by Jason Tarnow | Jun 30, 2026 | Crime, Media, Police, Wheels Of Justice
As a Vancouver criminal defence lawyer with years of experience advocating for clients in British Columbia courts, I’ve seen firsthand how shifts in the Criminal Code can dramatically alter the landscape for those facing charges. Just days ago, on June 15, 2026, the Bail and Sentencing Reform Act (Bill C-14) received Royal Assent. This sweeping legislation introduces over 80 targeted changes to bail, sentencing, the Youth Criminal Justice Act, and related provisions. Set to come into force on July 15, 2026, these reforms mark one of the most significant updates to Canadian criminal law in recent memory.
For anyone in Vancouver dealing with criminal allegations—whether involving violence, organized crime, auto theft, or repeat offending—this isn’t just abstract policy. It’s a game-changer that demands immediate attention from defendants, their families, and legal practitioners. In this post, I break down the key elements of Bill C-14, analyze its implications for Charter rights and defence strategy, and offer practical takeaways for those navigating the justice system in BC.
The Backdrop: Why These Reforms Now?
Canada’s bail system has long balanced the presumption of innocence with public safety concerns. Landmark Supreme Court of Canada decisions, such as those emphasizing the “ladder principle” (starting with the least restrictive conditions) and the principle of restraint, have guided courts toward release at the earliest reasonable opportunity.
However, rising concerns over repeat violent offenders, extortion rackets (particularly acute in parts of the Lower Mainland), auto theft rings, and crimes targeting critical infrastructure prompted this response. Bill C-14 responds by tightening bail for specific serious offences and toughening sentencing across the board. British Columbia has been vocal in advocating for many of these changes, especially around reverse onus provisions for intimate partner violence and repeat offending.
The legislation doesn’t overhaul the entire system but delivers precise, impactful amendments aimed at violent and organized crime, home invasions, human trafficking, and more.
Key Changes to Bail Laws Under Bill C-14
The most immediate impact for defence counsel in Vancouver will be on bail hearings. Here are the standout reforms:
- Expanded Reverse Onus Provisions: For a growing list of offences—including those involving violence, choking/suffocation/strangulation, breaking and entering, auto theft, and organized crime—the burden shifts to the accused to show why detention is not justified. This reverses the traditional onus on the Crown.
- Stricter Considerations for Detention: Courts must now weigh additional factors when assessing whether detention is necessary to maintain confidence in the administration of justice. Weapons prohibitions at the bail stage are expanded, particularly for extortion and organized crime cases.
- Modifications to Core Principles: The legislation clarifies and, in some cases, limits the application of the ladder principle and principle of restraint for certain charges. Release is no longer as presumptively favored in high-risk categories.
- Post-Guilty Verdict Bail: After a finding of guilt but before sentencing, prosecutors can seek to vacate release orders with a reverse onus on the accused.
In Vancouver and Surrey, where organized crime and extortion-related violence have been pressing issues, these changes will likely result in more contested bail hearings and higher detention rates for qualifying offences.
Sentencing Reforms: Tougher Penalties and Reduced Discretion
On the sentencing side, Bill C-14 introduces or enhances aggravating factors, restricts conditional sentences (house arrest) for serious sexual offences (including against children), and emphasizes consecutive sentencing in certain scenarios. It also targets retail theft, crimes against first responders, and infrastructure offences.
These provisions aim to deliver “meaningful consequences,” but they raise important questions about judicial discretion and proportionality—core tenets of Canadian sentencing law rooted in cases like R. v. Gladue for Indigenous offenders and broader Charter considerations under section 12 (cruel and unusual punishment).
Critics, including civil liberties groups, have warned that expanded reverse onuses and restrictions could disproportionately affect marginalized communities, including Indigenous, racialized, and low-income individuals in BC. Defence lawyers must remain vigilant about potential Charter challenges.
Implications for Vancouver Criminal Defence Practitioners and Defendants
As someone practicing in Vancouver’s bustling courthouses, I anticipate several practical shifts:
- Bail Hearings Will Be More Rigorous: Expect Crown counsel to push harder for detention. Defence teams will need robust release plans, emphasizing sureties, electronic monitoring, treatment programs, and community ties. Gathering strong evidence of low risk—employment records, counseling engagement, or family support—becomes even more critical.
- Strategic Adjustments Pre-Charge and Early: Early intervention is key. In cases touching organized crime or repeat offences, advising clients on self-surrender, proactive rehabilitation, or negotiating with police/Crown at the investigative stage may mitigate risks.
- Sentencing Advocacy: With restrictions on conditional sentences and emphasis on denunciation, lawyers must craft compelling submissions highlighting mitigating factors, rehabilitation potential, and Gladue principles where applicable. Charter arguments around mandatory minimums or overbreadth could gain renewed importance.
- Youth and Specialized Cases: Amendments to the Youth Criminal Justice Act warrant close scrutiny for young clients.
For defendants in BC facing charges like assault, theft, or drug-related matters linked to organized activity, the window for securing release narrows. This heightens the stakes for thorough preparation.
Balancing Public Safety and Fairness: A Defence Perspective
These reforms reflect a policy push toward accountability and community safety—goals few would dispute in the face of real harms from repeat offending. However, as criminal defence lawyers, our role is to ensure the pendulum doesn’t swing so far that it erodes fundamental rights.
The presumption of innocence remains bedrock. Many provisions in Bill C-14 will face judicial scrutiny, potentially leading to future Supreme Court guidance. In the interim, vigilant advocacy is essential to protect clients from unjust pretrial detention, which can devastate employment, housing, and family stability.
In Vancouver’s diverse context, with its unique challenges around addiction, mental health, and urban crime, a one-size-fits-all tougher approach risks unintended consequences. Effective justice requires both strong laws and individualized assessment.
Practical Takeaways for Those Facing Charges
- Act Quickly: If you or a loved one is under investigation or arrested after July 15, 2026, consult experienced Vancouver criminal defence counsel immediately. Bail strategies must adapt to the new framework.
- Build a Strong Record: Engage in counseling, maintain employment, and document positive steps. These are powerful tools in bail and sentencing hearings.
- Understand Your Rights: Reverse onus doesn’t eliminate the right to a fair hearing. Skilled cross-examination and evidence can still secure release.
- Stay Informed: Legislative changes like Bill C-14 evolve through case law. Follow developments from the BC Supreme Court, Provincial Court, and SCC.
The coming months will reveal how judges interpret these amendments. Defence bar collaboration and targeted litigation will help shape equitable application.
In conclusion, Bill C-14’s bail and sentencing reforms signal a tougher stance on serious crime while challenging practitioners to innovate in defence strategies. For Vancouver defendants, the message is clear: preparation and expert representation have never been more vital.
At our firm, we remain committed to fighting for fair outcomes amid these changes. If you’re facing criminal allegations in BC, reach out for a consultation. Knowledge and strategic advocacy remain your strongest allies.
This blog post is for educational purposes only and does not constitute legal advice. Every case is unique—consult a qualified Vancouver criminal defence lawyer for advice tailored to your situation.
by Jason Tarnow | Jun 23, 2026 | Crime, Criminal Attorney, Legal Rights, Media, Uncategorized
As a Vancouver criminal defence lawyer with years of experience navigating the complexities of the Criminal Code and Charter rights in British Columbia courts, I’ve seen firsthand how shifts in bail and sentencing can profoundly affect accused persons, their families, and the justice system itself. Just days ago, on June 15-16, 2026, the Bail and Sentencing Reform Act (Bill C-14) received Royal Assent, ushering in over 80 targeted amendments to the Criminal Code, the Youth Criminal Justice Act, and related statutes. These changes, set to come into force on July 15, 2026, represent one of the most significant overhauls to bail and sentencing in recent memory.
For those facing criminal charges in Vancouver, Surrey, or across B.C., understanding these reforms isn’t optional—it’s essential. In this post, I break down the key developments, their legal context, practical implications for defendants and practitioners, and what they mean for the future of Canadian criminal law.
The Hook: Public Safety vs. Presumption of Innocence
Canadians have grown increasingly concerned about repeat violent offending, auto theft rings, home invasions, and organized crime. Bill C-14 responds directly to these pressures, backed by input from law enforcement, provinces (including B.C.), and victims’ advocates. Proponents argue it will keep dangerous individuals off the streets while restoring public confidence in the justice system.
Critics, including defence counsel and civil liberties groups, caution that expanded reverse onus provisions, restrictions on sureties, and mandatory consecutive sentences risk tilting the scales too far, potentially leading to unnecessary pre-trial detention and longer sentences that may not always serve rehabilitation or proportionality goals. As defence lawyers, our role remains to zealously advocate within this new framework—protecting Charter rights under sections 11(d) (presumption of innocence), 11(e) (reasonable bail), and 7 (liberty and security of the person).
Key Changes to Bail Laws: Harder Release for Certain Accused
The reforms introduce stricter bail procedures, particularly targeting repeat and violent offenders. Here are the highlights:
• Expanded Reverse Onus Provisions: New reverse onus rules apply to offences like home break-and-enter, human trafficking, human smuggling, assaults or sexual assaults involving choking/suffocation/strangulation, and violent extortion. For those with multiple prior violent convictions, the burden shifts to the accused to justify release. Existing reverse onuses (e.g., for certain weapon offences) have been expanded from 5 to 10 years.
• Refinements to Core Principles: The “principle of restraint” (favouring release at the earliest opportunity) is clarified—not a blanket mandate for release if detention is justified for public safety. The “ladder principle” (least onerous conditions first) no longer applies in reverse onus cases. Courts must now explicitly consider random or unprovoked violence, the number/seriousness of outstanding charges, and stronger weapons prohibitions.
• Surety and Conditions Restrictions: Individuals convicted of serious offences in the past 10 years are generally barred from acting as sureties. Courts must scrutinize bail plans more rigorously in reverse onus scenarios and consider specific conditions (e.g., curfews, geographic limits, no-contact orders) for offences like auto theft or home invasion.
These changes build on Supreme Court of Canada precedents like R. v. Antic (2017) on the ladder principle and R. v. St-Cloud (2015) on the tertiary ground for detention, but they codify a more cautious approach. In B.C. courts, where backlogs and resource pressures are real, expect more contested bail hearings and potentially higher detention rates for qualifying offences.
Tougher Sentencing: Consecutive Terms and Aggravating Factors
On the sentencing side, Bill C-14 aims to ensure “serious crimes meet serious consequences”:
• Consecutive Sentences: Mandatory for certain combinations like extortion and arson, or violent auto theft and break-and-enter. Judges must consider consecutive sentences for repeat violent offenders.
• New Aggravating Factors: Enhanced weight for crimes against first responders or public transit workers, organized retail theft, mischief/theft damaging essential infrastructure (e.g., copper theft), and repeat violent offending.
• Other Reforms: Ends conditional sentences (house arrest) for certain serious sexual offences; restores driving prohibitions for manslaughter and criminal negligence causing death/bodily harm; strengthens fine enforcement.
These align with sentencing objectives in s. 718 of the Criminal Code—denunciation, deterrence, and separation—while giving primary consideration to denunciation and deterrence for repeat auto theft or break-and-enter. They echo trends in cases addressing the “revolving door” of justice, but defence counsel will continue to emphasize mitigating factors like Gladue principles for Indigenous accused, mental health, and rehabilitation potential.
Implications for Practitioners and Defendants in Vancouver Criminal Law
For accused persons in British Columbia, the practical fallout is significant. In Vancouver’s busy courthouses, we may see:
• Fewer Releases on Serious Charges: Reverse onus cases will demand meticulously prepared bail plans, often with enhanced sureties, electronic monitoring, or treatment programs. Early intervention—gathering character references, proposing robust plans, or challenging weak Crown evidence—becomes even more critical.
• Sentencing Strategy Shifts: Expect prosecutors to push for consecutive sentences and aggravating factors aggressively. Defence will need to advocate vigorously for concurrent sentencing where possible, highlight proportionality under s. 718.1, and explore alternatives like restorative justice or mental health diversions where available.
• Charter Challenges Ahead: Many provisions engage s. 11(e) rights. We anticipate litigation testing whether expanded reverse onuses or modified restraint principles unjustifiably limit liberty. Precedents like R. v. Morales (1992) and R. v. Hall (2002) on reverse onus will be central.
• Youth and Systemic Impacts: Amendments to the Youth Criminal Justice Act and data collection requirements aim for better tracking, but defence must guard against over-criminalization of young persons.
Locally in B.C., the provincial government has welcomed the changes, signaling preparedness for implementation. However, court resources, bail supervision, and legal aid capacity will be tested. As a Vancouver-based lawyer, I stress that these reforms do not eliminate the presumption of innocence or the right to a fair trial—they recalibrate the balance.
Defendants should contact experienced counsel immediately upon charge. Early strategy can make the difference between pre-trial detention and release, or between a crushing sentence and one tailored to circumstances.
Practical Takeaways for Those Facing Charges
1. Act Quickly: Bail hearings move fast. Gather evidence for your release plan early—employment, housing, supports, and proposed conditions.
2. Understand Your Onus: If reverse onus applies, the burden is on you. Strong legal representation is non-negotiable.
3. Sentencing Preparation: Focus on mitigation from day one. Character letters, expert reports (e.g., psychological), and guilty plea timing matter more than ever.
4. Stay Informed: Watch for implementation details post-July 15, 2026. Provincial variations in B.C. courts will emerge.
5. Broader Justice Issues: While tougher laws address public concerns, long-term safety requires investment in prevention, mental health, addiction services, and addressing root causes—areas where defence perspectives remain vital.
Conclusion: Navigating the New Landscape with Vigilance
The Bail and Sentencing Reform Act marks a pivotal moment in Canadian criminal law, driven by demands for accountability amid rising concerns over repeat offending. For Vancouver criminal defence lawyers, it reinforces the need for adaptive, rights-focused advocacy—challenging evidence, crafting compelling release plans, and fighting for proportionate outcomes at sentencing.
While these reforms may deter some crime and protect communities, they also heighten the stakes for every accused person. The justice system must remain fair, not just tough. At our firm, we remain committed to defending the rights of those charged, ensuring that Bill C-14’s changes are applied justly and constitutionally.
If you or a loved one is facing criminal charges in Vancouver or B.C., reach out promptly for a consultation. Knowledge of these developments can be the first step toward the best possible defence.
This blog post is for educational purposes only and does not constitute legal advice. Every case is unique—consult a qualified criminal defence lawyer for advice tailored to your situation.
by Jason Tarnow | Jun 1, 2026 | Media, Wheels Of Justice
As a Vancouver criminal defence lawyer with years of experience navigating the British Columbia courts, I’ve seen firsthand how trial delays can make or break a case. Last Friday, May 29, 2026, the Supreme Court of Canada released a significant decision in R. v. Jacques-Taylor, 2026 SCC 20, that refines the application of the Jordan framework to joint trials and particularly complex prosecutions. This ruling comes at a critical time for Canadian criminal law, especially in busy jurisdictions like Vancouver and the Lower Mainland, where multi-accused firearms, drug, and organized crime cases are common.
The Jordan Framework: A Quick Refresher
In 2016, the Supreme Court’s landmark decision in R. v. Jordan, 2016 SCC 27, established presumptive ceilings for trial delays under section 11(b) of the Canadian Charter of Rights and Freedoms: 18 months in provincial court and 30 months in superior court from the date charges are laid to the end of trial. Exceeding these ceilings presumptively violates the right to be tried within a reasonable time, often resulting in a stay of proceedings.
The framework categorizes delay into three types: defence delay, Crown delay, and discrete exceptional circumstances (like unforeseen events the Crown couldn’t reasonably avoid). Over the past decade, Jordan has led to thousands of cases being stayed, prompting ongoing debate about its impact on public safety, victim rights, and the administration of justice—particularly in complex cases involving multiple accused, voluminous disclosure, or expert evidence.
What Happened in R. v. Jacques-Taylor?
Elijah Jacques-Taylor and a co-accused faced firearms and drug-related charges. When scheduling the joint trial, counsel availability created a roughly two-month scheduling conflict. The trial ultimately exceeded the Jordan ceiling, leading to a stay at the trial level that was upheld on appeal. The Supreme Court allowed the Crown’s appeal, set aside the stay, and remitted the matter for trial.
Writing for the majority (Justice Suzanne Côté, with Chief Justice Wagner and others concurring), the Court held that delays caused by scheduling conflicts in a joint trial can constitute a discrete exceptional circumstance. Joint trials promote efficiency, consistency in verdicts, and fairness by avoiding inconsistent outcomes or one accused testifying against another in separate proceedings. The Court emphasized that the Jordan framework already provides sufficient flexibility for increasingly complex modern prosecutions without needing a wholesale overhaul.
In a companion analysis, the Court addressed “particularly complex” cases—those with massive disclosure, numerous witnesses, or novel legal issues—reaffirming that the framework can accommodate them where justified.
Implications for Practitioners in British Columbia
This decision is highly relevant for Vancouver criminal defence lawyers and those practicing across BC. The Lower Mainland sees frequent joint prosecutions in cases involving alleged gang activity, drug trafficking, and firearms offences under the Criminal Code. Defence counsel must now carefully strategize around joint trial scheduling.
Key Takeaways for the Defence Bar:
- Scheduling Matters: Defence lawyers should document efforts to secure earlier dates and consider severance applications under section 591(1) of the Criminal Code where a co-accused’s unavailability prejudices their client’s Jordan rights. However, courts will presume joint trials are in the interests of justice.
- Complexity Arguments: In multi-count indictments or cases with extensive wiretap evidence, proactively build a record showing why additional time is necessary. This ruling reinforces that legitimate complexity can justify exceeding ceilings without automatically triggering a stay.
- Charter Strategy: While the decision tilts toward flexibility for the Crown in joint matters, it does not dilute the core Jordan protections. Accused persons still benefit from the presumptive ceilings. In Vancouver Supreme Court or Provincial Court, we must remain vigilant in bringing Jordan applications with strong evidence of prejudice.
For clients, this means greater predictability in some cases but potentially longer waits in complex or multi-party matters. As defence counsel, our role is to mitigate unnecessary delay while protecting Charter rights.
Broader Context: Bail Reform, Sentencing Trends, and BC Practice
R. v. Jacques-Taylor arrives amid other recent shifts in Canadian criminal law. Parliament continues to debate Bill C-14 (bail and sentencing reforms) and Bill C-16 (victim protections and intimate partner violence measures), which could further impact how cases proceed through the system. In BC, we’re also seeing the new Criminal Rule 7 effective today, June 1, 2026, governing applications for reduction in parole ineligibility periods—another procedural update practitioners must master.
These developments reflect a balancing act: protecting speedy trial rights while ensuring serious cases—especially those involving violence or organized crime—receive full hearings. In Vancouver, where court backlogs persist despite post-pandemic recovery, this SCC guidance provides welcome clarity without undermining Jordan’s intent.
Practical Advice for Accused Persons and Lawyers
If you or a loved one faces criminal charges in Vancouver or elsewhere in BC:
- Act Early: Engage experienced counsel immediately to assess Jordan risks and push for efficient resolution or severance where appropriate.
- Document Everything: Maintain detailed records of communications with Crown and court staff regarding scheduling.
- Consider All Options: From plea negotiations to Charter challenges, a strategic defence can leverage the flexibility confirmed in Jacques-Taylor while holding the system accountable.
- Stay Informed: Follow developments in Supreme Court jurisprudence and local rules, as procedural nuances often determine outcomes.
For law students and junior lawyers, this case illustrates how the SCC evolves its own precedents to meet real-world demands without sacrificing constitutional principles.
Conclusion: Strengthening Justice Through Balanced Reform
The Supreme Court’s decision in R. v. Jacques-Taylor reinforces that the Jordan framework remains robust and adaptable. It acknowledges the practical realities of joint trials and complex litigation while upholding the fundamental right to timely justice. For Vancouver criminal defence lawyers, it serves as both a caution and an opportunity—to advocate zealously for clients in an evolving landscape.
As someone dedicated to defending the rights of the accused in British Columbia courts, I view this ruling as a positive step toward a more nuanced administration of justice. It reminds us that while efficiency matters, fairness and Charter protections must remain paramount.
This blog post is for educational purposes only and does not constitute legal advice. Every case is unique. If you face criminal charges or have questions about your rights under Canadian criminal law, contact a qualified Vancouver criminal defence lawyer for personalized guidance.
by Jason Tarnow | Jan 19, 2024 | Crime, Legal Rights, Media, Police, Wheels Of Justice
How would you feel if your DNA was used to convict a family member?
Last week, news consumers were divided on the use of this tactic to identify and arrest Ibrahim Ali who was recently convicted of the murder and sexual assault of a 13 year old victim in 2017 in Burnaby.
Investigators went undercover at a 2018 Kurdish New Year Celebration handing out samples of tea in hopes of collecting DNA from their suspect – and it worked. Police were able to obtain a sample from a relative of the suspect. The sample was analyzed and compared against the DNA sample collected from semen found inside the victim, and the results were conclusive: the sample collected at the Kurdish New Year Celebration belonged to the brother of the whomever’s DNA was found inside the victim. This critical development resulted in the positive identification of Ibrahim Ali, his subsequent arrest and ultimately, his conviction.
However, certain civil liberties advocates have decried this investigative strategy, claiming it infringes on the privacy rights of people who have their DNA seized when they themselves are not suspected of any wrongdoing. Further, genealogical DNA testing is not frequently accessed or available technology in Canada. As a result, the analysis is often done in the United States, further stoking concerns from privacy experts. Police are required to maintain a “chain of custody” for all exhibits in a case. When the exhibits are forensic material, it is especially important that the chain of custody be meticulously maintained. This becomes increasingly difficult when exhibits leave the custody of Canadian agencies. Further, labs in the United States (and beyond) may not be accredited to the same standard as a Canadian lab. And of course, when private and sensitive material exists in the database of outside agencies, there is always a security risk.
Genealogical DNA testing and its use in criminal law is still very much in its infancy – in Canada, anyways.
This investigational technique gained notoriety in 2018 when it was used to identify and convict the Golden State killer in California, and made headlines again in December 2022 when it was used to identify Bryan Kohberger, currently awaiting trial for the murder of four college students at the University of Idaho.
Canadian Courts and legislators are no doubt paying close attention to developments in the field of Genealogical DNA testing. It is more important now than ever – in the age of ever-advancing scientific exploration and sophisticated tools like AI – that the Courts, and the law, can maintain pace.
by Jason Tarnow | Jun 29, 2022 | Crime, Media, Politics
In May of 2022, the Supreme Court of Canada determined that stacking parole ineligibility for multiple murders is unconstitutional under Canadian law.
In 2011, Stephen Harper’s government passed legislation relating to sentencing provisions in the Criminal Code that would allow Judges to impose parole ineligibility far beyond the minimum of 25 years on the offence of First Degree Murder, pursuant to Section 745.51.
Since that time, several sentences have been passed in imposing parole ineligibility, with the most lengthy sentence being no parole eligibility for 75 years in the case of Douglas Garland, who was found guilty of murdering two adults and their grandson. Garland appealed his sentence to the Alberta Court of Appeal, where it was upheld.
It was the case of the Quebec mosque shooter, Alexandre Bissonnette, that resulted in a unanimous decision from all nine Supreme Court Justices to rule that the sentencing provision violated Section 12 of the Canadian Charter of Rights and Freedoms, granting protection against cruel and unusual punishment. Bissonnette pleaded guilty to 6 counts of First Degree murder and six counts of attempted murder, and the Crown had asked for a parole ineligibility period of 150 years – 25 consecutive years for each of the six people he murdered – which would have been the harshest sentence handed down in Canada since the abolishment of capital punishment. The presiding Judge declined, and instead sentence Bissonnette to 40 years before he could apply for Parole. Criminal defence counsel appealed to the Quebec Court of Appeal in 2020, and the sentence was reduced to 25 years. The Crown then appealed to the Supreme Court of Canada, which led to the landmark decision to cap parole ineligibility at 25 years.
With this decision, those incarcerated under the stacked ineligibility provision are seeking to have their sentences reduced, which has caused a great deal of alarm to the public. It is important to remember that someone convicted of first degree murder will have eligibility at Parole after 25 years – but that does not guarantee their release by any means. The Parole Board looks at many factors when determining whether or not to grant Parole, including the actual offence itself, criminal and social history, rehabilitation efforts, and remorse. Their review of an individuals history when considering release is thorough and rigid. Victim impact statements from family members and loved ones are also taken into consideration.
The decision from the SCC included the following passage:
“This appeal is not about the value of each human life, but rather about the limits of the state’s power to punish offenders.”
This is a reminder that the Court’s decision to limit parole ineligibility is not meant to diminish loss of life, or to favour offenders. It reaffirms that our government, including judicial institutions, must abide by limits to ensure that Canada remains a fair and just society for all.
If you have been charged with a criminal offence in British Columbia (including, but not limited to: Richmond, Vancouver, Surrey, Delta, Langley, Coquitlam, New Westminster, Abbotsford, Victoria, Nanaimo, Kamloops, Kelowna) or the Yukon Territory (including but not limited to: Whitehorse, Dawson City, Watson Lake, Haines Junction, Mayo, Old Crow) contact experienced counsel at Tarnow Criminal Law without delay.
by Jason Tarnow | Feb 24, 2022 | Crime, Media, Police
A Vancouver man suffering from long haul COVID-19 symptoms was successful in the judicial review of his 90-day Immediate Roadside Prohibition (“IRP”) after arguing that the Adjudicator breached his right to procedural fairness in his original review to RoadSafety BC.
On February 11, 2021, Peter Ronald Gibson was issued an IRP after the police officer alleged he refused to provide a sample. Mr. Gibson made 7 attempts into the Approved Screening Device, none of which successfully yielded a suitable sample. As a result, his vehicle was impounded for 30 days, and he was prohibited from driving for 90 days.
Mr. Gibson sought a review of his IRP to RoadSafety BC, delegate of the Superintendent of Motor Vehicles on the basis that he had a reasonable excuse for failing to provide a breath sample. In Mr. Gibson’s original review, he provided evidence in the form of his Affidavit. He also provided a letter from his physician that confirmed his diagnosis – he was suffering from long term symptoms as a result of COVID-19, including shortness of breath on exertion.
The letter reads:
“His physical examination shows evidence of post-viral reactive airways with sever forced expiratory wheeze. He has been given prescriptions for Flovent and Salbutamol inhalers today. This could contribute to his difficulty performing breathalyzer test during recent traffic stop”
The Adjudicator at RoadSafety BC rejected the letter from Mr. Gibson’s physician, stating that there was no evidence that the physician was aware of the “minimum flow rate (of breath)” required to provide a sample. Mr. Gibson also provided his own Affidavit, which confirmed that he had been referred for treatment, which included CT scans and chest x-rays, among other diagnostic tests.
Keep in mind that the role of the Adjudicator is to analyze whether Mr. Gibson had a reasonable excuse for failing to provide a sample. The analysis is done through review of the Report to Superintendent and all included materials, and also through review of all materials provided by the Applicant (in this case, Mr. Gibson). The Adjudicator may also rely on the Operator’s manual for the Alco-Sensor FST (the Approved Screening Device), which includes information such as proper operating temperature of the device, screen codes, and procedural standards.
Ultimately, the Adjudicator determined that Mr. Gibson’s version of events lacked credibility, and that his physician did not provide sufficient evidence that his medical condition would have prevented him from providing a suitable sample into the Alco-Sensor FST. In doing so, they advanced their interpretation of the testing requirements within the Operator’s manual – specifically, the wording used to describe the necessary airflow required to provide a sample:
“The Alco-Sensor FST has an automatic sampling system designed to ensure that a sample of deep lung air is obtained and analyzed. In order to trigger automatic sampling the subject must blow with a minimum flow rate, must produce a minimum breath volume, and blow for a minimum duration…”
On judicial review, Supreme Court Justice Tammen took issue with the Adjudicator’s interpretation of this issue. The Judge dissected the Adjudicator’s analysis and concluded that despite quoting the appropriate resource, the manual itself provided no information to estimate the “minimum” flow rate required.
Through the Adjudicator’s analysis, Justice Tammen determined that they had relied on information (relating to the required flow rate of a sample) that was not available to the Petitioner (or his physician) at the outset of his review with RoadSafety BC. This breached the Petitioner’s right to procedural fairness.
Justice Tammen directed that the Adjudicator’s decision confirming the IRP of the Petitioner be set aside, and that the matter be remitted to RoadSafety BC for a new hearing.
This case demonstrates a significant flaw in the IRP regime – that is, a blurring of the lines between adjudication and medical expertise. While adjudicators may have specialized knowledge of certain issues due to continued exposure via their employment, the boundaries in their role must be respected and enforced.
If you have received an Immediate Roadside Prohibition, an Administrative Driving Prohibition, or have been charged with Impaired Operation of a Conveyance, contact an experienced criminal lawyer at Tarnow Criminal Law as soon as possible. Our office is located in the heart of Richmond, only 20 minutes from downtown Vancouver on the Canada Line, and within 10 minutes of Vancouver International Airport (“YVR”).
Our firm is also licensed to work in the Yukon Territory, where the 90-day review process for impaired driving is an entirely different process. If you are facing impaired driving charges in the Yukon, contact our office as soon as possible for a consultation.
