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

Naturewise: Planting and caring for nature’s future

Stewards help preserve shrinking habitats

Cannings endorsed by David Suzuki

South Okanagan-West Kootenay NDP candidate loading up on endorsements

First aid for mental health coming to Penticton for veterans, families

The course runs Oct. 28 & 29 at the Penticton Trade & Convention Centre

Body of missing Kaleden man found this morning RCMP confirm

Phillip Schuhmacher, 36, was reported missing from his home in on Oct. 3

NDP leader Jagmeet Singh returns to Penticton Oct. 19

He is hosting a rally to boost local NDP candidate Richard Cannings’ campaign efforts

Scheer, Trudeau, Singh haggle over potential minority government outcome

If you believe the polls, it appears the Liberals and Conservatives are neck-and-neck

Canucks beat Stanley Cup champs 4-3 in a shootout

Leivo nets winner, Vancouver dumps St. Louis for fourth straight win

‘The more you test, the more you find’: Beef recalls a sign of success, experts say

Despite appearances, experts say a recent rise in major recalls is not a sign of food supply problems

One year later: Vernon pot stores look back at legalization

Edibles made legal on first anniversary of recreational cannabis

Memorial remembers North Okanagan’s most marginalized

Prayers and flowers for those who have died on the streets

Japanese buyer expands wood pellet contract with B.C.’s Pinnacle

Mitsui and Co. increases contract with Interior energy producer

Great Vernon Pumpkin Race to star in South Korean documentary

Pumpkin Classic event to kick off this weekend with gourd weigh-ins

ELECTION 2019: Have Justin Trudeau’s Liberals really cut middle-class taxes?

Conservative Andrew Scheer vows to cut bottom bracket, NDP’s Jagmeet Singh targets wealth tax

Okanagan candidates’ signs headed to dump

Dozens of signs were picked up for not complying with bylaws, according to the city

Most Read