Many people who contact my office are not sure about whether they are facing the consequences of a criminal record for a driving while prohibited charge. These individuals are wondering whether a driving while prohibited charge is a criminal charge. And the answer, unfortunately, is more complicated than a simple “yes” or “no.”
In order to better understand this issue, first we need to understand what we are dealing with when looking at a driving while prohibited charge.There are two types of driving while prohibited charge. The first is a criminal charge for driving while prohibited. The second is a Motor Vehicle Act offence for driving while prohibited.
Determining whether you are charged criminally is important in knowing what potential consequences you face, what evidence is required to prove the case against you, and the defences that may apply.
The difference in the two charges lies in the reason that you were initially prohibited from driving.
Criminal Charges for Driving While Prohibited
If your driving prohibition was given to you as a result of a criminal conviction in court, such as for impaired driving or flight from police, then your driving while prohibited charge is a criminal charge. Prior to December, 2018, this charge was known as driving while disqualified.
Unfortunately, when the law was amended in 2018, the name was changed and the distinction that easily helped people to understand what charge they were facing was eliminated. Section 320.18 of the Criminal Code of Canada is the section that prohibits driving while prohibited.
The consequences for driving while prohibited under the Criminal Code depend on how the offence is prosecuted. If by indictment, the punishment is up to ten years in jail. If prosecuted summarily, there is no minimum punishment but you could face up to six months in jail or a fine of up to $2000. In addition, the court has a discretionary power to issue a driving prohibition. However, a driving prohibition is not mandatory under the Criminal Code.
Unless you receive a conditional or absolute discharge for driving while prohibited, you will receive a criminal record if you are charged criminally. A discharge for this offence is extremely rare, and a good lawyer can help you to avoid that consequence.
Motor Vehicle Act Charges for Driving While Prohibited
If your driving prohibition was given to you under provincial authority, such as for an Immediate Roadside Prohibition or from a driving prohibition letter in the mail, then your driving while prohibited charge is not a criminal charge.
The consequences under the Motor Vehicle Act are very severe. For a first offence, there is a mandatory minimum fine of $500 and a one-year driving prohibition. No judge has discretion to impose a lower sentence.
A subsequent conviction carries with it a mandatory minimum fourteen-day period in jail. The longer and more frequent the convictions become, the longer the jail that is imposed. It is not uncommon for people in British Columbia to receive sentences of 90 days or longer in jail for driving while prohibited.
A person facing a driving while prohibited charge under the Motor Vehicle Act cannot serve a mandatory jail sentence as house arrest. This means that you will have to go to actual jail if you are convicted a second time of this offence.
That being said, I have dealt with numerous cases where I was able to help my clients avoid a mandatory jail sentence for driving while prohibited by relying on some nuanced legal requirements that the prosecution must comply with in order to seek mandatory jail. A good understanding of the law and the legal requirements for imposing mandatory jail sentences is key in helping you to avoid them.
Some Exceptions to the Rule
There is one tricky exception to the distinction noted above.
In some circumstances, a driving prohibition is issued under provincial authority after a criminal conviction. This can include a three-year or lifetime driving ban as a result of multiple criminal convictions. If you violate that driving ban, the driving while prohibited charge can be prosecuted as a criminal charge or a Motor Vehicle Act charge.
In order to determine whether you have a charge under the Motor Vehicle Act or the Criminal Code you can look at the documentation that you were given by the police. If the document refers to “Criminal Code” or “CCC”, or has a section number “320.18” listed on it, you are being charged criminally. If the documentation refers to “Motor Vehicle Act” or “MVA,” or has a section number “95” or “251” then you are being charged under the Motor Vehicle Act.
Of course, you can always contact me and send me your documentation through my contact form, and I will let you know whether you are being charged criminally or under the Motor Vehicle Act. I am always willing and ready to help you understand what charges you are facing and whether anything can be done to fight them.
