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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. K.C. – Delta Police Investigation

Charges: Assault Causing Bodily Harm.
Issue: Whether it was in the public interest to proceed with criminal charges for this alleged assault that occured in the context of a recreational sporting activity.
Result: Mr. Mines provided information to the police investigator on our clients's behalf. Ultimately police decided to not recommend any criminal charges. No prosecution; no criminal record.

R. vs. K.J. – Surrey Provincial Court

Charge: Uttering Threats.
Issue: Given the circumstances of the alleged offence and 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. Gauthier was able to persuade Crown counsel to stay the proceedings and to resolve this matter with a 12 month Peace Bond. No criminal record.

R. vs. Z.A. – Burnaby RCMP Investigation

Charge: Assault (domestic).
Issue: Whether the allegations of this domestic allegation would meet the Crown counsel's charge approval standard.
Result: Mr. Gauthier was able to provide information to Crown counsel that ultimately led to Crown declining to approve any criminal charge. Our client's Undertaking was withdrawn, permitting him to resume contact with his spouse. No criminal record.

R. vs. K.L. – North Vancouver Provincial Court

Charges: Assault.
Issue: Given the information we provided to Crown counsel on behalf of our client, whether  it was appropriate to proceed with a criminal prosecution.
Result: Mr. Gauthier was able tp persuade Crown counsel that this matter did not meet the charge approval standard. Croen elected to not approve any charges. No prosecution. No criminal record.

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

Charges: Assault with a weapon.
Issue: Given the circumstances of the offence and the rehabilitative steps that we were able to guide our client through, whether it was in the public interest for our client to be granted a conditional discharge in this case involving our client not obeying  a traffic flag person and assaulting her with her car.
Result: Mr. Mines was able to persuade Crown and the Court to grant our client  a conditional discharge. Our client was placed on probation with a term to perform community service work.

R. vs. X.Z. – Vancouver Provincial Court

Charges: s.810 Recognizance (Peace Bond) Application.
Issue: Whether there was sufficient evidence for the crown to prove that the complainant's fear was reasonable.
Result: Mr. Gauthier was able to provide information to Crown that helped persuade Crown to enter a stay of proceedings. No Peace Bond was imposed on our client.

R. vs. Z.Y. – Healthcare Insurance Fraud Investigation

Charges: Fraud Under $5000.
Issue: Given the prompt repayment of restitution that we made on our client's behalf, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the investigator to not forward any charges for prosecution. No criminal record.

R. vs. A.M. – Port Coquitlam Provincial Court

Charges: Pointing a firearm; assault with a firearm.
Issue: Given the context of the offence and our client's remorse and rehabilitation, whether a jail sentence was appropriate.
Result: Mr. Mines was able to direct our client through a course of counselling and was able to persuade Crown counsel to make a joint recommendation for a community based sentence rather than the 2 year jail sentence that was Crown's original sentencing position. After hearing Mr. Mines' submissions, the court granted our client an 18 month conditional sentence, followed by 12 months probation. No jail.

R. vs. T.B. and M.L. – Surrey RCMP Investigation

Charges: Possession of Stolen Property over $5000.
Issue: Whether police had sufficient grounds to recommend criminal charges against our clients.
Result: After Mr. Gauthier consulted with the investigator, RCMP decided to refer the case for civil forfeiture and to not pursue  any criminal charges against our clients. No prosecution. No criminal record.

R. vs. I.M. – ICBC Insurance Fraud Investigation

Charges: Fraud/misrepresentation.
Issue: Whether our client actually intended to make a misleading or fraudulent automobile accident claim.
Result: After consulting with us, our client provided an explanation to the investigator that resulted in ICBC deciding to not recommend any charges.  No prosecution. No criminal record.

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

Charges: Theft (from employeer) Over $5000.
Issue: Whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with a criminal prosecution.,br> Result: Upon Mr. Mines providing information to Crown counsel that our client had fully settled the matter civilly and that there was a significant chance that a key Crown witness would be unavailable at trial, Crown counsel entered a stay of proceedings. No criminal record.

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

Charges: Residential Breaking and Entering x3; Possession of a prohibited weapon; driving offences.
Issues: Whether it was in the public interest to proceed on all outstanding charges and whether 30 months jail was an appropriate sentence.
Result: Mr. Johnston was able to provide information to Crown counsel about our client's significant rehabilitation plan and persuaded Crown to drop 8 counts against our client. Mr. Johnston persuaded the court to impose a sentence of 12 months' jail rather than the 30 months the Crown was seeking.

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.