Driving While Prohibited (Offence)
| Driving While Disqualified | |
|---|---|
| s. 259 of the Crim. Code | |
| Election / Plea | |
| Crown Election | Hybrid summary proceedings must initiate within 12 months of the offence (786(2)) |
| Jurisdiction | Prov. Court Sup. Court w/ Jury (*) |
| Summary Dispositions | |
| Avail. Disp. | Discharge (730) Suspended Sentence (731(1)(a)) |
| Minimum | None |
| Maximum | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| Indictable Dispositions | |
| Avail. Disp. | same as summary |
| Minimum | None |
| Maximum | 5 years incarceration |
| Reference | |
| Offence Elements Sentence Digests | |
Overview
Offences relating to driving while disqualified are found in Part VIII of the Criminal Code concerning "Offences Against the Person and Reputation".
Pleadings
| Offence Section |
Offence Type |
Crown Election | Defence Election s. 536(2) |
|---|
Offences under s. 259 are hybrid with a Crown election. If prosecuted by indictment, there is a Defence election of Court under s. 536(2).
Release
| Offence(s) | Appearance Notice by Peace Officer s. 497 |
Summons by Judge or Justice s. 508(1), 512(1), or 788 |
Release by Peace Officer on Undertaking s. 498, 499, and 501 |
Release By a Judge or Justice on a Release Order s. 515 to 519 |
Direct to Attend for Fingerprints, etc. Identification of Criminals Act s. 2 ID Crim. Act |
|---|---|---|---|---|---|
| s. 259 | Template:ReleaseProfileAll |
When charged under s. 259, the accused can be given an appearance notice without arrest under s. 497 or a summons. If arrested, he can be released by the arresting officer under s. 498 or 499 on an undertaking with or without conditions. He can also be released by a justice under s. 515.
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 weapon, being 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)).
And, regardless of Crown election, if the offence alleged was one:
- where the offence was an allegation of violence against an "intimate partner" and the accused had been previously convicted of an offence of violence against an "intimate partner" (s. 515(6)(b.1));
- where the offence alleged is a breach under s. 145(2) to (5) while (s. 515(6)(c));
- where the offence committed (or conspired to commit) was an offence under s. 5 to 7 of the CDSA that is punishable by life imprisonment (s. 515(6)(d));
A peace officer who charges a person under s. 259 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 | Serious Criminality Offence s. 36 IRPA |
|---|---|---|---|---|---|
| s. 259 |  |
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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.
- Punishment — dangerous operation and other offences
(5) Everyone who commits an offence under subsection 320.13(1) or 320.16(1), section 320.17 or subsection 320.18(1) 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.
Proof of the Offence
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Proving driving while disqualified under s. 259(4) should include:
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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]
- ↑ R v Gale, [1995] A.J. No. 295(*no CanLII links)
R v Lock, 1974 CanLII 517 (ON CA), [1974] O.J. No. 1938 (ONCA), per Martin JA - ↑
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) - ↑ R v Boggs, 1981 CanLII 39 (SCC), [1981] 1 SCR 49, per Estey J
- ↑ R v Liptak, 2009 ABPC 342 (CanLII), per Fradsham J
Available Defences
Participation of Third Parties
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
Maximum Penalties
| Offence(s) | Crown Election |
Maximum Penalty |
|---|---|---|
| s. 259 [driving while disqualified] | Summary Election | 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019) |
| s. 259 [driving while disqualified] | Indictable Election | 5 years custody |
Offences under s. 259(4) are hybrid. If prosecuted by indictment, the maximum penalty is 5 years incarceration. If prosecuted by summary conviction, the maximum penalty is 2 years less a day jail and/or a $5,000 fine (from Sept 19, 2019).
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. 259(4) | any |  |
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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]
- ↑ R v Bighead, 2013 SKCA 63 (CanLII), per Herauf JA at para 6
- ↑ Bighead, ibid. at para 6
Ranges
Ancillary Sentencing Orders
Offence-specific Orders
| Order | Conviction | Description |
|---|---|---|
| DNA Orders | s. 259(4) |
|
| 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 His Majesty the King on application of the Crown. NB: does not apply to summary offences. |
| 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. NB: does not apply to summary offences. |
History
See Also
References