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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. 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.

R. vs. J.J. - Richmond Provincial Court

Charges: Assault Causing Bodily Harm.
Issue: Whether there was a substantial likelihood of  the Crown being able to prove that bodily harm occurred.
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.

R. vs. S.W. - Vancouver Provincial Court

Charge: Assault (domestic).
Issue: Given that the complainant had instigated the altercation, whether it was in the public interest for our client to be convicted of the offence.
Result: We were able to guide our client through a course of rehabilitation and, after hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and placed him on a non-reporting probation order for six months. No criminal conviction.

R. vs. S.W. - Richmond Provincial Court

Charge: Refusing to comply with a testing demand.
Issue: Given the circumstances of the offence and our client, whether it was in the public interest to proceed with the criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the lesser Motor Vehicle Act offence of driving without due care. Rather than a criminal conviction and a minimum 12 month driving prohibition, our client was liable to pay a $350 fine and a 2 month driving prohibition. No criminal record.

R. vs. H.S. - North Vancouver Provincial Court

Charge: Driving While Prohibited.
Issue: Given the circumstances of the offence and our client, whether it was necessary for Crown to proceed with the driving while prohibited charge, which carries a mandatory minimum 12 month driving prohibition.
Result: Mr. Johnson was able to persuade Crown to proceed on the lesser Motor Vehicle Act charge of driving without a driver's licence. After hearing Mr. Johnson's submissions our client was sentenced to a fine and a 4 month driving prohibition.

R. vs. J.S. - North Vancouver Provincial Court

Charge: Assault Causing Bodily Harm (domestic).
Issue: Whether the Crown could prove that bodily harm resulted and, whether the rehabilitative steps our client had taken justified the Court granting a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed on the charge of common assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge. No criminal conviction.

R. vs. C.M. - North Vancouver Provincial Court

Charge: Assault; Threatening.
Issue: Whether there was a substantial likelihood of conviction in this alleged "road rage" case.
Result: Mr. Johnson was able to provide information to Crown counsel on our client's behalf that led Crown to conclude there was no substantial likelihood of conviction. No charge approved. No criminal record.

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

Charges: Theft Under $5000; Uttering Threats.
Issue: Whether, given our client's circumstances and remorse, whether it was in the public interest for criminal charges to proceed.
Result: We were able to provide information to police investigators which resulted in police deciding to not forward any charges to Crown. No criminal record.

R. vs. H.L. - Richmond Provincial Court

Charge: Sexual Assault.
Issue: Whether there was a substantial likelihood of a conviction.
Result: Mr. Johnson was able to provide information to the Crown on our client's behalf that persuaded Crown that the case did not meet the charge approval standard. No charge was approved. No criminal record.

R. vs. S.F. - Provincial Court of Newfoundland

Charge: Possession for the Purpose of Trafficking (Marijuana).
Issue: Whether it there was a substantial likelihood of obtaining a conviction.
Result: Upon considering Mr. Johnson's representations, Crown counsel concluded that there was no longer a likelihood of conviction. Crown withdrew the charge, bringing the matter to an end. No criminal record.

R. vs. M.B. - Surrey Provincial Court

Charge: Application for firearms prohibition and forfeiture.
Issue: Whether Crown could establish that our client posed a risk to himself or others.
Result: Mid trial, Mr. Mines was able to obtain a successful resolution in which our client consented to an 18 month prohibition rather than the 5 years Crown had been seeking.  Further, rather than having to forfeit the  $15,000 worth of weapons that police seized,  Crown agreed to allow our client to sell them to a suitable buyer.

R. vs. C.B. - Vancouver Police Investigation

Charge: Possession of proceeds of crime.
Issue: Whether there was any lawful authority to arrest our client and seize funds from him.
Result: Mr. Johnson was able to persuade the investigating officer that there was no basis to search our client and to return the $2400 cash that he had seized. No charges approved. Not 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.