false positives. Even blood tests can make it difficult to determine if someone is impaired by marijuana as there is little scientific information available on how much THC needs to be detected in someone’s blood before they are actually impaired. THC can linger in someone’s blood for days or weeks, long after someone is no longer affected by it. This is especially true for medical marijuana users.

The proposed changes create two new driving prohibitions in BC. They will expand upon the 12-hour prohibition for N and L drivers (Class 7 and 7L licenses). Currently, Class 7 drivers cannot have any alcohol in their system while driving. The proposed legislation will expand that to include drugs as well, detected by a “drug screening device”. There is no indication of what these devices will be. This is concerning as 12-hour prohibitions have no review procedure in place. The recourse to dispute one is via judicial review in the Supreme Court of British Columbia, something that is not accessible to the average person and expensive to retain legal counsel for. 12-hour prohibitions also result in RoadSafetyBC prohibiting a Class 7 driver for a longer period, usually by several months. If a driver refuses to comply with a demand to provide a sample for a “drug screening device” they will also receive a 12-hour prohibition. It is concerning that a lengthy driving prohibition in the length of months will result from a prohibition with no established review procedure.

The more serious offence that is being created is a 90-day immediate roadside prohibition for drugs, similar to the current roadside prohibition available for alcohol. This provides three ways for a police officer to issue you a 90-day prohibition; a blood test showing above a specified level in your blood within 2 hours of driving, or having a combination of a specified level of alcohol and drugs in your blood.

These 90-day reviews will have specified grounds of review. These include consuming the drugs after ceasing operation of the vehicle (and that the driver had no reasonable expectation that they would be required to provide a sample of blood), that the person was not impaired by drugs or a combination of drugs and alcohol and the results of the evaluation were due to a medical condition. Much alike the 90-day alcohol immediate roadside prohibitions for alcohol, the demands and testing will mirror the provisions in the Criminal Code. Given the forthcoming changes to the Criminal Code on impaired driving regarding alcohol and drugs, these are likely going to be contested in court. The taking of blood samples is an intrusive means and not easily accomplished roadside by police officers. Furthermore, current drug impairment testing procedures have many options for false positives and inaccurate results.

This will be an interesting development in driving law and will likely result in extensive legal disputes. The tests that are yet to be established will be fundamental to this regime, and its fairness as there is no current effective manner to detect drug impairment. As we are familiar and successful in both criminal impaired driving and the existing IRP scheme, we look forward to assisting our clients with defending charges under this pending regime

0
driving-prohibition

BC Driving Prohibition FAQ

We have been receiving lots of calls regarding driving prohibitions recently.  As  a leading BC law firm dealing with driving offences and driving prohibitions, we have handled hundreds of cases where driver’s are facing losing their license under such things as the Driver Improvement Program

In addition to Immediate Roadside Prohibitions (which can be 12 hours, 24 hours, 3 days, 5 days or 90 days in length) , there are several different kinds of driving prohibitions that can be issued by the Superintendent of Motor Vehicles, also known as RoadSafetyBC.

These include the following:

Driver Improvement Program prohibitions pursuant to section 93(1)(a)(ii) of the Motor Vehicle Act for having a poor driving record

Medical Prohibitions from driving pursuant to section 92 of the Motor Vehicle Act

Driving Prohibition under section 93(1)(c) where an officer writes to RoadSafetyBC requesting a license suspension

We most commonly see Notice of Intent to Prohibit letters or Notice of Prohibition letters which communicate an intention to prohibit someone under section 93(1)(a)(ii) but we are versed in reviewing all kinds of prohibitions under the Motor Vehicle Act.  These Prohibition Letters are issued as a result of a person having too many driving offences on their driving record. 

The Driver Improvement Program allows for an escalating series of interventions depending on how many points are on a person’s driving record.  Detailed charts can be found in the Driver Improvement Program Policies and Guidelines (which can be found here 

Essentially, if you incur over 14 points in a two-year period as a Class 5 driver, you will receive a letter that RoadSafetyBC will be prohibiting you from driving.  Alternatively, if you are found guilty of more than one high risk driving offence in a 12 month period, you will also be looking at a driving prohibition (these include using an electronic device while driving, excessive speeding, driving without due care and attention, and driving without consideration). 

As a class 7 driver, if you incur more than 3 points or even one high risk driving offence, RoadSafetyBC will seek to prohibit you from driving. 

You have received the letter, now what?

After receiving either a Notice of Intent to Prohibit or a Notice of Prohibition you have the option at any point to write a letter (with a $100 application fee) to request a review of your driving prohibition.  The Notice of Intent letter will give you 21 days to submit a review.  If you submit a letter during this period, the decision to prohibit you will be suspended until a final decision is made.  If you do not send a letter, or your submission is rejected, you will receive a second letter, the Notice of Prohibition.  You can submit a second review or your first review after receiving the Notice of Prohibition but it will be outstanding.  This means that ICBC can cancel your license or a police officer can personally serve you with the prohibition (starting it immediately) if you do not acknowledge the prohibition by signing it or turning your license into an ICBC office. 

RoadSafetyBC has several options on a review of driving prohibition: they can uphold the prohibition, reduce it in duration (in whole months generally) or cancel the prohibition altogether.  There can be no special exceptions for use of the license (such as work use only). 

There are many considerations that are included in a submission to review a driving prohibition.  Hardship alone will not result in a driving prohibition being cancelled! Even if you will lose your job, RoadSafetyBC can and will uphold a driving prohibition.  RoadSafetyBC will look at your driving record, the hardship a driving prohibition would cause and consider factors included in their policies and guidelines.  We are very experienced with drafting these submissions and how factors are considered and weighed by RoadSafetyBC.  We have drafted hundreds of submissions and are able to tailor a submission that includes your personal circumstances to get the best result possible.  Often, we are even able to assist clients by submitting a second successful review for someone after the initial review they submitted on their own failed. If you are facing a driving prohibition in BC please contact us for assistance

0
customs law

Arrested at the border? Call us.

Due to our close proximity to YVR, Canada’s third busiest airport (I can see the planes land from my office!), and to two international border crossings, Peace Arch and Pacific Highway, we encounter a large amount of customs and immigration related matters.

These include situations where the Canada Border Services Agency (CBSA) has taken customs enforcement action or taken immigration enforcement action against someone.  Immigration enforcement action can include exclusion orders or being “allowed to leave” Canada for being inadmissible.  Customs enforcement actions can involve a variety of issues, including:

  • Possession or smuggling of firearms
  • Possession and smuggling of narcotics
  • Failing to declare High Value Items (including watches, jewelry, designer accessories, etc.)
  • Failing to declare currency over $10,000
  • Failing to declare agricultural items (animal products and other food items)
  • Possession of child pornography

In the case of firearms, child pornography, and narcotics, offenders are usually charged under both the Customs Act and Criminal Code.  These charges are serious and can carry large minimum sentences.  These offences will often include investigations by both the CBSA and the Royal Canadian Mounted Police (RCMP).

Customs Act charges, such as smuggling or failing to declare goods can involve large fines on top of having to pay the outstanding duties and taxes, in addition to the risk of jail.  CBSA Officers can use discretion to either taken seizure enforcement action at the port of entry, where the items are seized and released once a penalty is paid, or refer the case to criminal investigations, in which case an arrest is made and the matter goes before the courts.  The penalties at the court level can involve a period of imprisonment and/or a large fine (for high value items it is often equal to the duties and taxes evaded).  When high value items are seized for failing to declare them, assuming that they are actually admissible to Canada, they will be held until any outstanding penalties are paid.

Certain offences under the Customs Act can lead to a criminal record, such as:

  • Making a false or deceptive statement to a CBSA officer contrary to Section 153(a) of the Customs Act
  • Smuggling under Section 159 of the Customs Act

An experienced customs lawyer can assist you in both the criminal court process as well as in a Ministerial Review of a Customs Act seizure.  The Ministerial Review follows Administrative Law principles and has an adjudicator review the customs seizure to determine if it was correctly implemented.  A successful Ministerial Review can result in the action being overturned or the level of action being adjusted, potentially resulting in reduced fines or other penalties.  In cases of high value items, this can make a significant financial difference.

Having worked for Canada Border Services previously, I am experienced in the nuances of Customs and Immigration law which gives me a different perspective when handling a case involving a Customs Act violation.  I was involved in the seizure of firearms, narcotics, currency and high value undeclared items.  I have since been able to assist my clients with Customs Act charges, saving them both time, money and make sure they receive the best outcome for their case.  Contact me if you have been the subject of a customs seizure to find out what your options are.

2