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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. When prosecuted by indictment, the maximum sentence may be 10 years jail. If prosecuted summarily, the maximum sentence may be two years less a day. 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. – Vancouver Provincial Court

Charges: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether it was in  the public interest continue with a criminal prosecution.
Result: Mr. Mines was able to persuade Crown counsel to proceed with a Peace Bond rather than the criminal assault charge. No criminal record.

R. vs. K.Q. – Richmond Provincial Court

Charge: Mischief to Property.
Issue: After Mr. Gauthier was able to facilitate making restitution on our client's belf, whether it was in the public interest top proceed with the criminal prosecution.
Results: Crown counsel accepted Mr. Gauthier's representations and concluded the matter by entering a stay of proceedings. no criminal record.

R. vs. A.V. – Duncan Provincial Court

Charge: Assault.
Issue: Given the information Mr. Johnston was able to provide to Crown counsel about our client's circumstances and the significant rehabilitation steps we were able to guide him through, whether it remained in the public interest to continue with the prosecution.
Result: Crown counsel accepted Mr. Johnston's representations and concluded the matter by entering a stay of proceedings. No criminal record.

R. vs. D.J. – Chilliwack Provincial Court

Charge: Assault (reduced to Peace Bond).
Issue: Given the rehabilitative steps we were able to guide our client through, whether a criminal prosecution was appropriate.
Result: Mr. Mines was able to persuade Crown counsel to proceed pursuant to a s. 810 Peace Bond, and to enter a stay of proceedings on the criminal charge. After hearing Mr. Mines' submissions, the Court placed our client on the Peace Bond. No criminal record.

R. v. Q.C. – Insurance Fraud Investigation

Charge: Insurance fraud over $5000 investigation.
Issue: Given our client's rehabilitation and repayment of disputed funds, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to persuade the Insurance company to settle the matter on a civil basis. No criminal charhges were forwarded. No criminal record.

R. vs. D.K. – Surrey Provincial Court

Charges: Assault; assault with a weapon; breach of undertaking (x2); attempting to take weapon from police.
Issue: Whether our client's personal circumstances and positive rehabilitative steps made him a good candidate for a conditional discharge.
Result: Mr. Mines was able to persuade Crown counsel to proceed only on the common assault charge and to stay proceedings on the remaining four criminal charges. After hearing Mr. Mines'submissions, the Court granted our client a conditional discharge and placed him on probation for 12 months. No criminal conviction.

R. vs. A.S. – North Vancouver Provincial Court

Charges: Fraud Over $5,000 (x4); Theft Over $5,000 (x4).
Issue: Given that full restitution was made and that our client had taken significant steps toward self-rehabilitation, whether jail was the appropriate sentence for this $240,000 employee fraud.
Result: Mr. Mines was able to facilitate the restitution payment and provided medical information to Crown counsel on our client's behalf. Ultimately Mr. Mines persuaded Crown to  jointly  recommend a non-custodial sentence. After hearing Mr. Mines' submissions, our client was granted a 2 year less a day conditional senntence.. No jail.

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

Charges: Assault Causing Bodily Harm (reduced to assault).
Issue: Whether the caselaw supported our client receiving a conditional discharge for this domestic assault case in which the coplainant sustained a significant injury.
Result: Mr. Gauthier was able to provide Crown counsel with information about our client and a number of case authorities which resulted in Crown agreeing to proceed on assault simpliciter  and to make a joint recommendation for a conditional discharge, which was accepted by the court.

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

Charges: Assault causing bodily harm.
Issue: Given the parallel civil claim and the issue of  self defence, whether there was a substantial likelihood of a conviction and whether it was in the public interest to proceed with the prosecution.
Result: Mr. Gauthier was able to provide information about our client's circumstances and the circumstances of the incident which caused Crown counsel to enter a stay of proceedings. No criminal record.

R. vs. P.G. – Richmond Provincial Court

Charges: Assault; Assault by Choking.
Issue: Whether our client was acting in self defence and whether he used excessive force.
Result: Mr. Mines was able to guide our client through a course of self rehabilitation and to persuade Crown to proceed on the lesser charge of simple assault. After hearing Mr. Mines' submissions, the Court granted our client a conditional discharge and declined to make the restitution order sought by the complainant. No criminal conviction.

R. vs. C.C. – Insurance Fraud Investigation

Charges: Fraud Over $5,000 Investigation.
Issue: Given that we were able to negotiate a civil settlement of this $6,000 insurance claim overpayment, whether it was in the public interest to proceed with a criminal prosecution.
Result: Mr. Gauthier was able to negotiate a settlement of the alleged fraudulent claim. We obtained a full Release, ending the matter. No further liability. No criminal charges were forwarded.

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

Charges: Sexual assault; assault.
Issue: Whether the trial judge would allow Mr. Mines' application to cross examine the complainant on prior records (text messages) that impacted her credibility and reliability.
Result: The trial judge allowed our application in part, and ruled that the remaining issues could be renewed at at further point in the trial. Crown counsel entered a stay of proceedings after the conclusion of our application. No further prosection. No jail. no criminal record.
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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.

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