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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. M.P. – ICBC insurance fraud investigation.

Charge: Insurance fraud.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to steer our client through the investigation by helping our client rectify the fraudulent information that he had provided to I.C.B.C. No charges approved. No criminal record.

R. vs. S.B. – Port Coquitlam Provincial Court

Charges: Assault Causing Bodily Harm; Assault Police Officer.
Issue: Given our client's severe mental health issues, whether he was criminally responsible for the offences.
Result: Mr. Gauthier was able to provide information about our client's mental health history to Crown counsel and, ultimately, was able to persuade Crown to end the prosecution. Stay of proceedings. No jail. No criminal record.

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

Charge: Mischief Under $5000.,br> Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier provided information about our client to Crown counsel and was able to persuade Crown that there was no public interest in prosecuting this matter. No charge approved. No criminal record.

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

Charge: Mischief Under $5000.
Issue: Whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier provided information about our client to Crown counsel and was able to persuade Crown that there was no public interest in prosecuting this matter. No charge approved. No criminal record.

R. vs. W.F. – Richmond Provincial Court

Charge: Assault.
Issue: Whether this road rage incident was a criminal offence or a consensual fight.
Result: Mr. Johnson was able to present Crown counsel with video evidence which confirmed that the complainant had engaged in a consensual altercation. Stay of proceedings. No criminal record.

R. vs. K.Y. – Surrey Provincial Court

Charge: Assault Causing Bodily Harm.
Issue: Whether the 18 month jail sentence Crown had sought was reasonable in all the circumstances.
Result: Mr. Johnson provided information to the Crown and Court and ultimately persuaded the trial judge to sentence our client to a 7 month conditional sentence , followed ny 18 months probation. No jail.

R. vs. G.W. – North Vancouver RCMP Investigation

Charge: Assault with a weapon.
Issue: Whether there was sufficient evidence to support a criminal prosecution.
Result: Mr. Johnson was able collect information from a defence witness and represent to police that our client should not  be prosecuted. Police concluded their investigation without recommending any criminal charge against our client. No criminal record.

R. vs. J.S. – Vancouver Provincial Court

Charge: Assault with a Weapon.
Issue: Given the rehabilitative steps we directed our client to complete, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Gauthier was able to persuade Crown counsel to not approve any charge prior to the scheduled first court appearance. No criminal record.

R. vs. S.L. – Port Coquitlam Provincial Court

Charges: Possession of a loaded prohibited firearm; Unlawful storage of firearms.
Issue: Whether the warrant used to search our client's premises was lawful; whether our client posed a risk to re-offend.
Result: Mr. Mines was able to point to potential flaws in the warrant and police search which culminated in Crown's agreement to not pursue their original sentencing position of a 2-3 year jail sentence. Rather, the court accepted a joint submission of a 12 month conditional sentence with a curfew for the first six months. No jail.

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

Charges: Assault with a Weapon (x2).
Issue: Whether it was in the public interest for the court to grant our client a conditional discharge.
Result: Mr. Mines was able to direct our client through a course of rehabilitative counselling, and after hearing Mr. Mines' submissions, the trial judge granted our client a conditional discharge. No criminal conviction.

R. vs. K.D. – Vancouver Provincial Court

Charges: Assault (domestic).
Issue: Given the rehabilitative steps that we were able to guide our client through, whether there was a public interest in continuing with the prosecution.
Result: Mr. Mines was able to persuade Crown counsel to amend the bail condition to allow "permissive contact" with the complainant, and after providing Crown with a report from our client's psychologist Crown counsel ended the prosecution. Stay of proceedings. No criminal record.

R. vs. J.L. – Vancouver Provincial Court

Charges: Sexual assault; Unlawful Confinement; Assault by Choking.
Issue: Given the impact of the additional evidence that Mr. Johnson provided to Crown counsel, whether there was a substantial likelihood of a conviction.
Result: Crown counsel agreed that the new evidence significantly undermined the strength of the case.  Crown counsel entered a stay of proceedings, bringing the prosecution to an end. No jail. No criminal record.

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.