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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. v. R.L. – New Westminster Supreme Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. J.H. – Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to continue with the prosecution in this retrial after a deadlocked jury decision.
Result: upon considering all of Mr. Mines' representations, Crown counsel entered a stay of proceedings. No jail. No criminal record.

R. vs. B.J. – Downtown Community Court

Charge: Theft of property of a value not exceeding $5,000
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston identified weaknesses in the available video evidence which persuaded the Crown to direct a stay of proceedings on the charge. No jail. No criminal record.

R. vs. A.M. = Vancouver Provincial Court

Charges: Assault with a Weapon; Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Johnston provided Crown counsel with information about our client’s circumstances, including his lack of prior criminal offending, his efforts at rehabilitation, and the fact that a conviction for either offence could result in the client’s deportation, an outcome which Mr. Johnston argued would be disproportionate to the seriousness of alleged offences. At the same time, Mr. Johnston pointed out weaknesses in the evidence against our client. The Crown directed stays of proceedings on both charges. No jail. No criminal record.

R. vs. A.V. – Vancouver Provincial Court

Charges: Uttering Threats x3; Criminal Harassment; Breach of Release Order (domestic).
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with the prosecution of these matters.
Result: Mr. Gauthier was able to persuade Crown counsel that it was more appropriate to deal with these matters in the context of Family Court. Ultimately Crown did not approve the uttering threats and criminal harassment charges and Mr. Gauthier persuaded Crown that there was no public interest in prosecuting the breach charge and to enter a stay of proceedings. No jail. No criminal record.

R. vs. K.L. – Terrace RCMP Investigation

Charges: Assault.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Mines presented additional information to Crown counsel which resulted in Crown  declining to approve any charge.  No criminal record.

R. vs. O.P. – Victoria Provincial Court

Charges: Voyeurism; Criminal harassment.
Issue: Whether Crown could prove that our client actually recorded and distributed images without consent of the complainant.
Result: Mr. Gauthier was able to persuade Crown counsel to proceed only on the criminal harassment charge. After hearing Mr. Gauthier's submissions, the trial judge granted our client a conditional sentence order with a curfew for two months. No jail.

R. vs. T.B. – Vancouver Provincial Court

Charges: Indecent Act; Assault With a Weapon; Possessing of a Weapon for Dangerous Purpose (x2); Robbery; Uttering Threats; Theft of Property of a Value not Exceeding $5,000.
Issue: Whether there was a substantial likelihood of conviction and whether it was in the public interest to proceed with prosecution of all counts; whether a jail sentence was appropriate.
Result: Mr. Johnston identified weaknesses in the evidence which persuaded the Crown there was no reasonable prospect of conviction on the Indecent Act charge.  Mr. Johnston persuaded Crown counsel  to resolve the case on three of the remaining counts and to stay all remaining charges. After hearing Mr. Johnston's submissions regarding our client's personal circumstances and his significant rehabilitation efforts,  the Court agreed to release our client from custody and to place him on a probation order with conditions supporting his rehabilitation. No further jail time.

R. vs. M.G. – RCMP Investigation

Charges: Possession for the purpose of trafficking.
Issue: Whether there was a substantial likelihood that Crown could establish that our client was a willing participant in the alleged drug trafficking scheme.
Result: Mr. Mines was able to provide information and persuade police to not seek any criminal charges against our client. No No charges were approved. Our client's vehicle was retuned. No criminal record.

R. vs. A.K. – New Westminster Provincial Court

Charges: Assault.
Issue: Whether there was a reasonable likelihood of a conviction and whether it was in the public interest to proceed.
Result: Mr. Mines was able to provide additional information and persuaded Crown counsel stay the charge upon our client completing the Alternative Measures Program. No criminal record.  

R. vs. K.L. – Vancouver Police Investigation

Charge: Assault Peace Officer.
Issue: Whether there was a substantial likelihood of a conviction in this case which involved an alleged assault of a police officer.
Result: Mr. Gauthier provided information and a video to Crown counsel which showed that the police made an unlawful arrest thereby giving our client lawful grounds to defend himself. Mr. Gauthier was able to persuade Crown to not approve any charges. No criminal record.

R. vs. C.D. – Vernon Provincial Court

Charges: Assault with a weapon; Mischief to property.
Issues: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the criminal prosecution in this case where our client allegedly intentionally collided with the complainant's vehicle.
Result: Mr. Gauthier provided additional information to Crown counsel and was able to persuade Crown to resolve this matter with a s.810 Recognizance (Peace Bond).    

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.