Feb 08, 2022
Evidentiary Issues for Drinking and Driving Cases
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fifth instalment of this paper, outlining evidentiary issues for drinking and driving case law examples in BC.
The following is an excerpt regarding evidentiary issues surrounding samples, statements and disclosure:
Admissibility of Result of Analysis s. 320.31(7)
Subsection 320.31(7) states that voluntarily providing a sample of breath, blood, urine, sweat or other bodily substances may be used as evidence against the individual without notice. The individual need not be warned that they did not need to give the sample, or that the sample may be used as evidence against the individual. This provision has yet to be constitutionally challenged.
Admissibility of Statement s. 320.31(9)
Subsection 320.31(9) provides that a statement compelled by law is admissible for the purpose of justifying a demand for breath or other bodily samples. The section states:
(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.
This provision was constitutionality challenged in R v Korduner, 2021 ABPC 83 an Alberta lower court decision. In Korduner, the accused was involved in a motor vehicle accident. On the way to the hospital after the accident, the accused made statements to a police officer in the ambulance. Those statements were compelled under the Traffic Safety Act and were used as evidence against the accused on a charge of impaired operation and refusing a breath demand.
The accused argued that section 320.31(9) of the Code violated sections 7, 8, 9 and 10(b) of the Charter. The accused relied on the “use immunity” principle to argue a conveyance operator involved in an accident is protected by the principle against self-incrimination. Following the precedents in R v White,  2 SCR 417, R v Powers, 2006 BCCA 454, R v Soules, 2011 ONCA 429, and R v Porter, 2015 ABCA 279 the court in Kroduner concluded s. 320.31(9) violated section 7 of the Charter. The court stated:
 Section 7 of the Charter provides protection for individuals who are required to report an accident. I have already found in Voir Dire #2, that the Accused/Applicant’s statements to the officer were statements compelled by section 71 TSA and that the Accused/Applicant had an honest and reasonable belief that she was statutorily compelled to answer his questions, and thus the principles of White were engaged and those statements provided are protected from any use in subsequent criminal proceedings. Per the reasoning of Powers, Soules, and Porter, use of the compelled answers are not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.
 Section 320.31(9) specifically allows for such a compelled statement to be used to justify a breath demand. The portion of section 320.31(9) dealing with a statement “compelled under a provincial Act” goes directly against the reasoning in White, Powers, Soules, and Porter. It is clear that the Accused/Applicant’s section 7 Charter rights are engaged. I find the above cited authority is determinative of the issue: that allowing a compelled statement under a Provincial Act, including a compelled statement under the TSA, would infringe the Accused/Applicant’s section 7 rights against self-incrimination in a manner not in accordance with the principles of fundamental justice. The Accused/Applicant has demonstrated that section 320.31(9) both engages section 7 of the Charter and that the impugned provision is causally connected to the prejudice arising from the infringement of the principle against self-incrimination.9
However, since the Alberta Provincial Court lacks jurisdiction to declare legislation unconstitutional, the court limited the unconstitutional finding to the accused. Further, the court clarified that the finding was contingent on a section 1 Charter hearing, which to date has not been heard.
The Crown’s disclosure obligations with respect to the proper functioning of the Approved Instrument have now been codified in s. 320.34(1). The prosecutor must disclose information about any breath samples provided pursuant to subsection 320.28 including:
(a) the results of the system blank tests;
(b) the results of the system calibration checks;
(c) any error or exception messages produced by the approved instrument at the time the samples were taken;
(d) the results of the analysis of the accused’s breath samples; and
(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.
Pursuant to s. 320.34(2) the accused may apply to the court for a hearing to determine whether further materials should be disclosed regarding the proper functioning of the Approved Instrument. The application must be in writing and set out detailed particulars of the information the accused seeks to have disclosed and the likely relevance of that information to determining whether the Approved Instrument was in proper working order (see s. 320.34(3)). The disclosure application hearing must be held at least 30 days before trial.
Drinking and Driving Cases in 2023
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
Feb 01, 2022
Increased Penalties for Drinking and Driving
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fourth instalment of this paper, explaining the increased penalties for drinking and driving, including dangerous operation of a motor vehicle causing death.
Increased Penalties for Drinking and Driving
The following is an excerpt regarding some of the increased penalties for a conviction of a criminal driving offence:
Mandatory minimum sentences now apply to dangerous operation causing bodily harm and causing death as well as fleeing the scene of an accident causing bodily harm and death.
There are now tiered fines for having a BAC over certain thresholds. A first conviction for having a BAC equal to or exceeding 120mgs% but less than 160mgs% will result in a minimum fine of $1500. If the BAC is greater than 160mgs%, the minimum fine is $2000. The minimum fine for a first offence for refusing to provide a breath sample is doubled to $2000.
The maximum jail sentence for impaired driving and refusal to provide a sample increased from 5 years to 10 years if prosecuted by indictment. This will result in automatic deportation for convicted foreign nationals or permanent residents.
Driving prohibitions under the Code for impaired driving, over .08 and refusal are:
- For the first offence, a minimum of 1 year to a maximum of 3 years (plus any period of imprisonment).
- For the second offence, a minimum of 2 years to a maximum of 10 years (plus any period of imprisonment).
- For each subsequent offence, a minimum of 3 years with no maximum (plus any period of imprisonment).
There are also mandatory prohibitions under the British Columbia Motor Vehicle Act for Criminal Code driving convictions.
Section 320.22 sets out aggravating features that the court must consider on sentencing. The factors are:
(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.
This list of aggravating factors is not exhaustive.
A first offence for over .08 with a BAC below 120 mgs% is $1000. A first offence with a BAC in excess of 120mgs% carries a mandatory increased fine ($1500 if the readings are between 120 and 160 mgs% and $2000 if more than 160 mgs%). Therefore, for first offenders, the aggravating feature of having a BAC in excess of 120mgs% is already accounted for by the mandatory minimum sentence. However, this aggravating feature is not accounted for for subsequent offences or if bodily harm or death is involved.
 Cases that have considered whether a vehicle is a large motor vehicle include: R v Hillier, 2020 CanLII 85560 (NLPC) at paras 33-34 (Silverado truck); R v Sivakumaran, 2021 ONCJ 307 at paras 37-38 (Ford pickup truck); R v Caines, 2019 ONCJ 348, at para 26 (Dodge Ram pickup truck); R v Saxby, 2006 ABPC 201 at para 2, (Kenworth tractor); R v Dhadwal, 2012 ABPC 349 at paras 5, 25 (unspecified truck); R v Fairchild, 2017 ONCJ 658 at paras 1, 30 (Ford Escape SUV); R v Burger, 2015 ABPC 224 at paras 1, 68 (Semi-truck); R v Hallock, 2014 ABPC 232 at para 22 (Ford F150); and R v Bagri, 2016 BCCA 272 at paras 7, 17 (2003 Volvo tractor truck weighing 8575kg).
Jan 10, 2022
Crown Expert No Longer Required for Blood Alcohol Samples Outside Two Hours – s. 320.31(4)
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021.
This is the third instalment of this paper, explaining how the Crown Counsel is no longer required to consult an expert witness for samples taken more than two hours after driving.
Crown Expert No Longer Required for Blood Alcohol Samples in BC Outside Two Hours – s. 320.31(4)
The following is an excerpt explaining that Crown experts are no longer required to calculate blood alcohol for samples taken more than two hours after driving:
Under both the old and new provisions, samples of a driver’s breath or blood are supposed to be taken within two hours of the time of driving. Under the old provisions, samples taken within two hours of the time of driving were deemed to be the driver’s BAC at the time of driving. If the samples were not taken within two hours of driving, the Crown was required to call an expert, usually in the form of a toxicologist, to calculate (read back) what the BAC was at the time of driving.
Under the new provisions, an expert is no longer required if the samples were taken after the 2-hour window. Subsection 320.31(4) of the Code provides a formula that allows a court to do its own BAC calculation back to within two hours of the time of driving. The read-back need only go as far back as to within two hours of the time of driving (as opposed to at the time of driving) because of the new definition set out in 320.14(1)(b) discussed above. Section 320.31(4) states:
For the purpose of paragraphs 320.14(1)(b) and (d), if the first of the samples of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20 mg of alcohol in 100 mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1) or (2), as the case may be, plus an additional 5 mg of alcohol in 100 mL of blood for every interval of 30 minutes in excess of those two hours.
According to the government, the elimination rate of 5 mg/100mL for every 30 minutes reflects a very conservative estimate of the rate at which alcohol leaves the bloodstream. There is scientific consensus that alcohol leaves the bloodstream at a rate greater than 5 mg/100mL per 30 minutes even in individuals who process alcohol slowly (other than in cases of near-complete liver failure that would ordinarily render a person incapable of driving). Accordingly, a BAC calculated at this rate will be lower than the absolute minimum scientifically possible BAC that an individual will have had within the two-hour window.
Practitioners should keep in mind that although samples taken after two hours of the time of driving can be calculated back to within two hours, there is still a requirement in section 320.28 that samples of breath or blood be taken “as soon as practicable” (similar to the old provisions). In deciding whether the tests were taken “as soon as practicable”, the whole chain of events must be considered bearing in mind the Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon as practicable” requirement is to be applied with reason.
“As soon as practicable” is determined on a case-by-case basis and it is not an element of the offence the Crown must prove. Where the accused wishes to argue the samples were not taken as soon as practicable, the accused must challenge the Crown’s case by cross-examining the officer(s) on the various periods. (The accused cannot “lie in the weeds” as they say). Where the peace officer is unable to explain the delay, the defence can argue that the test was not administered as soon as practicable.
 Department of Justice, Charter Statement: Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts (11 May 2017), online: <http://www.justice.gc.ca> [Department of Justice].
 R v Vanderbruggen, 2006 CanLII 9039 (ONCA).
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the second instalment of this paper, explaining the new legal blood alcohol limit in BC, and timing of the blood alcohol reading.
Legal Blood Alcohol Limit is Now 79 mgs%
The following is an excerpt regarding a change in the legal blood alcohol limit:
Under the previous regime, it was an offence to have a blood alcohol concentration (BAC) in excess of 80mgs% (80 mgs of alcohol in 100ml of blood). It is now unlawful to have a BAC “equal to or exceeding” 80 mgs%. The new formulation was a response caused by rounding down BAC results to the nearest 10th mg%.
Time of the Blood Alcohol Reading
The following is an excerpt outlining how the scope of the offence has expanded from the time of driving to within two hours of the time of driving, and how two defences have been eliminated:
One of the most significant changes to the legislation is that a driver’s BAC no longer needs to be in excess of the legal limit at the time the driver had care and control of the conveyance. It is now an offence to be in excess of the legal limit within two hours of operating a motor vehicle. The predecessor legislation made it an offence to have a BAC in excess of the legal limit at the time of driving. This meant there had to be a temporal overlap between a BAC in excess of the legal limit and the time of driving. That overlap no longer applies.
Section 320.14(1)(b) states:
Everyone commits an offence who
(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
The curious impact of this change is that the elements of the offence of being in excess of the legal BAC limit no longer has to overlap in time with the element of care and control. Without subsection (5), this amendment would allow someone to be convicted of an over .08 offence because their BAC was in excess of the legal limit within 2 hours of driving, even though their BAC was below the legal limit at the time of driving. Thankfully the definition is subject to the limitations prescribed in subsection 320.14(5) which states:
(5) No person commits an offence under paragraph (1)(b) if
(a) they consumed alcohol after ceasing to operate the conveyance;
(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and
(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.
This new definition defeats two defences: bolus drinking; and the intervening drinking defence.
Bolus drinking refers to situations where a driver claims they consumed alcohol just before or during driving, but they were not over the legal limit at the time of driving because the alcohol was not fully absorbed in their blood until the time of testing. Because the bolus drinker did not consume alcohol after ceasing to operate the conveyance, they can not avail themselves of the exception prescribed in subsection 320.14(5)(a).
The intervening drinking defence is usually advanced when there has been a motor vehicle accident. The defence refers to situations where the driver claims they consumed alcohol after an accident such that they were over the legal limit after the accident but not at the time of driving. This defence is eliminated under the new definition by the operation of subsection 5(b), which provides that it is not an offence to be in excess of the legal limit within 2 hours of driving if the driver had a reasonable expectation they would be required to provide a sample of breath or blood.
It is difficult to conceive of all the circumstances in which a driver would reasonably be expected to provide a sample of breath or blood. However, being involved in a motor accident can be one of them.
This is reflected in R v Mair,  OJ No 2215. In that case, the police received a report that a vehicle drove into a tree then left the scene. The police followed a trail of radiator fluid from the scene to a driveway. When the police questioned the accused, he confessed to driving the vehicle. The accused was arrested and taken to the police detachment and provided a sample in excess of the legal limit.
The accused gave a defence of intervening drinking. He testified at trial that he consumed two pints of beer at a pub prior to the accident. After the accident, he returned home and drank 60-70% of a bottle of whiskey. The accused said he was shaken from the accident, so he drank that amount in about 25 minutes.
This case pre-dated the 2018 amendments as the offence was alleged to have occurred in 2017. However, the court commented in obiter about whether under the new provisions the accused would have had a reasonable expectation to provide a breath sample in the circumstances. The court conclude that a driver who got into an accident would have difficulty establishing they did not have a reasonable expectation to provide a sample. At para. 38 the court stated:
I would note the recent amendments to the Criminal Code which provide new specific rules governing post-driving alcohol consumption. Under the new s. 320.14(5), Mr. Mair would have been required, in order to succeed in his defence, to establish that he had no reasonable expectation that he would be required to provide a sample of his breath. Given the fact that he had just been involved in an accident, Mr. Mair would have considerable difficulty establishing that. He would also have had to provide toxicological evidence to establish a BAC consistent with post-driving consumption.
Similarly, in Madadi-Farsijani, 2021 ONCJ 196 the accused put forward a defence of intervening drinking. The accused drank one beer with a friend then drove home. On the way home, the accused rear-ended a vehicle. He testified the collision caused him to have a flashback to a prior traumatic driving experience in Iran. Upset by the flashback, the accused grabbed one of the bottles of whiskey he purchased earlier in the day and drank about 10 ounces prior to exiting the vehicle. He left the opened bottle on the front passenger seat while the other unopened bottle remained on the rear floor of the vehicle.
The court concluded that an intervening drinking defence could not succeed because in the circumstances of this accident it was reasonable to expect the accused would be required to provide a sample. At paras. 28 and 29 the court stated:
Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.
 Backgrounder for former Bill C-46, An Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, p 23.
 In Madadi-Farsijani, the accused also filed a constitutional challenge to the Over .08 provision on the basis the section violates ss. 7 and 11(d) of the Charter. The court deferred dealing with the constitutional challenge until it determined the accused’s guilt under the existing provisions. To date, the Charter application has yet to be heard. In R v Kaur, 2020 ONCJ 538 the accused filed a Charter application regarding ss. 320.14(1)(b) and 320.31(1). Due to a scheduling conflict, the Charter challenge was deferred to the end of trial. The challenge has yet to be heard.
If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
Dec 23, 2021
Changes to Drinking and Driving Legislation
On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the first instalment of this paper, explaining the changes to drinking and driving legislation in BC.
Changes to Drinking and Driving Legislation
The following is an excerpt regarding two major changes to the language in the Criminal Code–“motor vehicle, vessel, an aircraft or railway equipment” is now “conveyance” and “forthwith” is now “immediately”:
The amendments were designed to simplify, clarify, and modernize the cumbersome language from the predecessor sections. The most obvious of these changes is the use of the term “conveyance” instead of the awkward phrase “motor vehicle, vessel, an aircraft or railway equipment” which was frequently repeated throughout the predecessor sections. This change makes the provisions much easier to read.
Another goal of the amendments was to change the language of the provisions to reflect the interpretations of the courts where possible. As one example, in section 320.27 which, allows the police to make an Approved Screening Device demand at the roadside, the term “forthwith” has been replaced with the term “immediately”. This change reflects how the term “forthwith” has been interpreted by the courts. It is also an example where the language has been modernized with more plain language text.
Alcohol Screening Provisions s. 320.27(2): ASD Demand
The following is an excerpt regarding the new police power to make roadside breath demands without reasonable suspicion of alcohol in the driver’s body. Mr. Robinson also explains issues with regards to the possession of the screening device and the timing of the test:
Although the changes made by the 2018 amendments are significant, the general structure of the legislation remains the same. Parliament has maintained the two-step process for the detection and enforcement of driving in excess of the legal blood alcohol limit. Like the predecessor legislation, the first step provides for the administration of a screening test at or near the roadside immediately after the interception of an operator. The second step provides for a breathalyser test into an Approved Instrument at a police station.
The threshold test for making an Approved Screening Device (ASD) demand at the roadside has changed significantly. Under the predecessor section, the police were required to have “reasonable suspicion of alcohol in the body” before making an Approved Screening Device demand. That remains the case under s. 320.27(1).
However, under s. 320.27(2), the police also now have the authority to demand a driver provide a sample of breath into an ASD without any suspicion that a driver has been drinking. Under the heading “Mandatory Alcohol Screening” s. 320.27(2) states:
320.27(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.
At least three Provincial Court decisions have held that section 320.27(2) passes constitutional muster. In R v Blysniuk, 2020 ONCJ 603 the Ontario Court of Justice found s. 320.27(2) violates sections 8 and 9 of the Charter but those violations are saved by section 1. In R v Morrison, 2020 SKPC 28 and R v Kortmeyer, 2021 SKPC 10 the Saskatchewan Provincial Court found s. 320.27(2) does not violate s. 9, but it does violate s. 8, and that violation is saved by s. 1.
There are three requirements for a valid demand under s. 320.27(2).
- The demand must be made in the course of the lawful exercise of police powers;
- The demand must be made by a peace officer who has an ASD in their possession.
- The demand must be made, and the test must be administered – immediately.
With respect to the first of these criteria, the police have always had the power to randomly stop drivers for safety and compliance reasons like checking for driver’s licenses, insurance, mechanical fitness, and driver sobriety. These stops have long been held constitutional. Under s. 320.27(2) the police now also have the authority during a traffic stop to ask the driver to blow into an ASD in the absence of any belief the driver has consumed alcohol.
With respect to the requirement that the officer has the ASD in their possession, in R v Bath, 2021 CanLII 35120 the Newfoundland Provincial Court concluded that it was not necessary for an officer to have the ASD on their person for a lawful demand under s. 320.27(2). The accused argued that the demand made by an officer was invalid because another officer got the ASD out of the trunk of the police vehicle, unboxed it, readied the device and administered it to the accused. The court concluded that it was not necessary for an officer to have the ASD on them to legally avail themselves of s. 320.27(2). At para. 34 the court said:
As a matter of law, possession includes joint possession. The ASD was in the trunk of the police car, and both police officers had both knowledge and control of the ASD. Cst. Crann was, as a result, in possession of the ASD. As a result, I conclude that Cst. Crann’s demand for ASD breath test(s) was valid, despite the fact that the ASD was in the trunk of the police car when he made the demand.
The Alberta Transportation Safety Board considered the immediacy and possession requirement in R v MacDougall (Re), 2020 ABTSB 2264. In that case, a police officer witnessed the driver throw a cigarette out of the driver’s side window while swerving his truck from side to side. The officer stopped the vehicle and asked the driver to wait while he called another officer to bring an ASD. The ASD arrived 5 minutes after the accused was pulled over and the officer read the accused the ASD demand under s. 320.27(2). The accused was then arrested for refusing to provide a sample and issued a license suspension under the Alberta Traffic Safety Act.
The demand was invalid. The Board found the immediacy requirement under section 370.27(2) requires that the process be “minimally intrusive and as prompt as possible under the circumstances”. In this case, the driver was already detained by the time the second officer arrived with the ASD and read the demand. Therefore, the breath demand was not “immediate”. At para. 21 the Board said:
In the matter at hand, the Board finds that the MAS [Mandatory Alcohol Screening] demand was not made immediately and was, therefore, invalid. Although Cst. McIsaac may have been the one to read the demand to the Appellant upon his arrival, the Appellant had already been detained by Cst. McDougall for the purpose of conducting a MAS. The immediacy requirement of an MAS demand pertains to the detainee and to the length and purpose of their detention. It does not relate to the police officer who verbalizes the demand, and the promptness with which they do so.
The fact that the police officer who eventually read the demand had the ASD in his possession was immaterial.
The Alberta Transportation Safety Board came to a similar conclusion in Kalyn-Bekevich (Re), 2020 ABTSB 1940 and excluded the evidence of the breath sample under s. 24(2) of the Charter.
ASD Demand: Summary
In summary, an officer does not need to physically possess the ASD at the time of the demand. Having the device in a nearby vehicle is sufficient. Possession includes joint possession by another officer at the scene. The promptness with which an officer can administer the test will inform the analysis about whether the officer possessed the device at the time of the demand. If a first ASD malfunctions, use of another ASD may be lawful as long as the switching of the devices does not result in delay.
 See R v Dedman,  2 SCR 2, R v Hufsky,  1 SCR 621 and R v Ladouceur,  1 SCR 1257.
 Bender (Re), 2019 ABTSB 1752.
If you need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.
Nov 09, 2021
The Vicious Cycle of Driving Prohibitions in BC
It is not uncommon for drivers in British Columbia to get caught in a vicious cycle of driving prohibitions. This is particularly common with novice drivers, and it can cause some people to be unable to graduate to a full licence for 5-10 years. This cycle of driving prohibitions BC can have compounding negative consequences for a driver’s employment, familial obligations, and financial well-being.
What Is Driving Prohibition?
The driving prohibition cycle begins with an initial prohibition issued by RoadSafetyBC, the government body that monitors the driving records of licence holders in British Columbia. Drivers are brought to RoadSafetyBC’s attention when traffic tickets or alcohol or drug infractions are added to driving records, subject to certain thresholds.
Class 7 or 8 drivers (N or L) receive the most scrutiny. According to the Driver Improvement Program Policy and Guidelines, Class 7 drivers can be prohibited for any single ticket carrying two or more demerit points, or any single alcohol or drug-related infraction.
Drivers with full licences (Classes 1 – 6) are given more latitude but are still monitored. For example, two high-risk offences (excessive speeding or cell phone tickets) within a certain time period will result in a lengthy prohibition.
Prohibitions are absolute and measured in months, not weeks. Prohibitions from RoadSafetyBC will not allow certain hours where you can drive for work or school.
What Happens After Your Driving Prohibition Finishes?
Following the conclusion of a driving prohibition, a driver will be on probation. RoadSafetyBC will scrutinize the driver’s record for the next two years, or until the driver gets their full licence. If further traffic, or alcohol or drug-related infractions are added to the driving record, another prohibition will issue. Further, a subsequent prohibition is almost certain to be longer in duration than the first prohibition. In this way, the vicious cycle of prohibitions continues. The driving prohibitions get longer and the probationary period starts all over. Driving during a driving prohibition will lead to a driving while prohibited charge which are dealt with in criminal court.
While a lawyer experienced in driving matters can be of assistance at any time, the best way to avoid any disruption in your ability to drive, and to avoid falling into the cycle of prohibitions, is to obtain legal advice at the earliest stage. If you have received a driving prohibition, been caught driving while prohibited or placed on novice driver probation call Filkow Law for help.
The New Impaired Driving Laws: What Is Not Being Said
The Ministry of Public Safety and Solicitor General issued a News Release on April 27, 2010. The Release trumpeted that “The province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”
Subsequent to this Release and as an extension of same, the Office of the Superintendent of Motor Vehicles issued bulletins spelling out the penalties which will be part of the new regime. A comparison of the current and new penalties can be found at the foot of this article.
Fundamental to the new regime will be an unequivocal acceptance of a police officer’s report of what took place at a roadside stop upon a breathalyzer test being administered or upon one being refused. If the reported reading is a fail or if the officer reports a refusal, the new penalties take effect immediately with very limited administrative appeal rights with no true prospect of success. The ostensible intention, as amplified below, is not to engage drinking drivers in the judicial process except in a limited number of situations.
The Backgrounder to the Province’s Release stresses: “Major amendments to impaired driving sections of the Motor Vehicle Act (MVA) will ensure impaired drivers caught in BC face instant loss of their driving privileges (90 days) and impoundment of their vehicles (30 days).” There are other corollary mandatory requirements, i.e. completing the Responsible Driver Program and installing an ignition interlock device which must be utilized for a minimum of one year. Both these programs are costly. They are without exceptions for hardship or otherwise. In addition, the financial penalties are substantial. For example, a driver with no relevant history failing a breath sample at roadside or refusing to provide a sample will face minimum fines and fees of approximately $4060.
The Release does add that failing or refusing drivers may also face criminal charges.
What the Release does not say is that there is every indication that criminal charges will only be laid in particularly aggravated circumstances (such as an accident or where there is a prior related conviction) which going forward will be increasingly rare. The effect of this is that the overwhelming majority of drivers, tested under the new regime, will have no meaningful recourse to challenge what the police say took place at the roadside. The peace officer will record the reading of the Approved Screening Device (ASD) or alternatively will document the alleged refusal and then “the curtain drops.”
While right-minded citizens of British Columbia are acutely concerned about drinking and driving, there is every reason to be discomforted by this ‘machine type of justice.’ The ASD was intended to be a screening mechanism under the Criminal Code to assist a peace officer in evaluating the driver’s condition as to sobriety. The ASD does not have a record keeping or memory capacity. The instrument can be operated improperly. The new legislation, however, effectively allows the reading to be definitive. There is no opportunity to challenge the instrument, no opportunity to cross examine the officer as to the integrity of what occurred and no opportunity to challenge the manner in which the ASD was operated. An instrument intended only as a screening device is now elevated to a determinative role.
The new regime reposes extraordinary power and authority in a peace officer. Failure to allow for a criminal defence process disregards the unfortunate reality that there are zealous or wrongly disposed peace officers or officers who may mismanage the instrument or simply make a mistake. No cross-examination or scrutiny of the officer takes place under this regime.
What is not being said is that highly culpable behaviour such as driving while drunk will now largely be outside the criminal process. The Office of the Superintendent of Motor Vehicles on its website stresses that the “province is introducing changes to give BC the toughest provincial impaired driving legislation in the country. If you drink and drive after the new law comes into effect on September 20, 2010, you can count on penalties adding up to between $600 and $4060 – even if it’s the first time you’re caught – and more time off the road.”
The corollary of this new approach, though, is that in not facing criminal charges, the driver will not be exposed to the instructiveness of the criminal justice system. There is significant value in the experience of retaining counsel, facing a public record for criminal behaviour, facing denunciation, and, on some occasions, receiving thoughtful remarks from a presiding judge. There is an irony, a disconnect that behaviour which is such a serious threat to public safety, will now largely avoid the criminal process.
Also unspoken and related to the previous paragraph is that the province clearly intends to save serious treasury by allocating significantly less resources to what has been the criminal process, i.e. police investigations, Crown prosecutions and trials. Ostensibly, the motivation is to free up these resources to allocate to ‘more serious’ criminal behaviour. If that is so, the priorities are misguided. There is probably no form of criminal behaviour more pervasive than drunk driving. There is probably no criminal behaviour more capable of effective deterrence through public denunciation and the related process. It is also a reality that police officers should be investigating criminal behaviour; this behaviour should not be given diminished significance.
The volume and the cost of the impaired driving problem should not be a rationale for compromising individual rights and protections. There are no practical or genuine checks and balances under this new regime. Criminal law has always required a very high standard of proof and a compelling burden on the Crown to meet its case. What the Federal Government sees as criminal will now be something else – effectively an administrative regulatory matter. It would seem reasonable to expect that the new legislation will face a challenge in seeking to displace the federal criminal law power under s. 91 of the Constitutional Act.
What is not mentioned is that there will be a disparity between incidents where there is an ASD handy and those incidents where there is not. Any driver pulled over in the latter circumstances will likely be subject to the old regime and will in these limited cases have access to the criminal justice system.
Indicative of how far reaching is this philosophical change by the BC government is the Warning protocol. This Warning protocol will apply to drivers whose apparent readings are below the legal limit of .08% blood alcohol content and may not be demonstrating any signs of impairment.
As outlined above, a driver who fails (above .08%) or ‘refuses’ to provide an ASD sample will be given a 90-day suspension at roadside, will be subject to a one year Interlock Ignition program and financial penalties which amount to $4060. His or her vehicle will be impounded for 30 days. The Warn range is a reading of .05 to .08% (some ASDs are calibrated to .099%). This results in an immediate 3-day suspension, a 30-day impoundment and minimum fines and fees of about $600. This is for the first warn in 5 years. A second warn in the same period draws a 7-day suspension, a longer period of impoundment and minimum fines and fees of $760. A third time warning within 5 years carries with it a 30-day suspension, a 30-day impoundment, a one year Ignition Interlock program and a minimum financial penalty of $3650. Three beers within a two hour period would put virtually anyone in the Warn range. There is again no practical opportunity to challenge these consequential penalties and, in these cases, for not behaving in an illegal manner.
The province’s express rationale is that enforcement of drinking and driving offences will be far more expedient under the new regime. It characterizes the new regime as the toughest driving laws in the country. While the penalties under the new laws are certainly swift and severe, the intended approach avoids the criminal justice system and allows a matter of serious legal consequence to be technologically and summarily resolved at the instance of a peace officer whose fairness and ability are taken as a “given.” In this author’s view this departure from the honoured protections is a matter of concern. A better alternative would be to ensure greater resources as necessary to expedite the process which preserves the rights and protections of individuals.
 Ministry of Public Safety and Solicitor General, News Release, 2010PSSG0026-000472, “B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS” (27 April 2010).
 See Appendix: Office of the Superintendent of Motor Vehicles, online: CURRENT and NEW Penalties Comparison Chart <http://www.pssg.gov.bc.ca/osmv/publications/docs/impaireddriving-currentandnewpenalties.pdf>.
 Ministry of Public Safety and Solicitor General, Backgrounder, 2010PSSG0026-000472, ” B.C.’S IMPAIRED DRIVING LAW TO CHANGE” (27 April 2010).
 The Supreme Court of Canada held in R. v. Orbanski,  S.C.J. No. 37, that there is no entitlement at the roadside to be advised of or to receive counsel as the evidence obtained would only go to the police officer’s reasonable grounds to make a breathalyzer demand. The new legislation extends that principle to a situation of a very different character.
 Office of the Superintendent of Motor Vehicles, online: Impaired Driving <http://www.pssg.gov.bc.ca/osmv/impaired-driving/index.htm>.
© By Kevin A Filkow
Dec 12, 2020
What Is and How Do You Get a Driving Prohibition?
RoadSafetyBC issues driving prohibitions to both new and experienced drivers who receive tickets on their driving record. In McEachern v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 195, the BC Court of Appeal confirmed that RoadSafetyBC can issue driving prohibitions if it determines your driving record is 1) unsatisfactory, and that 2) it would be in the public interest to issue a prohibition. The public interest includes deterring poor driving behaviour. RoadSafetyBC alone decides these factors and is afforded significant deference in those determinations.
Driving prohibitions in BC: Why you should dispute your tickets
If you receive a ticket, you should consider disputing it for a number of reasons, not least of which is that you can be prohibited from driving for receiving even a single ticket as a new driver, or as few as 2 tickets as an experienced driver. If you pay your ticket, fail to dispute your ticket, miss your hearing, plead guilty, or are convicted of the offence, the violation will go on your record, and will be used against you by RoadSafetyBC in deciding whether to issue a prohibition. Also, an entry on a driving record is permanent.
What happens when you receive a driving prohibition?
If RoadSafetyBC decides to prohibit you, they will send you a Notice of Intent to Prohibit by mail to the address on file for you. You should make sure you that you keep your address updated with ICBC.
A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. You are given 21 days from the date on the Notice of Intent to Prohibit to prepare your submission as to why a driving prohibition should be revoked or why it should be shortened. If you provide submission within the 21-day timeline, your prohibition will be put on hold until a determination is made on your submissions.
Notice of driving prohibition in BC
A Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving. You will receive a Notice of Prohibition if you fail to respond to a Notice of Intent to Prohibit that was sent to you, if you are serving another prohibition already, or you are on probation. You can apply to review a Notice of Prohibition. However, unlike with a Notice of Intent to Prohibit, the prohibition will not be placed on hold, meaning you will serve the driving prohibition during RoadSafetyBC’s review of your submissions.
If you do not acknowledge your Notice of Prohibition, a police officer can serve you with the prohibition at the roadside. Generally, you will be permitted to drive home, but thereafter, your prohibition will commence, and you cannot drive for any reason until your prohibition ends.
In addition to reviewing your prohibition with RoadSafetyBC, you can seek judicial review of RoadSafetyBC’s decision to prohibit you by appealing to the BC Supreme Court. However, RoadSafetyBC has new policies and guidelines. The updated Driver Improvement Program Guidelines change the timelines for appealing your driving prohibition to the BC Supreme Court.
Call Filkow Law if you receive a driving prohibition
Driving prohibitions can obviously have major effects. If you receive a Notice of Intent to Prohibit, or a Notice of Prohibition in BC, or any driving prohibition, you are welcome to call our office for advice and representation.
Apr 15, 2020
When is Excessive Speeding Dangerous Driving?
The Supreme Court of Canada has ruled that excessive speeding can amount to dangerous driving, even if the speeding is for a short period of time.
Is Excessive Speeding A Criminal Offence?
When it comes to dangerous driving, the question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences as opposed to purely civil consequences? This is a question of degree. We all make mistakes and do dangerous things when we drive. We speed, sometimes excessively, and make bad decisions, like speeding up instead of slowing down when the light turns yellow. Every time we change lanes without doing a shoulder check it’s potentially dangerous to other drivers. But not all of us are charged with or convicted of dangerous driving under the Criminal Code of Canada when we engage in these behaviours. Normally we are issued a motor vehicle violation ticket which can be challenged in traffic court. For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide. Not all of our bad, or even dangerous driving behaviour, should result criminal sanctions. However, the recent case from the Supreme Court of Canada in R v. Chung 2020 SCC 8 signals that the net of driving behaviours captured by the offence of criminal dangerous driving is indeed wider than previously believed.
Related: BC Driving Prohibition FAQ
On the morning of Saturday, November 14, 2015, Mr. Chung drove his vehicle at almost three times the speed limit towards the intersection of Oak Street and West 41st Avenue in Vancouver and crashed into a left-turning vehicle. It was not raining, but the road was wet. Traffic was light around the intersection at the time, but other cars were present. The speed limit for both streets is 50 km/h, but the court heard evidence that drivers generally go above that speed limit. Both roads are wide and straight and have dedicated left turning lanes. A dashboard camera video from another vehicle captured 4.9 seconds of the event. Over the span of a block, Mr. Chung had moved into the curbside lane, passed at least one car on the right, and accelerated from 50 km/h to 140 km/h before entering the intersection. The trial judge found that Mr. Chung was not inattentive nor was he engaged in any dangerous conduct prior to this one block span. Mr. Chung was driving a powerful vehicle that could accelerate quickly. As Mr. Chung approached the intersection going north along Oak Street, there was a Toyota in front of him making a right turn. As the Toyota was turning right, the other driver started to make his left turn from going southbound on Oak Street to eastbound on West 41st Avenue. At this point, Mr. Chung started braking, narrowly missed hitting the Toyota, and collided with the victim’s car at a speed of 119 km/h. The driver of the left-turning vehicle died at the scene. Mr. Chung was charged with dangerous driving causing death.
Criminal Speeding In Canada: How Dangerous Driving is Determined
Generally speaking, all crimes are composed of two elements: a “guilty act” (referred to in Latin as the “actus reus“) and a “guilty mind” (referred to in Latin as the “mens rea“). To be guilty of a crime, a person must do something that is against the (criminal) law. This is the “guilty act” (“actus reus”). But something has to make the person criminally (as opposed to civilly) responsible for what they’ve done. This is called the “guilty mind” or “mens rea” in Latin.
For some crimes, like dangerous driving, a person can be responsible even if they don’t mean to do anything wrong. Instead, the Judge will look at what an ordinary, sensible person (a “reasonable person”) would have done. If the manner of driving of the accused person and the “reasonable person” are very different, this is considered a “marked departure”. In a case involving a charge of dangerous driving, in assessing a driver’s guilty mind the courts consider whether the manner of driving constitutes a “marked departure” from the manner of driving of an ordinary reasonable person. Driving in a manner that is “marked departure” from that of a reasonable person is the guilty mind for crimes like dangerous driving. The actus reus for this crime is driving in a way that is dangerous to the public.
What constitutes a “marked departure” from the manner of driving of an ordinary reasonable person is a question of degree. Judges in Canada have struggled to apply this test. That’s because dangerous driving attracts criminal as opposed to purely civil consequences. The question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences. For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide. People drive badly every day. People speed, often excessively, and driver’s make poor decisions that result in crashes. But not everyone who speeds, even excessively, or makes a poor decision that results in a crash is charged with or convicted of dangerous driving. If it did, our courts would be inundated with dangerous driving cases, and too many Canadians would have criminal records. Consequently, not all bad driving or even dangerous driving (excessively speeding for example) means the person should be convicted of dangerous driving. The driving behaviour must also constitute a “marked departure” from that of an ordinary reasonable person.
Criminal Speeding Offences In Canada: R v. Chung Explained
The experienced trial judge said Mr. Chung’s extreme speeding over a short distance met the requirement for the guilty act but he didn’t think Mr. Chung had the “guilty mind” or mens rea. He said even though tragic consequences ensued, the brief period of speeding, on its own, wasn’t enough to establish the “marked departure” required for the offence of dangerous driving.
The Crown appealed. The British Columbia Court of Appeal said the trial judge made an error by concluding that speeding over a short period of time wasn’t enough to show a “marked departure” from that of a reasonable person. The BC Court of Appeal concluded: “In this case, I cannot understand how one could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver”. The Court of Appeal replaced the “not guilty” finding with a “guilty” finding. Mr. Chung appealed this decision to the Supreme Court of Canada.
The majority of judges at the Supreme Court of Canada agreed that the trial judge erred. They said the trial judge focused on the fact that Mr. Chung’s speeding was for a short period of time but this wasn’t the right thing to focus on. The trial judge should have looked at whether a reasonable person would have foreseen a danger to the public and what the reasonable person would have done in the situation. The trial judge should have compared this to what Mr. Chung did, and then decided if his conduct was a “marked departure” from that of the reasonable driver. The majority said that Mr. Chung’s conduct was a “marked departure.” Like the BC Court of Appeal, the majority judges at the Supreme Court of Canada said a reasonable person would have foreseen that quickly accelerating toward a major intersection at a high speed would create a risk, almost immediately, of hurting someone. The majority of judges said that a reasonable person understands that driving, by nature, is risky. They said the faster someone drives, the harder they accelerate, and the more aggressively they deal with traffic, the more risky it becomes. They said that even careful driving can have tragic results. But some conduct, like the driving in this case, is dangerous enough that it deserves criminal punishment. The majority confirmed that Mr. Chung was guilty of dangerous driving causing death. It is important to note that the “marked departure from the ordinary reasonable driver” was the conduct of approaching a major intersection at three times the speed limit and not the fact that a crash ensued or that the other driver was killed.
The problem with this approach is that from a practical perspective, a charge and conviction for dangerous driving is entirely consequence-driven, even though neither the guilty act nor the guilty mind elements of the test for dangerous driving even consider the fact that there was a crash. The reality is that if Mr. Chung had driven excessively through a major intersection and there was no crash, he would have been issued a ticket for excessive speeding and his vehicle would have been impounded for 7 days. The conviction would have been recorded on his driving record only and he would not have incurred a criminal record. In those circumstances, Mr. Chung would not have been charged, let alone convicted, of dangerous driving. This is the case, even though both the “guilty act” and “guilty mind” elements of the offence are the same regardless of whether there is a crash. The guilty act is approaching a major intersection at three times the speed limit. The guilty mind is that this behaviour constitutes a marked departure from the conduct of an ordinary reasonable driver. Note that neither element relies on the consequence of a crash. Yet those that do crash will be charged with dangerous driving and those that do not will not.
Charged With A Criminal Driving Offence In BC? Call Filkow Law
Everyone charged with such a serious offence should contact a lawyer well versed in driving offences and driving law in order to receive proper legal advice and representation. Filkow Law has extensive experience with driving offences, such as criminal speeding in Canada. Contact us if you need assistance.