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Driving While Prohibited

The Charge

British Columbia drivers can become prohibited drivers if, as part of a sentence to a Criminal Code or Motor Vehicle Act offence, a judge imposes a period of prohibition. Likewise, a driver can become prohibited if they blow a “warn” or a “fail” as the result of an Immediate Roadside Prohibition investigation. Furthermore, a driver can be prohibited by the Superintendent of Motor Vehicles when they accumulate a bad driving record, including offences that carry demerit points, and they are served with a Notice of Intent to Prohibit.

Driving while prohibited is a serious matter under both the Criminal Code and the Motor Vehicle Act. Under either statute, a first time offender faces a mandatory 12-month driving prohibition and a substantial fine of $500 – $2,000. When prosecuted by indictment, the maximum sentence may be 10 years jail. If prosecuted summarily, the maximum sentence may be two years less a day. In order to obtain a guilty verdict for driving while prohibited, the Crown must prove (a) that the driver was, in fact, prohibited by the courts or the Superintendent of Motor Vehicles and that (b) the driver had knowledge that they were prohibited.

The Investigation

The Automated Licence Plate Recognition (ALRP) System is a licence plate recognition system employed by BC police agencies that allows vehicles observed by police cameras to have their licence plate read and recorded. The goal is to reduce motor vehicle violations, in particular those related to unlicensed, uninsured and prohibited drivers. Police will use this technology, or at times, will simply detain and check a driver to see if they are properly licensed. Upon pulling over a vehicle which police suspect is being driven by a prohibited driver, the officer will attempt to illicit an incriminating admission by the driver in which they acknowledge that they are prohibited. It is useful to know that a driver, though obligated to produce a valid driver’s licence and to identify themselves to police, has no obligation to engage in a conversation regarding any knowledge of a driving prohibition.

Recent Successes

R. v. L.M. – Vancouver Provincial Court

Charge: Mischief Over $5000.
Issue: Whether Crown could prove the value of damage alleged to have been caused by our client.
Result: Mr. Mines was able to persuade Crown counsel that because it could not accurately prove the value of damage, and that our client had taken appropriate steps of self-rehabilitation,  Crown elected to not approve any charges. No criminal record.

R. v. H.K. – Port Coquitlam Provincial Court

Charge: Assault.
Issue: Whether it was in the public interest to proceed with a criminal prosecution in this "road rage" case.
Result: Mr. Mines was able to provide information to Crown counsel about our client's personal circumstances and the circumstances of the incident which resulted in Crown staying the charge after our client completed Alternative Measures. No criminal record.

R. v. J.S. – North Vancouver Provincial Court

Charges: Uttering Threats (x3).
Issue: Whether or not our client was entitled to be sentenced to a conditional discharge rather than being convicted of this offence.
Result: Upon hearing Mr. Gauthier's submissions on our client's behalf, the Court granted our client a conditional discharge rather than entering a conviction. No criminal record.

R. v. S.G. – Surrey Provincial Court

Charges: Assault; Mischief. Issue: Given the rehabilitative steps that we guided our client through and advocating on her behalf that there was a reasonable self defence issue, whether there was a substantial likelihood of securing a conviction.
Result: Mr. Gauthier was able to persuade Crown counsel that there was no substantial likelihood of a conviction. Ultimately Crown entered a stay of proceedings. No criminal conviction. No criminal record.

R. v. K.B.K. – Vancouver Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. C.B.S. – Richmond Provincial Court

Charges: B&E; Assault; Distribute Intimate Images.
Issue: Whether the Crown could comply with a defence disclosure request and possibly face a Charter application to have charges stayed due to unreasonable delay.
Result: On the eve of the trial, Mr. Mines was able to persuade Crown to allow our client to plead guilty to the least serious charge, assault by slapping. Crown nonetheless sought a conviction and probation, but after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. v. V.L. – Vancouver Provincial Youth Court

Charge: Assault.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's positive psychological counselling report, Mr. Gauthier was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. v. C.J.X. – Richmond Provincial Court

Charges:  Assault with a Weapon.
Issue: Given the rehabilitative steps we were able to guide our client through, whether there was a public interest in proceeding with criminal charges.
Result: After providing Crown counsel with our client's  positive psychological counselling report, Mr. Gauthier  was able to persuade Crown counsel to enter a stay of proceedings. No criminal record.

R. v. B.E. – Surrey Provincial Court

Charges: Assault (domestic) x2.
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to provide information to Crown counsel on our client's behalf and ultimately persuaded Crown to enter a stay of proceedings. No criminal record.

R. v. A.S. – Vancouver Provincial Court

Charges: B & E, Fraud over $5000, Motor vehicle theft; Identity theft, Driving while prohibited (x2).
Issue: Given our client’s personal circumstances and rehabilitative efforts, what would be the appropriate sentence.
Result:  Mr. Johnston was able to persuade Crown to make a joint submission for time-served, followed by a period of probation. The Crown directed stays of proceedings on several charges.  After hearing Mr. Johnston's submissions on our client's behalf, the sentencing judge noted that he would have ordinarily imposed a lengthy jail sentence for an accused in our client's position, but he accepted the joint submission. No further jail.

R. v. M.A.K. – Vancouver Provincial Court

Charge: Possession of fentanyl and carfentanil for the purposes of trafficking.

Issue: Given the information Mr. Johnston provided to Crown counsel regarding our client’s personal circumstances and the circumstances of the alleged offence, whether it was appropriate to proceed with a criminal prosecution.

Result: Mr. Johnston was able to persuade the Crown that there were issues with respect to the Crown's evidence such that it was unlikely our client would be convicted at trial, and that there was insufficient public interest in continuing to prosecute our client in any case. Given this informaton, the Crown directed a stay of proceedings on the charge. No criminal record.

R. v. S.B. – Vancouver Provincial Court

Charge: Carrying a Concealed Weapon.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel regarding the circumstances of the incident and our client's background, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Johnston persuaded Crown counsel that there was insufficient public interest, leading Crown to enter a stay of proceedings. No criminal record.
View All

The Defence

While it is not possible to go “behind” the driving prohibition by arguing that the court, or the Superintendent of Motor Vehicles should not have prohibited the driver to start with, a defence to prohibited driving is that the driver had no knowledge of the prohibition having been imposed. Significantly, the Crown has the burden of proving that the accused knew they were the subject of a driving prohibition. This can be problematic for the Crown when, for example, they are trying to prove knowledge by the fact the Superintendent mailed a Notice of Intent to Prohibit to the accused. As experienced defence lawyers, we can present arguments that challenge the presumption that the accused was ever aware of the prohibition. For example, just because a letter was mailed, it does not follow that the letter was actually received or read by the accused. Likewise, it may be difficult for an officer who issued a 90-day Immediate Roadside Prohibition to prove that he actually served notice of the prohibition on the accused. In rare cases, it is possible to advocate the defence of “necessity” in prohibited driving cases. Where, for example, a prohibited driver chooses to drive in order to save a life, the court ought to find the driver not guilty.

Driving while prohibited charges are an area in which we have had great success in being able to negotiate satisfactory resolutions for our clients. By presenting Crown counsel with a full background of our client’s circumstances, and reasons for driving, we have been able to persuade Crown to proceed on the lesser, related offence of driving without holding a valid driver’s licence, under s. 24 of the Motor Vehicle Act. The advantage of this offence is that it does not require any mandatory driving prohibition whatsoever.

Start with a free consultation.

If you are being investigated by police or if you’ve been charged with a criminal or driving offence, don’t face the problem alone. Being accused of an offence is stressful. The prospects of a criminal record or jail sentence can be daunting. Even if you think there is no defence, we may be able to help. To schedule a free initial consultation with one of our Vancouver lawyers, contact us now.

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