Late last week we had a significant successful decision in BC Supreme Court for a client who was pulled over by Vancouver police for “slow driving,” before being given a 24-hour prohibition for alleged drug impaired driving.
In this case, the officer never found any drugs on our client or among his possessions. Instead, the Vancouver police relied on the smell of “fresh marihuana,” the presence of marijuana grinders, and a bottle of eye drops to make their case. It was not lost on the court that the officer had “no explanation” as to why our client was pulled over in the first place. This, and the lack of any drugs in the car along with the lack of evidence that the driver was driving impaired in any way, meant the case was thrown out when the officer’s allegations were tested in court.
Three ‘mere possibilities’ do not a ‘reasonable probability make.
Why was a Notice of Driving Prohibition issued?
The details are this: our client was driving – apparently too slowly for this officer’s liking – on Shaughnessy Street in Vancouver sometime in September 2016 when he was pulled over for a sobriety check. Though our client did not present any signs of impairment such as slurred speech or poor balance, he was handed a driving prohibition without any further testing nor further questioning on whether he was impaired. The officer also found unopened beers in the car, and alleged in an affidavit that our client was possibly impaired by both marijuana and alcohol.
Here’s what the judge had to say:
“The alleged reasonable and probable grounds in this case really boil down to a combination of slow driving, the odour of vegetative marihuana, and glassy, red eyes. Absent more objectively compelling circumstances, however, three ‘mere possibilities’ do not a ‘reasonable probability make.”
The judge goes further to point out that blood-shot eyes does not automatically mean impairment, and that the presence of eye drops were just that – millions of people use eye drops for relief, and the vast majority do not use illegal drugs. What’s more, the judge pointed out that smoked marijuana that’s been burnt has a “distinctive odour,” and at no point did the officer mention smelling any “freshly-smoked” marijuana in the vehicle or on our client.
What are the standards to prove drug impaired driving?
Generally speaking, the standard an officer is required to meet when coming to the conclusion to issue a 24-hour prohibition for drugs is not as well established in law compared to drinking driving cases. In some cases, an admission of smoking marijuana in the hours prior to driving may imply recent consumption, as would the smell of recently burnt marijuana.
In this case, there was no evidence the officer had taken any handwritten notes at the scene concerning our client. The officer’s evidence to the court was all prepared after the fact, and the absence of notes recorded while observations were being made can affect the reliability and credibility of the officer.
In the decision, made on May 18, 2017 in the BC Supreme Court, the judge correctly determined the 24-hour notice should be quashed, and the prohibition should be set aside. It’s an important case because it highlights the problems that arise because there is no legislated review procedure for 24-hour prohibitions for drugs. In order to challenge the prohibition, we need to take the matter straight to BC Supreme Court which is expensive and problematic particularly in light of the fact that the officer’s evidence is prepared after the fact for the sake of dealing with the challenge.
Kyla Lee argued the case in BC Supreme Court. It was written up in the Georgia Straight.
If you’ve received a 24-hour prohibition for drugs call us and we’ll see if there’s something we can do to get that prohibition off your driving record.