Difference between revisions of "Driving While Prohibited (Offence)"

From Criminal Law Notebook
Jump to navigation Jump to search
(One intermediate revision by the same user not shown)
Line 143: Line 143:
  
 
Drivers who "continuously ignore driving prohibitions imposed in the context of drinking and driving offences must be deterred by the imposition of a significant custodial term."<ref>
 
Drivers who "continuously ignore driving prohibitions imposed in the context of drinking and driving offences must be deterred by the imposition of a significant custodial term."<ref>
''R v Bighead'', [http://canlii.ca/t/fz79z 2013 SKCA 63] (CanLII){{perSKCA|Herauf JA}}{{at|6}}
+
''R v Bighead'', [http://canlii.ca/t/fz79z 2013 SKCA 63] (CanLII){{perSKCA|Herauf JA}}{{atL|6|http://canlii.ca/t/fz79z}}
 
</ref> In these cases the focus is on denunciation and deterrence.<ref>
 
</ref> In these cases the focus is on denunciation and deterrence.<ref>
{{ibid1|Bighead}}{{at|6}}</ref>
+
{{ibid1|Bighead}}{{atL|6|http://canlii.ca/t/fz79z}}</ref>
  
 
{{Reflist|2}}
 
{{Reflist|2}}
Line 187: Line 187:
 
; General Forfeiture Orders
 
; General Forfeiture Orders
 
{{GeneralForfeitureOrders}}
 
{{GeneralForfeitureOrders}}
 +
 +
==Record Suspensions and Pardons==
 +
 +
{{RecordSuspension|s. 320.18 [driving while prohibited]}}
  
 
==History==
 
==History==

Revision as of 17:24, 14 August 2019


Driving While Prohibited
s. 320.18 of the Crim. Code
Election / Plea
Crown Election Hybrid
summary proceedings must initiate within 6 months of the offence (786(2))
Jurisdiction Prov. Court

Sup. Court w/ Jury (*)
Sup. Court w/ Judge-alone (*)

* Must be indictable. Preliminary inquiry also available.
Types of Release Release by Officer, Officer-in-charge, or Judge
Summary Dispositions
Avail. Disp. Discharge (730)

Suspended Sentence (731(1)(a))
Fine (734)
Fine + Probation (731(1)(b))
Jail (718.3, 787)
Jail + Probation (731(1)(b))
Jail + Fine (734)

Conditional Sentence (742.1)
Minimum None
Maximum 2 years less a day
Indictable Dispositions
Avail. Disp. same as summary
Minimum None
Maximum 10 years incarceration
Reference
Offence Elements
Sentence Digests

Overview

Offences relating to driving while prohibited are found in Part VIII.1 of the Criminal Code concerning "Offences Relating to Conveyances".

Pleadings
Offence
Section
Offence
Type
Crown Election Defence Election
s. 536(2)
s. 320.18 [driving while prohibited] Hybrid Offence(s) Yes Yes, if Crown proceeds by Indictment

Offences under s. 320.18 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).

Release
Offence(s) Attendance Notice
Without Arrest

s. 496
Summons
Without Arrest
s. 497
Release By
Arresting Officer
On Attendance Notice
s. 497
Release By
Officer-in-Charge
On a Promise to Appear
Undertaking or Recognizance
s. 498
Release By
a Judge or Justice
on a PTA, Undertaking or Recog.

s. 515
Direct to Attend
for Fingerprints, etc.
Identification of Criminals Act

s. 2 ID Crim. Act
s. 320.18 OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

When charged under s. 320.18 , the accused can be given an attendance notice without arrest under s. 496 or a summons. If arrested, he can be released by the arresting officer under s. 497 on an attendance notice or by an officer-in-charge under s. 498 on a promise to appear or recognizance. He can also be released by a justice under s. 515.

Reverse Onus Bail

If police decide to bring the accused before a Justice pursuant to s. 503, there will be a presumption against bail (i.e. a reverse onus) if the offence, prosecuted by indictment, was committed:

  • while at large under s. 515 [bail release], 679 or 680 [release pending appeal or review of appeal] (s. 515(6)(a)(i));
  • "for the benefit of, at the direction of, or in association" with a criminal organization (s. 515(6)(a)(ii));
  • where the offence involved a firearm, cross-bow, prohibited weapon restricted weapon, prohibited device, ammunition, prohibited ammunition or explosive substance, while the accused was subject to a prohibition order preventing possession of these items (s. 515(6)(a)(viii)); or
  • where the accused is not "ordinarily a resident in Canada" (s. 515(6)(b)).
Fingeprints and Photos

A peace officer who charges a person under s. 320.18 of the Code can require that person to attend for the taking of fingerprints, photographs or other similar recordings that are used to identify them under the Identification of Criminals Act.

Publication Bans

For all criminal or regulatory prosecutions, there is a discretionary general publication ban available on application of the Crown, victim or witness to prohibit the publishing of "any information that could identify the victim or witness" under s. 486.5(1) where it is "necessary" for the "proper administration of justice". Other available publication bans include prohibitions for publishing evidence or other information arising from a bail hearing (s. 517), preliminary inquiry (s. 539) or jury trial (s. 648). There is a mandatory publication ban in all youth prosecutions on information tending to identify young accused under s. 110 of the YCJA or young victims under s. 111 of the YCJA.

Offence Designations
Offence(s) Wiretap
Eligible

s. 183
Dangerous Offender
Designated Offence

s. 752
Serious Personal
Injury Offence

s. 752
AG Consent Required
s. 320.18 X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png X Mark Symbol.png

See below in Ancillary Sentencing Orders for details on designations relating to sentencing orders.

Offence Wording

Operation while prohibited

320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so

(a) by an order made under this Act; or
(b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730.
Exception

(2) No person commits an offence under subsection (1) arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program.

2018, c. 21, s. 15.


CCC

320.19...

Punishment — dangerous operation and other offences

(5) Everyone who commits an offence under subsection 320.13(1) [dangerous operation] or 320.16(1) [Failure to stop after accident], section 320.17 [Flight from peace officer] or subsection 320.18(1) ['Operation while prohibited] is liable

(a) on conviction on indictment, to imprisonment for a term of not more than 10 years; or
(b) on summary conviction, to imprisonment for a term of not more than two years less a day.

2018, c. 21, s. 15.


CCC

Proof of the Offence

Proving driving while prohibited under s. 320.18 should include:

  1. identity of accused as culprit
  2. date and time of incident
  3. jurisdiction (incl. region and province)
  4. the culprit operated a vehicle
  5. that the vehicle was a "motor vehicle"
  6. operation occurred on a "street, road, highway or other public place"
  7. the culprit's licence was suspended by a court order at the time (use certificate of suspension)
  8. time and date of the prohibition
  9. that a copy of the order was given to the culprit (or mailed to him)
  10. that the order was read to the culprit
  11. the culprit was not registered in the alcohol ignition interlock device program, or was not in compliance with the conditions of the program

Interpretation of the Offence

Once the Crown makes out the essential elements of the case, the accused should be convicted unless there is evidence showing a lack of knowledge of the suspension.[1]

There has been mixed views on whether the prosecution must prove that the accused was not registered in the provincial interlock program.[2]

The Criminal Code cannot impose criminal penalties for breaches of provincial disqualification or prohibition from driving. The penalty must arise from a criminal offence.[3]

One of the essential elements of the offence includes proof that the acute was not "registered in an alcohol ignition interlock device program" or if registered, was not in compliance with the conditions of the program.[4]

  1. R v Gale, [1995] AJ No 295(*no CanLII links)
    R v Lock, 1974 CanLII 517 (ON CA), [1974] OJ No 1938 (ONCA), per Martin JA
  2. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J (acquitted)
    R v Whatmore, 2011 ABPC 320 (CanLII), per Rosborough J (convicted)
    R v Johnston, 2011 MBPC 64, per Carlson J (convicted)
  3. R v Boggs, 1981 CanLII 39 (SCC), [1981] 1 SCR 49, per Estey J
  4. R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J

Available Defences

Participation of Third Parties

See also: Role of the Victim and Third Parties and Testimonial Aids for Young, Disabled or Vulnerable Witnesses
Testimonial Aids

Certain persons who testify are entitled to make application for the use of testimonial aids: Exclusion of Public (s. 486), Use of a Testimonial Screen (s. 486), Access to Support Person While Testifying (s. 486.1), Close Proximity Video-link Testimony (s. 486.2), Self-Represented Cross-Examination Prohibition Order (s. 486.3), and Witness Security Order (s. 486.7).

A witness, victim or complainant may also request publication bans (s. 486.4, 486.5) and/or a Witness Identity Non-disclosure Order (s. 486.31). See also, Publication Bans, above.

On Finding of Guilt

Under s. 738, a judge must inquire from the Crown before sentencing whether "reasonable steps have been taken to provide the victims with an opportunity to indicate whether they are seeking restitution for their losses and damages".

Under s. 722(2), the judge must inquire "[a]s soon as feasible" before sentencing with the Crown "if reasonable steps have been taken to provide the victim with an opportunity to prepare" a victim impact statement. This will include any person "who has suffered, or is alleged to have suffered, physical or emotional harm, property damage or economic loss" as a result of the offence. Individuals representing a community impacted by the crime may file a statement under s. 722.2.

Sentencing Principles and Ranges

See also: Purpose and Principles of Sentencing, Sentencing Factors Relating to the Offender, and Sentencing Factors Relating to the Offence
Maximum Penalties
Offence(s) Crown
Election
Maximum Penalty
s. 320.18 [driving while prohibited] Summary Election 2 years less a day
s. 320.18 [driving while prohibited] Indictable Election 10 years custody

Offences under s. 320.18 are hybrid. If prosecuted by indictment, the maximum penalty is 10 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day.

Minimum Penalties

These offences have no mandatory minimum penalties.

Available Dispositions
Offence(s) Crown
Election
Discharge
s. 730
Suspended
Sentence

s. 731(1)(a)
Stand-alone
Fine

s. 731(1)(b)
Custody
s. 718.3, 787
Custody and
Probation
s. 731(1)(b)
Custody and
Fine
s. 734
Conditional
Sentence
(CSO)
s. 742.1
s. 320.18 [driving while prohibited] any OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png OK Symbol.png

All dispositions are available.The judge may order a discharge (s. 730), suspended sentence (s. 731(1)(a)), fine (s. 731(1)(b)), custody (s. 718.3, 787), custody with probation (s. 731(1)(b)), custody with a fine (s. 734), or a conditional sentence (s. 742.1).

Consecutive Sentences

There are no statutory requirements that the sentences be consecutive.

Principles

Drivers who "continuously ignore driving prohibitions imposed in the context of drinking and driving offences must be deterred by the imposition of a significant custodial term."[1] In these cases the focus is on denunciation and deterrence.[2]

  1. R v Bighead, 2013 SKCA 63 (CanLII), per Herauf JA, at para http://canlii.ca/t/fz79z
  2. Bighead, ibid., at para http://canlii.ca/t/fz79z

Factors

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under any of sections 320.13 to 320.18 [all conveyance offences] shall consider, in addition to any other aggravating circumstances, the following:

(a) the commission of the offence resulted in bodily harm to, or the death of, more than one person;
(b) the offender was operating a motor vehicle in a race with at least one other motor vehicle or in a contest of speed, on a street, road or highway or in another public place;
(c) a person under the age of 16 years was a passenger in the conveyance operated by the offender;
(d) the offender was being remunerated for operating the conveyance;
(e) the offender’s blood alcohol concentration at the time of committing the offence was equal to or exceeded 120 mg of alcohol in 100 mL of blood;
(f) the offender was operating a large motor vehicle; and
(g) the offender was not permitted, under a federal or provincial Act, to operate the conveyance.

2018, c. 21, s. 15.


CCC

Ranges

see also: Driving While Prohibited (Sentencing Cases)

Ancillary Sentencing Orders

See also: Ancillary Orders
Offence-specific Orders
Order Conviction Description
DNA Orders s. 320.18
Driving Prohibition - Min. 1 year (1st time), 2 years (2nd time), 3 years (3rd time)
Forfeiture of Vehicle
General Sentencing Orders
Order Conviction Description
Non-communication order while offender in custody (s. 743.21) any The judge has the discretion to order that the offender be prohibited "from communicating...with any victim, witness or other person" while in custody except where the judge "considers [it] necessary" to communicate with them.
Restitution Orders (s. 738) any A discretionary Order is available for things such as the replacement value of the property; the pecuniary damages incurred from harm, expenses fleeing a domestic partner; or certain expenses arising from the commission of an offence under s.402.2 or 403.
Victim Fine Surcharge (s. 737) any A discretionary surcharge under s. 737 of 30% of any fine order imposed, $100 per summary conviction or $200 per indictable conviction. If the offence occurs on or after October 23, 2013, the order has smaller minimum amounts (15%, $50, or $100).
General Forfeiture Orders
Forfeiture Conviction Description
Forfeiture of Proceeds of Crime (s. 462.37(1) or (2.01)) any Where there is a finding of guilt for an indictable offence under the Code or the CDSA in which property is "proceeds of crime" and offence was "committed in relation to that property", the property shall be forfeited to Her Majesty the Queen on application of the Crown.
Fine in Lieu of Forfeiture (s. 462.37(3)) any Where a Court is satisfied an order for the forfeiture of proceeds of crime under s. 462.37(1) or (2.01) can be made, but that property cannot be "made subject to an order", then the Court "may" order a fine in "an amount equal to the value of the property". Failure to pay the fine will result in a default judgement imposing a period of incarceration.
Forfeiture of Weapons or Firearms (s. 491) any Where there is finding of guilt for an offence where a "weapon, an imitation firearm, a prohibited device, any ammunition, any prohibited ammunition or an explosive substance was used in the commission of [the] offence and that thing has been seized and detained", or "that a person has committed an offence that involves, or the subject-matter of which is, a firearm, a cross-bow, a prohibited weapon, a restricted weapon, a prohibited device, ammunition, prohibited ammunition or an explosive substance has been seized and detained, that the item be an enumerated weapon or related item be connected to the offence", then there will be a mandatory forfeiture order. However, under s. 491(2), if the lawful owner "was not a party to the offence" and the judge has "no reasonable grounds to believe that the thing would or might be used in the commission of an offence", then it should be returned to the lawful owner.
Forfeiture of Offence-related Property (s. 490.1) any Where there is a finding of guilt for an indictable offence, "any property is offence-related property" where (a) by means or in respect of which an indictable offence under this Act or the Corruption of Foreign Public Officials Act is committed, (b) that is used in any manner in connection with the commission of such an offence, or (c) that is intended to be used for committing such an offence". Such property is to be forfeited to Her Majesty in right of the province.
==Record Suspensions and Pardons== 

Convictions under s. 320.18 [driving while prohibited] are eligible for record suspensions pursuant to s. 3 and 4 of the Criminal Records Act after 5 years for summary conviction offences and 10 years for all other offences.

History

See also: List of Criminal Code Amendments

See Also

References