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Vancouver Criminal Law Blog
Acumen Law Corporation > Blog (Page 66)

Worthy goals, harsh consequences

The roadside testing devices that now are judge and jury are not always accurate

Mario Knezevic’s family arrived from Europe to help him celebrate his bravery medals for rescuing and resuscitating a drowned two-year-old.

He didn’t expect he would also have to introduce them to B.C.’s new arbitrary, anti-drunk-driving program and its severe, some might even say draconian, punishments.

More importantly, perhaps, he was surprised it left him with such a bitter feeling of being treated unfairly and far too harshly.

And he is one of many thousands, if anecdotal evidence of lawyers is to be believed.

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Immediate roadside prohibition challenge

The constitutional challenge to the Immediate Roadside Prohibition regime was heard in the B.C. Supreme Court last week. The arguments have all been completed now, so all there is left to do is wait for the judge to make his ruling about whether the IRP regime violates the Constitution or the Charter.

There were two main arguments advanced in challenging the IRPs. Firstly, it was argued that the IRP laws are not within the legislative competence of the British Columbia government. For those who do not know, the Canadian and Provincial governments are only able to enact legislation in certain areas. These are listed in sections 91 and 92 of the Constitution Act, 1867 to 1982. Because Impaired Driving and Driving over .08mg% is a criminal offence, and the Federal government has the exclusive authority to enact criminal law, it was argued that the new BC IRP laws could not be enacted by the Province. Only the Federal government could have made these laws.

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Court of appeal upholds 8.5 year sentence

A Nova Scotia man has had an 8 and a half year prison sentence for impaired driving upheld by the Province’s Court of Appeal. He was convicted in February of impaired driving, leaving the scene of an accident, and driving while prohibited. He is also subject to a lifetime driving ban.

The Criminal Code sets out escalating penalties for repeat impaired driving offenders. The mandatory minimum sentence for impaired driving on a first conviction is a $1000 fine. A second conviction will result in a mandatory minimum of 30 days imprisonment. A third or subsequent conviction carries a mandatory minimum of 4 months in prison. The man in this instance has twenty-two previous convictions.

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Marijuana use and driving

A British Columbia study was recently conducted to determine the percentage of drivers who use marijuana before operating a motor vehicle. Drivers in Vancouver, Saanich, Abbotsford, Prince George and Kelowna were tested orally between the hours of 9pm and 3am. Of the nearly 3000 drivers who participated in the study, more than 200 tested positive for the presence of drugs in their system.

I don’t think people usually associate impaired driving with drug use. What more readily comes to mind is the use of alcohol and its effects on the ability to drive. But the Criminal Code provides that impairment can be either by alcohol or by a drug. With the potential for over 7% of drivers in British Columbia to be impaired by drug use, this raises some serious concerns.

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Impaired driving in BC – When police decide to charge

I’m sure that many British Columbians have now heard about the traffic accident that took place in Kelowna, BC, resulting in injury to four individuals.

The driver of the vehicle has been arrested and charged with impaired driving causing bodily harm, dangerous operation of a motor vehicle causing harm, driving while over .08, driving while suspended and breach of undertaking. It is said that he was already prohibited from driving and from consuming alcohol by a court order at the time the accident took place. He is now facing some very serious allegations.

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B.C. suspended drivers hit with backlog delays

Many B.C. drivers who have had their licences suspended for impaired driving are being penalized beyond the intention of the law due to a bureaucratic backlog, CBC News has learned.

More than 5,000 B.C. drivers have been caught with blood alcohol levels above 0.08 since September, when the province implemented tougher new impaired driving laws.

The new law stipulates that drivers — in addition to a 90-day suspension and other penalties — must install and pay for an ignition interlock device on their vehicles for one year.

The device includes a built-in breathalyzer that the driver must use before the vehicle will start.

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John Galliano suspended from Dior

Arrests for impaired driving are not the only consequences that can flow from alcohol. For John Galliano, whose blood alcohol level was reported to be 101mg in 100mL of blood at the time of his arrest, I’m sure he’s well aware of this fact.

He was recently arrested at a cafe in Le Marais after it was alleged that he got in an argument that culminated in his making a racial slur and attacking to fellow diners. First Mel Gibson, then Michael Richards, and now John Galliano. Dior, the fashion label for which Mr. Galliano designs, has suspended him pending the investigation.

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We were very pleased to receive some kind letters from two of our recent clients after we successfully challenged their 90-day Immediate Roadside Prohibition from driving. I’d like to share their words with you:

Hi Paul,
“I want to thank you most sincerely for your incredible service.
Receiving an IRP was one of the low points of my adult life. Speaking to other attorneys in town was a demoralizing experience, and I didn’t have any faith that the substantial investment in their services would have much of a chance of yielding a positive outcome.
From the moment that I made contact with you, it was clear that I was dealing with a keen professional. You were the only person I spoke with that articulated a sensible plan of action, while being straightforward about your rates over the phone. What’s more, your prices were by far and away, the most reasonable of anyone I spoke with.
Your professionalism continued throughout the process, keeping me informed at every step along the way. The fact that you were able to secure a positive outcome for me indicates that I did indeed make the very best choice in you as an Attorney.
Your saving my driving record has restored my career and so much more than I can articulate in a brief note.
I owe you a deep debt of gratitude. ” J.M.
February 22, 2011

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How far can a judge go in answering questions from a jury?

A recent Supreme Court of Canada decision, in the case of R. v. Miljevic, considers the question of whether or not a judge is required to provide specific examples of a crime, when the jury asks for them. This case is particularly interesting because the court was split. The majority judgment was written by Justice Cromwell, with Justices Abella, Charron and Rothstein concurring, while Fish wrote dissenting reasons in which Chief Justice McLachlin and Justice Deschamps concurred. A 3-4 split among judges can evolve and be applied in such a manner as to make the minority decision the majority, over time.

The facts of the case involve a man who is accused of second-degree murder, after he threw a heavy object into a crowd, causing someone’s death. At trial, he admitted he unlawfully killed someone, but contended that he was guilty of manslaughter, rather than second-degree murder. He was convicted, which conviction was upheld on appeal, and the case came to the Supreme Court of Canada.

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Roadside breath tests and smoking

Breath tests and smoking

What about breath tests and smoking? When you are stopped at the roadside for an impaired driving investigation, the police will often ask you to blow into a roadside breath testing device. These are known in law as Approved Screening Devices (ASDs). But what happens if you just finished a cigarette and you are asked to blow?

The ASD is fallible. It cannot distinguish between mouth alcohol and alcohol in the body. It is the responsibility of the police to ensure that they are using the ASD properly and are not using it in circumstances where the results could be contaminated by the presence of mouth alcohol.

I have been asked by many clients about the impact that smoking can have on the reliability of the ASD result. Should we be concerned about breath tests and smoking?

The RCMP are told to delay using the ASD for a few minutes if they know a person has been smoking recently. It is said that blowing smoke into the device can damage the ASD and it will give inaccurate readings.

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