In a ruling that may impact an unknown number of existing and expired driving prohibitions, the Supreme Court of Canada has ruled 5-4 that since Criminal Code changes (Bill C-46) went into effect on Dec. 18, 2018, sentencing judges no longer had the discretion to impose driving bans for the offences of criminal negligence causing death or bodily harm.
Criminal lawyer Kyla Lee of Vancouver, who defends particularly complex drinking and driving cases, told Law360 Canada that anyone who has been sentenced to a driving prohibition for criminal negligence causing death or bodily harm since December 18, 2018, can apply to their Court of Appeal to have the prohibition removed.
“It will likely be a relatively simple process,” she predicted. “I think we will see a short flood of these applications, but they will be rubber-stamped by appellate courts, much like we saw when pre-sentence time-served credit was changed.”
Even eligible people who have already served out a driving prohibition “can still apply because the prohibition would still be reflected on the record and can impact both the time required before a pardon application can be filed and also how a motor vehicle branch may view the driving record should subsequent offences be committed,” she suggested.
“Defence counsel should be filing an application for appeals of sentence, and extensions of time, where appropriate,” Lee advised. “All driving prohibitions for non-enumerated offences imposed under 320.24(4) are effectively illegal sentences.”
