Driving While Prohibited

Driving while prohibited is a criminal offence under s. 320.18(1) the Criminal Code of Canada. There is also a similar offence under s. 53 of the Highway Traffic Act, which is Driving While Suspended. The potential penalties vary significantly depending on which legislation you are charged under, and there can be several collateral consequences to a finding of guilt. Prior to 2018, the Criminal Code offence of Driving While Prohibited was classified under s. 259 as “Driving While Disqualified.” However, despite the change in wording, the offence is essentially the same.

What is Driving While Prohibited?

The offence of Driving While Prohibited is committed when a person who has been prohibited from driving at the relevant time is found to have operated a motor vehicle. 

A person can be prohibited from driving for various reasons:

• Their licence was suspended as a result of a conviction for an offence under the Criminal Code, such as:
• Failing to stop for police;
• Failing to remain at the scene of a collision;
• Dangerous Driving;
• Impaired Driving;
• Driving Over 80; and
• Refusing to Give a Breath Test
• Their licence was suspended as a result of a conviction for an offence under the Highway Traffic Act, such as Stunt driving or Careless driving.
• Their licence was suspended immediately either at the roadside or at the police station as a result of:
• having a blood alcohol level that is more than 80 milligrams in 100 millilitres of blood;
• having a blood alcohol concentration in the “warn range” of .05 to .08;
• failing or refusing to provide a breath, blood, oral fluid, or urine sample when asked by police; or
• failing or refusing to perform a physical coordination test or submit to a drug evaluation when requested by police.
• By breaching the graduated licencing rules for “Novice” drivers (someone with a G1 or G2 licence). For example, a Novice driver can receive a 30-day suspension for speeding more than 29km over the speed limit.
• By failing to properly insure your vehicle.
• By accumulating too many demerit points on your driving record.
• By failing to pay a traffic fine that has been ordered by a court.
• As a result of a medical condition that affects your ability to drive safely.
• As a result of failing a driver’s re-examination test.
• By failing to pay the reinstatement fee following a licence suspension.
• If you surrendered your driver’s licence to the Ministry of Transportation.

Possible Penalties if Convicted of Driving While Prohibited

Section 320.18(1) of the Criminal Code is a hybrid offence, meaning the Crown can elect to proceed by summary conviction or by indictment. The potential penalties are as follows:

• If the Crown proceeds by summary conviction: the maximum punishment is a fine of not more than $5000 or a term of imprisonment of not more than two years less a day, or both.
• If the Crown proceeds by indictment: the maximum punishment is ten years imprisonment.

If convicted under s. 53 of Highway Traffic Act – meaning you were found guilty of driving a motor vehicle while your driver’s licence was suspended – the penalties are as follows:

• For a first offence: a fine of not less than $1000, but not more than $5000
• For each subsequent offence: a fine of not less than $2000, but not more than $5000;
• OR to a term of imprisonment of not more than six months;
• OR to both a term of imprisonment AND a fine (the minimum fine varying based on whether it is a first or subsequent offence)

Defences Available for a Charge of Driving While Prohibited

As in every case, the defences that may be available to you depend on the specific facts of your case.

The following list includes defences that may be available in a drive while prohibited case:

• Interlock Exception: Under s. 320.18(2), a person cannot be guilty of driving while prohibited if they did so while being registered in an alcohol ignition interlock device program that is approved under provincial law, and they comply with the conditions of the program.
• Factual Innocence: If the Crown is unable to prove the following elements beyond a reasonable doubt, they will have failed to discharge their burden:
  • the identity of the offender;
  • the date and time of the incident and jurisdiction;
  • that the accused was, in fact, driving;
  • that the vehicle operated was a “motor vehicle” as defined in the Criminal Code;
  • that the operation occurred on a “street, road, highway or other public place” as defined in the Criminal Code;
  • that the accused’s licence was suspended by a court order at the time;
  • that a copy of the court order was given to the accused
• Necessity: The defence of necessity may be invoked in emergency-type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada set out the three factors that must be present for the defence of necessity to succeed in a case:
  • The accused must be in a situation of imminent peril or danger;
  • The accused must have had no reasonable legal alternative to breaking the law; and
  • The harm inflicted by the accused must be proportional to the harm avoided by the accused.

• Violation of Charter Rights: Under the Canadian Charter of Rights and Freedoms, individuals are afforded specific rights, including:
  • the right against unreasonable search and seizure;
  • the right to not be arbitrarily detained;
  • the right to be informed promptly of the reasons for arrest;
  • the right to retain and instruct counsel without delay; and
  • the right to be tried within a reasonable time.

A successful Charter challenge may also result in a stay of proceedings or evidence from your case being excluded.

Alternative Outcomes

In some instances, it is possible that your charge(s) may be resolved without going to trial or pleading guilty. The availability of these alternative outcomes depends on a number of factors; each case is fact-specific. The following is a list of examples of alternative outcomes in a criminal case:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:
  • The Crown does not believe they have a reasonable prospect of conviction at trial, due to various reasons; or
  • It is not in the public interest to prosecute.
• Stay of Proceedings: A stay of proceedings effectively stops a legal proceeding in its tracks, and is a rarely granted remedy. The difference between a stay of proceedings and a withdrawal is that, with a stay of proceedings, the Crown may decide to continue the proceedings at a later date.
• Diversion: Diversion (often referred to as “Direct Accountability” or “DAP”) is an alternative way of resolving charges in the criminal justice system, and provides offenders with an opportunity to take accountability for their actions without incurring a criminal record. Diversion is usually reserved for minor offences and first-time offenders. To successfully complete a diversion program involves some form of upfront work by the defendant, including but not limited to:
  • A written apology letter;
  • Charitable donation(s);
  • Community service/volunteer hours;
  • Counselling and/or programming; and
  • Restitution/compensation.

Next Steps

The information above provides a general overview of the offence of Driving While Prohibited, as well as potential penalties and defences. However, no two cases are alike. Every criminal case is fact-specific and ranges in complexity, depending on the issues at play.

Were you charged with Driving While Prohibited? Contact our office today at 416-924-5969 to learn more about how we can help you. Our team of lawyers is prepared to conduct a thorough review of your situation and develop an approach tailored to your needs. Obtaining proper legal representation is the first step in preparing a successful defence.