This blog post breaks down some of the more readily available defences to driving while prohibited cases.
The Motor Vehicle Act sets various standards for acts that involve a vehicle. This was discussed in a previous blog post about cannabis, where I broke down the difference between driving, operating, and being in care and control of a motor vehicle.
For the purposes of a driving while prohibited charge, the Motor Vehicle Act requires actual driving. This means that a person who is sleeping in a vehicle that is running, or a person who is sitting in the driver’s seat of a parked car cannot be charged with driving while prohibited. It is a clear defence to the charge that you did not drive.
However, the court at your driving while prohibited trial can rely on other evidence to establish that you were driving. An example: police are tipped off by a jealous ex-boyfriend that a certain person drives while prohibited. Yes, this happens. Frequently. The police may see the vehicle in a parking lot and the person emerging from a nearby building or business. A court could, with the right circumstantial evidence, rely on the common sense inference that the vehicle was driven by the prohibited driver. The inference becomes stronger where the vehicle is registered to the would-be driver.
That being said, these inferences are not absolute nor do they need to be drawn. If you are charged with driving under suspension in a similar circumstance, a skilled lawyer can cross-examine the witnesses to eliminate the ability of the court to draw the inference.
What is driving also becomes particularly relevant after a collision. I have defended numerous driving while prohibited cases flowing from accidents where there is not a clear connection between the vehicle and the person charged with driving under suspension. In those circumstances, again, the court can rely on inferences and circumstantial evidence. This is why the assistance of a lawyer and a good cross-examination is a fundamental defence to driving while prohibited.
I have also encountered cases involving individuals who are working on repairs to their vehicles. While they may be dealing with the vehicle, the circumstances related to where and what was done with the vehicle make this a fertile ground for a defence to the driving while prohibited charge.
Which brings me to the next defence.
What is a Roadway:
Driving while prohibited charges take place on highways or industrial roads. There is not a prohibition in the Motor Vehicle Act against operating a vehicle on your private property while suspended.
One of the leading cases on private property is the case of Jago v. British Columbia (Superintendent of Motor Vehicles). In that case, Mr. Jago was pulling away from his father’s house when he was stopped from leaving the driveway by Constable Tait. The Court determined that Mr. Jago was not a driver on a roadway because, although he was clearly about to enter the roadway, he had not yet done so and the reach of the Act did not extend to a driveway or private property.
Now, in this case it was not alleged that Mr. Jago was driving under suspension. However, the analysis is apposite, as the definition of highway or industrial road is the same.
But there are also broader issues related to where driving takes place that can arise in these cases. For example, some private places are also public places. Similarly, some seemingly public places are not public at all.
Take, for example, the issue of reserve lands. In some cases, the courts have found that reserves are not highways or places where a driving prohibited charge can stand. In others, the courts have found that they are. Any time a person is driving while prohibited on a reserve, the court will have to do a serious analysis of whether the reserve roadway is a highway open to the public or not. And so on a reserve there can be significant defences to a driving while prohibited charge.
Another example is parking lots. I succeeded in a case in BC Supreme Court where I successfully argued that it was not proven that a particular parking lot was a highway or industrial road. In order for it to be one, and for the provisions of the Motor Vehicle Act to apply, there would need to be evidence that the parking lot was open to the public for the purpose of parking or servicing motor vehicles. There was no such evidence. Parking lot cases are complex, but they also provide fertile ground for legal argument and strong defences.
Proof of Prohibition:
In order for the Crown to prove a driving while prohibited case, the Crown must establish three things: first, that the person was prohibited; second, that the person knew they were prohibited; and third, that the person drove while prohibited.
The first and second issues are the easiest for Crown to prove, and the third requires some evidence of identity and the driving issues noted above.
In order to prove that a driver was prohibited, the Crown is permitted to rely on certain provisions of the Motor Vehicle Act that permit them to introduce documentary evidence. Essentially, any record held by ICBC or the Superintendent of Motor Vehicles is presumptively admissible for the truth of its contents, without any further proof. This means that if ICBC or the Superintendent of Motor Vehicles have a document that indicates a person were prohibited when that person drove, that document can automatically be introduced at trial to prove that the person was driving under suspension.
Another way the Crown may attempt to prove that you were prohibited is by calling a police officer who served the person was prohibited. Oftentimes, people are caught driving after the police have given them a prohibition, for example an Immediate Roadside Prohibition or a 24 hour prohibition for drugs. That officer can come to court and give testimony that he or she gave the driver a driving prohibition, and this can establish proof of knowledge. This does not ordinarily happen, and when it does it is usually because there is some sort of defect in ICBC’s record that require the attendance of the officer who served the prohibition.
Often an experienced driving while suspended lawyer like myself can spot the defect and use it to create a reasonable doubt in the case.
The second issue, proving that you knew you were prohibited is also accomplished through the ICBC records. The Motor Vehicle Act allows the prosecution to rely on the ICBC records to prove that a person was prohibited and that they knew they were prohibited. However, for this to be the case there is a catch. The ICBC record must contain one of three things:
- A Certificate of Service, showing that the prohibition was personally served on the driver;
- A Registered Mail record, showing that the prohibition was collected by registered mail; or
- A signature that matches the signature in ICBC’s database showing that the person acknowledged the prohibition.
The problem is that often, these documents do not exist. Or there are defects with them, which an experienced driving under suspension lawyer like myself can spot and use to undermine the validity of the prohibition in the first instance.
Identifying the Prohibited Driver:
Proving that a person drove while prohibited requires the testimony of an officer or another witness who can identify the person as a prohibited driver. It requires some evidence that the driver of the vehicle was the person before the court. This is generally easy to do, as police are trained to identify prohibited drivers using information that matches an ICBC database. Police will often also take a photograph or video of the person they have stopped for driving under suspension and use that as evidence in court.
However, there are interesting issues that arise when this is done. For example, taking a photograph or video without consent may amount to a search or seizure and be considered a violation of your Charter rights. There is no power under the Identification of Criminals Act to fingerprint or photograph a person for driving under suspension, as it is a provincial offence. So the police may not have an automatic right to take these photographs.
This issue has yet to be fully litigated but it is an interesting and fruitful area of defence in a prohibited driving case.
In cases where the police do not take a photograph or video, identification of a prohibited driver can be difficult to prove. Generally speaking, it is common for those who are driving under suspension to give a false name or information to police. The police are aware of this, and should be taking steps to follow up and ensure they are dealing with the right person. This may include checking the ICBC database for other descriptors, or reviewing other forms of identification. After all, if the driver is prohibited they often do not have a driver’s license in their possession.
The police officer who stopped the prohibited driver will also have testify in court that the same person they stopped is present in court. If the police do not record good information about the identity of a prohibited driver, then their in-court identification may be given less weight, particularly where they are a member of a traffic unit conducting multiple traffic stops every shift.
Challenging the Underlying Prohibition:
Some people believe that there is a defence to a driving prohibited charge if the underlying prohibition is not valid. The theory behind this is logical: if the person never should have been prohibited, is it really fair to charge them with driving while prohibited? While I do not think it is, the reality is that the police are absolutely permitted to do this.
There is a legal rule called the rule against collateral attacks. This means that when facing a charge for violating an order, like a driving prohibition, it is not a defence that the underlying order is not valid. So for those charged with prohibited driving, to argue that the prohibition was not valid is not a defence to the prohibition.
Knowledge of the Prohibition:
One of the biggest defences to a driving while suspended charge is that the driver did not know they were prohibited. This defence often requires that the allegedly prohibited driver testify as to their state of knowledge. For this reason, these defences can be more complex than they may seem on their face.
For example, it is not enough to say that a person did not understand the legal document they were given. The court takes the position that if a person is given a legal document by police that they do not understand, they will take reasonable steps to have it translated, explained, or seek legal advice. However, if the legal advice is inadequate or the translation poor, there may nevertheless be a defence on the basis of an absence of knowledge.
Another way that people are often able to establish a defence on the basis of a lack of knowledge is through reliance on ICBC and their staff. Many ICBC agents will misinform or otherwise mislead people into believing that they are permitted to drive. This is generally not intentional, and comes from the urge by ICBC staff to provide information to assist customers. This defence is known as “officially induced error.”
In order to establish a defence of officially induced error, it is necessary to show that the information was sought out from someone in an official capacity, and that the information was relied on in making the decision to drive after being given a driving prohibition. It is best to contact a lawyer if you are in a situation of officially induced error, as certain disclosure documents can be obtained by your lawyer that may make this defence easier to prove, depending on the circumstances.
If you are facing a driving while prohibited charge, your best course of action is to call an experienced driving prohibition lawyer today.
