Driving Prohibition Orders (Prior to December 2018)
| This page was last substantively updated or reviewed January 2019. (Rev. # 92516) |
Introduction
A person convicted of a motor vehicle offence will be subject to a mandatory driving prohibition under s. 259. The duration will be determined by a number of factors including the seriousness of the offence and the existence of any prior convictions.
The minimum prohibition duration is determined by the number of prior offences. Where there are prior convictions, the Crown must give notice in compliance with s. 727 in order to engage the increased penalty.[1]
- Mandatory order of prohibition
259 (1) When an offender is convicted of an offence committed under section 253 [operation while impaired] or 254 [taking samples of breath/blood] or this section or discharged under section 730 of an offence committed under section 253 [operation while impaired] and, at the time the offence was committed or, in the case of an offence committed under section 254 [taking samples of breath/blood], within the three hours preceding that time, was operating or had the care or control of a motor vehicle, vessel or aircraft or of railway equipment or was assisting in the operation of an aircraft or of railway equipment, the court that sentences the offender shall, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating a motor vehicle on any street, road, highway or other public place, or from operating a vessel or an aircraft or railway equipment, as the case may be,
- (a) for a first offence, during a period of not more than three years plus any period to which the offender is sentenced to imprisonment, and not less than one year;
- (b) for a second offence, during a period of not more than five years plus any period to which the offender is sentenced to imprisonment, and not less than two years; and
- (c) for each subsequent offence, during a period of not less than three years plus any period to which the offender is sentenced to imprisonment.
[omitted (1.01), (1.1), (1.2), (1.3) and (1.4), (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.
[annotation(s) added]
The phrase "or other public place" is found under section 259 (1) refers to a place "upon which motor vehicles can be driven ... to which a significant segment of the public has access as of right and where it can be reasonably anticipated that the motor vehicle Will come into close proximity to pedestrians or other motor vehicles."[2]
- ↑ See Notice of Increased Penalty for details
- ↑ R v Maxwell, 2011 NWTTC 4 (CanLII), per Gorin J
Street, Road, Highway or Other Public Place
Duration
Section 259 requires a mandatory minimum Order of prohibition from driving for offences under s.253, 254 or 259. The length is as follows:
- First offence: 1 to 3 years (s.259(1)(a))
- Second offence: 2 to 5 years (s. 259(1)(b))
- All subsequent offences: 3 years or more (s. 259(1)(c))
Interlock program is available after:
- First offence: 3 months from sentence (s.259(1.2)(a)(i))
- Second offence: 6 months from sentence (s.259(1.2)(a)(ii))
- All subsequent offences: 12 months from sentence (s.259(1.2)(a)(iii))
- Or any later time as set by the judge (s.259(1.2)(b))
Section 259(2) allows a discretionary order of prohibition from driving for offences under s. 220, 221, 236, 249, 249.1, 250, 251 or 252 or 255(2) to (3.2). The length is as follows:
- Offences with max of life sentence or actual life sentence: any duration (s. 259(2)(a), (a1))
- Offences with max of 10 years: up to 5 years (s.259(2)(b))
- Any other offences: up to 3 years (s. 259(2)(c))
Street racing mandatory prohibitions in addition to other mandatory orders:
- First offence: 1 to 3 years (s. 259(3.1)(a))
- Second offence: 2 to 5 years (s. 259(3.1)(b))
- Any subsequent offences: 3 years or more (s. 259(3.1)(c))
Bodily harm offences under s. 249.3 or 249.4(3), the mandatory orders are as follows:
- First Offence: 1 to 10 years
- Second Offence: 2 to 10 years
- Any subsequent offences: 3 years or more
Death offences under s. 249.2 or 249.4(4), the mandatory orders are as follows:
- s.249.2 Offences: 1 year or more
- s. 249.4(4) offences: 1 to 10 years
- Any second conviction is life (s. 259(3.4))
The breath readings can be used to permit a greater duration. Section 255.1 treats readings over 160mg/ml as "aggravating circumstances" which can translate to a greater duration.[1]
- Calculating Duration
The period of prohibition is the aggregate of the duration of the term of imprisonment and the period of prohibition ordered by the court.[2]
When determining duration the Court may consider and subtract periods of driving prohibition that were imposed through release conditions.[3]
- Procedure
When making an order for a driving prohibition, the sentencing court should spell out the duration of the prohibition as an aggregate of the duration of the term of custody and the duration of the post-custody prohibition.[4]
- ↑ e.g. R v Pavlovsky, 2013 ONSC 6800 (CanLII), 58 MVR (6th) 75, per Campbell J, at paras 28 to 31
- ↑
R v Bansal, 2017 BCCA 93 (CanLII), per Frankel JA (3:0), at para 40
- ↑
R v Lacasse, 2015 SCC 64 (CanLII), [2015] 3 SCR 1089, per Wagner J, at paras 111 to 114
- ↑ Bansal, supra
Consecutive vs Concurrent
On Oct 1, 2008, s. 259(2.1) was added permitting discretionary orders for consecutive driving prohibitions:
259
[omitted (1), (1.01), (1.1), (1.2), (1.3) and (1.4) and (2)]
- Consecutive prohibition periods
(2.1) The court may, when it makes an order under this section prohibiting the operation of a motor vehicle, a vessel, an aircraft or railway equipment, as the case may be, order that the time served under that order be served consecutively to the time served under any other order made under this section that prohibits the operation of the same means of transport and that is in force.
[omitted (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.
Prior to Oct 1, 2008, a driving prohibition cannot be ordered to be consecutive to another driving prohibition that is already in force. The prohibition must begin at the day the order is made.[1] Any offence that occurs prior to Oct 1, 2008, must have concurrent driving prohibitions.[2]
- ↑ R v Neuberger, 1997 CanLII 2443 (BC CA), 118 CCC 348, per Braidwood JA
- ↑ Neuberger, ibid.
Alcohol Interlock Program
259
[omitted (1) and (1.01)]
- Alcohol ignition interlock device program
(1.1) If the offender is registered in an alcohol ignition interlock device program established under the law of the province in which the offender resides and complies with the conditions of the program, the offender may, subject to subsection (1.2) , operate a motor vehicle equipped with an alcohol ignition interlock device during the prohibition period, unless the court orders otherwise.
- Minimum absolute prohibition period
(1.2) An offender who is registered in a program referred to in subsection (1.1) may not operate a motor vehicle equipped with an alcohol ignition interlock device until
- (a) the expiry of a period of
- (i) for a first offence, 3 months after the day on which sentence is imposed,
- (ii) for a second offence, 6 months after the day on which sentence is imposed, and
- (iii) for each subsequent offence, 12 months after the day on which sentence is imposed; or
- (b) the expiry of any period that may be fixed by order of the court that is greater than a period referred to in paragraph (a).
[omitted (1.3) and (1.4) and (2), (2.1), (3), (3.1), (3.2), (3.3), (3.4), (4) and (5)]
R.S., 1985, c. C-46, s. 259; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F), c. 32 (4th Supp.), s. 62; 1995, c. 22, ss. 10, 18; 1997, c. 18, s. 11; 1999, c. 32, s. 5(Preamble); 2000, c. 2, s. 2; 2001, c. 37, s. 1; 2006, c. 14, s. 3; 2008, c. 6, s. 26, c. 18, s. 8.
[annotation(s) added]
Consequences of Driving Prohibition Order
- Proceedings on making of prohibition order
260 (1) If a court makes a prohibition order under section 259 in relation to an offender, it shall cause
- (a) the order to be read by or to the offender;
- (b) a copy of the order to be given to the offender; and
- (c) the offender to be informed of subsection 259(4) .
- Endorsement by offender
(2) After subsection (1) has been complied with in relation to an offender who is bound by an order referred to in that subsection, the offender shall endorse the order, acknowledging receipt of a copy thereof and that the order has been explained to him.
- Validity of order not affected
(3) The failure of an offender to endorse an order pursuant to subsection (2) does not affect the validity of the order.
- Onus
(4) In the absence of evidence to the contrary, where it is proved that a disqualification referred to in paragraph 259(5)(b) has been imposed on a person and that notice of the disqualification has been mailed by registered or certified mail to that person, that person shall, after five days following the mailing of the notice, be deemed to have received the notice and to have knowledge of the disqualification, of the date of its commencement and of its duration.
- Certificate admissible in evidence
(5) In proceedings under section 259 [driving prohibition orders], a certificate setting out with reasonable particularity that a person is disqualified from
- (a) driving a motor vehicle in a province, purporting to be signed by the registrar of motor vehicles for that province, or
- (b) operating a vessel or aircraft, purporting to be signed by the Minister of Transport or any person authorized by the Minister of Transport for that purpose
is evidence of the facts alleged therein without proof of the signature or official character of the person by whom it purports to be signed.
- Notice to accused
(6) Subsection (5) does not apply in any proceedings unless at least seven days notice in writing is given to the accused that it is intended to tender the certificate in evidence.
- Definition of registrar of motor vehicles
(7) In subsection (5) , registrar of motor vehicles includes the deputy of that registrar and any other person or body, by whatever name or title designated, that from time to time performs the duties of superintending the registration of motor vehicles in the province.
R.S., 1985, c. C-46, s. 260; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 2006, c. 14, s. 4.
[annotation(s) added]
Stay of Driving Prohibition Order While on Appeal
- Stay of order pending appeal
261 (1) Subject to subsection (1.1), if an appeal is taken against a conviction or discharge under section 730 for an offence committed under any of sections 220 [criminal negligence causing death], 221 [criminal negligence causing bodily harm], 236 [manslaughter], 249 to 255 [motor vehicles, vessels and aircraft offences] and 259 [driving prohibition orders], a judge of the court being appealed to may direct that any prohibition order under section 259 arising out of the conviction or discharge shall, on any conditions that the judge or court imposes, be stayed pending the final disposition of the appeal or until otherwise ordered by that court.
- Appeals to Supreme Court of Canada
(1.1) In the case of an appeal to the Supreme Court of Canada, the direction referred to in subsection (1) may be made only by a judge of the court being appealed from and not by a judge of the Supreme Court of Canada.
- Effect of conditions
(2) If conditions are imposed under a direction made under subsection (1) or (1.1) that a prohibition order be stayed, the direction shall not operate to decrease the period of prohibition provided in the order.
R.S., 1985, c. C-46, s. 261; R.S., 1985, c. 27 (1st Supp.), s. 36, c. 1 (4th Supp.), s. 18(F); 1994, c. 44, ss. 15, 103; 1995, c. 22, s. 10; 1997, c. 18, ss. 12, 141; 2006, c. 14, s. 5; 2008, c. 6, s. 27.