Kyla Lee, a B.C. attorney specializing in challenging DUI cases, says the new impaired laws are unconstitutional and have created different classes of offenders. (KylaLee.ca)

Impaired driving laws creates different classes of offenders, says B.C. lawyer

Kyla Lee says new impaired laws are unconstitutional and unfair

When Canada’s new impaired driving laws came into effect at the end of last year, they created three separate classes of people, says Kyla Lee, an attorney in the Lower Mainland who specializes in litigating charges of driving under the influence of a substance.

“I like the way there’s the intersection of law and science,” explained Lee, who’s argued impaired driving cases in courts across the Greater Vancouver area and into the Fraser Valley. “Impaired driving (charges) allow me to litigate the Charter, which is very technical and complex, (and) really advocate constitutional (and) scientific issues. It’s such an interesting field.”

But now that the laws around impairment have changed, Lee says many of her clients’ cases have been left “up in the air” because Parliament included very little information in the law for what they intended to imply respectively and prospectively to the three classes of impaired drivers created by the laws.

READ MORE: Early data suggests no spike in pot-impaired driving after legalization: police

If a person was charged on or after Dec. 18, it’s the new laws that govern their case, explains Lee. But for those charged before Dec. 18, or who were in the middle of their trials when the laws changed, there are no rules for how to apply the laws respectively (for past charges) or prospectively (going forward).

“This creates three classes of people (because we don’t know yet how) the law applies to the (latter) two categories, and it’s causing a lot of problems,” said Lee.

“The way the law is currently written, as a number of defense counsel has pointed out, (it also has the) potential to convict somebody who didn’t actually drink and drive, which would be a terrible miscarriage of justice,” said Micheal Vonn, policy director for the BC Civil Liberties Association.

“This entire (new) section of the Criminal Code has set it up so if you’re charged with an impaired driving offense (you’re treated) guilty until you prove yourself innocent …and the deck is completely set up against you,” said Lee.

And “the interesting thing about (all of this), it was the same language that was used in 2008 as putting too much of a burden on a person in a criminal court (because it) violated the presumption of innocence.

“So to call this a huge mess is putting it lightly,” Lee added. And “we can’t really do anything (to change it). We have to wait for somebody to be charged in (an) innocent set of circumstances and have that person challenge the law.”

“In the end, it all comes down to evidence,” said RCMP spokesperson Cpl. Mike Rail. “Road safety is very, very important and it’s obviously one of our focuses … but there are no cookie-cutter cases. We follow our police instinct … and where the evidence takes us, which is quite often to the facts.

“Then we forward a fulsome report to Crown,” who will then disprove or approve charges and conduct any criminal prosecutions.

READ MORE: Canada’s revamped impaired driving law brews ‘potential for injustice’

But because the law was “passed at the eleventh hour … (under) the pressure of (cannabis) legalization, (Parliament) was forced to agree with this unconstitutional law” that has no uniformity across the Canadian legal system.

The day after the laws changed, Lee says she sent out letters on behalf of her DUI clients to try and figure out how their cases would be handled going forward.

“I got different answers from different prosecutors in different courthouses (across the Lower Mainland). There’s not even consensus amongst B.C. Crown Services (on how to handle these cases) … which seems ridiculous, but that’s what Parliament has left us,” said Lee.

When trying to determine a law’s constitutionality, a government must be able to justify any violation of its citizens’ rights, explained Vonn.

“Evidence is key: there must be evidence to support the proposition that the violation of people’s rights will produce the safety outcome (expected).

“This law … does not meet the test that it will meet the evidence (or) that it will save lives,” continued BCCLA’s policy director.

“But (I’m) very confident that (this law will) get shaped through the court system: nobody doubts that many lawsuits and constitutional challenges will be brought (it) … but that’s the shaping (a law like this) will inevitably go through.”


 

@SarahGawdin on Twitter
SarahGawdin on Instagram
Sarah.Gawdin@theprogress.com

Like us on Facebook and follow us on Twitter.

Just Posted

Downtown Kelowna parkade closed for weekend

All vehicles must be removed from Chapman Parkade by Friday evening for ongoing maintenance

Town hall meeting calls West Kelowna residents

West Kelowna council will host the meeting June 27

Kelowna residents talk about museum modernization

The Royal BC Museum’s public consultation continues until June 27.

Funds needed for special diving team to find missing Okanagan kayaker

Zygmunt Janiewicz was last seen on Okanagan Lake May 17

Lake Country councillors want stricter regulations, more signage on public smoking

In 2019, 21 fires in Vernon to Penticton zone have been human caused, some linked to cigarette butts

VIDEO: Acknowledging skeptics, finance minister vows to build Trans Mountain project

Bill Morneau said he recognizes ‘huge amount of anxiety’ in Calgary over future of oil and gas sector

North Okanagan-Shuswap MP defends dedication to constituents

LETTER: Mel Arnold says he is open and accessible

Okanagan smash-and-grab nets electric bike

Rock thrown through front door of Southward Medical Supplies, bike grabbed from near door

Home care for B.C.’s elderly is too expensive and falls short: watchdog

Report says seniors must pay $8,800 a year for daily visits under provincial home support program

B.C. ‘struggling’ to meet needs of vulnerable youth in contracted care: auditor

Auditor general says youth in contracted residential services may not be getting support they need

Okanagan school digs up $2,500 recycling prize

Kalamalka Secondary students recognized for establishing a new culture of recycling

Billboard posted along B.C.’s Highway of Tears to remember missing and murdered Indigenous women

Billboards featuring Indigenous artwork to be placed in Surrey, Kamloops and near Prince George

Driver loses tire while behind the wheel after lug-nut thief strikes in Burnaby

Burnaby RCMP are investigating after two reports of lug-nut tampering in the city this month

Federal cabinet ministers visit Edmonton, Calgary, in wake of TMX approval

Natural Resources Minister Amarjeet Sohi is set to visit Trans Mountain Corp.’s terminal in Edmonton

Most Read