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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. A prison sentence of up to six months is a possibility for a first time offender; a mandatory minimum prison sentence of at least 14 days is required for a second offence and a mandatory minimum sentence of 30 days in jail is required for each subsequent offence. 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. vs. J.A. - Vancouver Provincial Court

Charges: Personation, Use of Forged Identity Documents, Resist Arrest.
Issue: Whether the search and seizure of the documents was an unlawful Charter breach.
Result: Mr. Mines was able to persuade Crown and the Court that, in all the circumstances, it was in the public interest to grant our client a conditional discharge without any reporting condition. 

R. vs. J.H. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm (domestic).
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to convince Crown counsel to enter a stay of proceedings just prior to the trial date. No criminal record.

R. vs. J.B. - ICBC Fraud Investigation

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. M.K. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Whether it was appropriate for our client to be granted a conditional discharge.
Result: Mr. Mines was able to persuade the trial judge to grant our client a conditional discharge rather than the conviction that Crown counsel was seeking. No criminal record.

R. v. M.P. - Vancouver Provincial Court

Charge: Theft Under$5000.
Issue: Whether there was a public interest in approving the charge.
Result: Mr. Johnson was able to persuade Crown counsel that there was no public interest in approving any charge whatsoever. No criminal record.

R. vs. O.A. - Surrey Provincial Court

Charge: Assault (domestic). Issue: Given the lack of clarity…

R. vs. A.U. - Vancouver Provincial Court

strong>Charges: Sexual Assault; Assault; Theft Under; Breach of Undertaking.
Issue: Given our client's circumstances and the circumstances of the allegations, whether it was in the public interest for Crown to proceed with all charges.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the assault charge and to stay proceedings on all other charges. After considering Mr. mines' submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. V.P. - Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Police Officer.
Issue: Given some weakness in the assault with weapon charge and the rehabilitative steps our client had taken, whether it was appropriate for the Crown to seek the jail sentence they were originally seeking.
Result: Mr. Johnson was able to persuade Crown counsel to enter a stay of proceedings on the AWW charge and to jointly seek a conditional discharge on the assault police officer charge. No jail. No criminal conviction.

R. vs. S.K. - Surrey Provincial Court

Charges: Fraud Over $5000 (from Employer).
Issue: Given the civil settlement  we were able to obtain on our client's behalf, whether it was in the public interest to proceed with criminal charges.
Result: Mr. Johnson, after successfully negotiating a civil settlement with the complainant, was able to persuade Crown counsel to not approve the criminal charges that RCMP had recommended. No jail. No criminal record.

R. vs. D.M. - Vancouver Provincial Court

Charges: Impaired Driving; Driving Over .08.
Issue: Whether it was in the public interest for Crown counsel to proceed with the criminal charges.
Result: Mr. Johnson was able to persuade Crown to allow our client to resolve this matter by pleading guilty to a lesser offence under the Motor Vehicle Act. Our client received a driving prohibition and fine. No criminal record.

R. v. S.W. - Courtenay RCMP Investigation

Charges: Possession for the Purpose of Trafficking.
Issue: Whether the search of the vehicle and our client was lawful.
Result: Mr. Mines was able to steer our client through the investigation and made representations to police that the search was unlawful. Police declined to recommend any  charges. No criminal record.

R. vs. A.N. - Vancouver Provincial Court

Charges: Assault with a Weapon.
Issue: Given the rehabilitative steps we guided our client through, whether it was in the public interest for Crown to seek a conviction on this charge.
Result: Mr. Johnson was able to persuade Crown to permit our client to plead to the lesser offence of common assault. After hearing Mr. Johnson's submissions, the court granted our client a conditional discharge. No criminal conviction.

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.