Drive while Prohibited

DRIVE WHILE PROHIBITED also known as DRIVE UNDER PROHIBITION or OPERATION WHILE PROHIBITED is an offence under Section 320.18 (1) of the Criminal Code.

The offence occurs when you drive a motor vehicle when you are subject to a prohibition order. The only exception is where you are permitted to operate a motor vehicle within a registered alcohol ignition interlock device program established under the law of the province in which you reside and you comply with the conditions of the program.

CHARGED WITH DRIVING WHILE PROHIBITED?

If you think you or someone you love might be charged, see our section below entitled “Should I speak to the Police and Other Tips” and “What should I do when the Police Show Up” and call LAWYER UP immediately.

DRIVING WHILE PROHIBITED is a Criminal Offence with serious criminal penalties as it represents a breach of a Criminal Court Driving Prohibition.

DO I HAVE ANY DEFENCES TO A CHARGE OF DRIVE WHILE PROHIBITED?

There are defences to every criminal charge and defence strategies to win every case.  We will explain everything to you.  The legal requirements of the charge.  What penalties you could face.  After getting the facts, we will explain your possible defences.  You will know your rights and be able to decide with us on the best approach for your particular situation.

We never suggest that you plead guilty without knowing the full consequences of what you are facing and understanding all of your available defences.

Our goal is to obtain for you the best result without a criminal record for your charge of Operation While Prohibited and to minimize the impact upon you and help you save your licence.

Having a well thought out game plan is the key to your successful defence.  We do successful legal game plans.

Drive While Prohibited vs. Drive Under Suspension

Drive While Prohibited is a Criminal Charge under section 320.18 (1) of the Criminal Code.  Upon conviction it carries a Criminal Record, and Criminal Consequences.  Drive under Suspension is a Provincial Offences Charge under the Highway Traffic Act which carries fines and potential jail but no criminal record.

DRIVING WHILE PROHIBITED – is a breach of a Court Order issued by a Judge as part of a sentencing on a previous Criminal offence (such as a Dangerous Driving or Impaired / Over 80).

Drive while Prohibited is treated as very seriously due to the connection between the original charge and the Court Prohibition. Imprisonment is regularly sought for 1st offenders and for repeat offenders increased penalties apply.  In some cases the minimum jail time is 30 days.

Jail time can range from up to 2 years less a day  to 10 years and substantial fines of $1,000 to $5,000 on first offences and up to $10,000 on subsequent offences.  Vehicles can be impounded and stored for 45 days with the costs to be borne by the accused.

DRIVE UNDER SUSPENSION – is a charge under Section 53 of the Ontario Highway Traffic Actwhich is also serious, but does not result in a Criminal Record. In addition to extremely high insurance rates and the possibility of having your insurance company drop you as a client, and trouble finding work in the driving industry, the consequences are:

• for a first offence, to a fine of not less than $1,000 and not more than $5,000; and
• for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000, or to imprisonment for a term of not more than six months, or to both.

However, in cases where a driver’s licence was suspended under section 41 (for Criminal Convictions of either Criminal Negligence Causing Death, Criminal Negligence Causing Bodily Harm, or Manslaughter where these convictions result from the use of a motor vehicle, streetcar or motorized snow vehicle) or 42 (Drive While Prohibited/Disqualified), on conviction the person is liable

• for a first offence, to a fine of not less than $5,000 and not more than $25,000; and
• for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000, or to imprisonment for a term of not more than six months, or to both.

As a possible resolution, it would be preferable to have the matter resolved by way of a plea to a Highway Traffic Act charge of Drive Under Suspension where a Justice of the Peace sitting in Provincial Offences Court (hearing Highway Traffic Cases) is less likely to sentence an accused to jail, especially as a first offender. Jail is also limited to 6 months in Provincial Offences Court as opposed to the higher sentences in Criminal Court.

THINKING OF PLEADING GUILTY? THINK AGAIN!

Sometimes you think of pleading guilty just to get it over with. But think twice. If you do, you are:

• exposing yourself to criminal penalties including jail, fines and difficult probation terms,
• many severe consequences of conviction that you should be aware of that are discussed below.
• You may very well be pleading guilty when you have valid defences or a potentially successful defence strategy that could result in your charges being stayed or withdrawn.
• On your own you would not be able to advocate for the best resolution of your matter.

At Lawyer Up we are able to review all the details of the charge, your facts, background factors, get your version, and determine what available defences you have and lay out different defence strategies to you or resolution strategies to see you have the best possible outcome.

The Legal System is very complex and very adversarial. Only Experienced Defence Counsel will have your best interest at stake and be able to help you navigate this complex area of the legal system.  You cannot rely upon the Crown attorney to represent you.

When can I receive a driving Prohibition?

The Criminal Code provides numerous sentencing options where a Driving Prohibition is either mandated or discretionary after being convicted of specified Criminal offences. Some examples are:

• Dangerous Driving
• Impaired Driving, Drive Over 80 mg
• Refusal to provide Breath Sample
• Drugged Driving
• Flight from Peace Officer,
• Fail to Stop / Fail to Remain after Accident
• Any Convictions resulting in bodily harm or death involving a conveyance (i.e. a motor vehicle)
• Manslaughter as a result of use of a motor vehicle, street car or motorized snow vehicle;
• Accident Resulting in Death or Bodily Harm, Dangerous Driving, Impaired Driving

DRIVING PROHIBITIONS 101

The following are key points to know about driving prohibitions:

• All Prohibition Orders take effect on the day they are made. Therefore, it would be unwise to return to your car in the Court parking lot and attempt to drive it home.  It is very common for the police to be observing to see if you attempt to do this. You will then be charged with another Criminal Offence.
• The Court could order either no Driving Prohibition or a Driving Prohibition up to the Maximum number of years they are permitted by law plus any discretionary amounts that they are permitted to add. The courts can also impose in certain circumstances a lifetime ban on driving. The parameters are set out in the penalties section
  of each particular offence.
• If a person receives both a driving suspension and a Driving Prohibition, they will run concurrently.
• A prohibition order in respect of a motor vehicle applies only to its operation on a street, road or highway or in any other public place.
• The basis for the Driving Prohibition stems from the discretion granted to the Court pursuant to Section 320.24(4) of the Criminal Code. This section provides:
  • S. 320.24 (4)
    • Discretionary order of prohibition — other offences
    • (4) If an offender is found guilty of an offence under section 320.13,
      subsection 320.14(2) or (3), 320.15(2) or (3) or under any of sections 320.16 to 320.18, the
      court that sentences the offender may, in addition to any other punishment that may be imposed
      for that offence, make an order prohibiting the offender from operating the type of conveyance
      in question during a period to be determined in accordance with subsection (5).
• Prohibition periods are not mandatory in some cases. The Court can theoretically impose a Prohibition for as
  little as a single day but the minimum is likely to be in the 1 to 5 year range.
• In some cases, such as Impaired Driving, there is a mandatory Driving Prohibition.
• Subsection 320.24 (5) provides details on the driving prohibition periods:
  • (5) The prohibition period is
    • (a) if the offender is liable to imprisonment for life in respect of that
      offence, of any duration that the court considers appropriate, plus the entire period the
      offender is sentenced to imprisonment;
    • (b) if the offender is liable to imprisonment for more than five years but
      less than life in respect of that offence, not more than 10 years, plus the entire period to
      which the offender is sentenced to imprisonment; and
    • (c) in any other case, not more than three years, plus the entire period
      to which the offender is sentenced to imprisonment.

CRIMINAL CODE PROVISIONS – OFFENCE

The Criminal Code Provision for the offence reads as follows:
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.

SENTENCING FOR DRIVE WHILE PROHIBITED

The Criminal Code Provisions on Sentencing and Punishment for this offence are as follows.  This has been modified for simplicity.

• In essence the punishment is:
  • up to 2 years less a day in jail if the Crown proceeds by way of Summary Conviction, or
  • up to 10 years in jail if they proceed by Indictment.

When Might the Crown Proceed by Indictment?

The Crown would look at all the factors to determine when to proceed by Indictment which is far more serious.

• To be charged by Indictment, factors such as:
  • Whether the accused was also impaired;
  • If this was the accused’s second breach of a driving prohibition,
  • Whether there was an accident causing bodily harm or death,
  • If there were risks to the community at the time of the breach,
  • If there were other charges in connection with the Breach such as a flight from police, or Fail to Remain.
  • The Crown would also give some consideration to the list of aggravated circumstances below which a judge is obliged to consider on sentencing to grant more harsh sentences.
• The sections below have been modified for simplicity:

Punishment

(5) Every person who commits an offence under 320.18 (1) is guilty of

• (a) an indictable offence and liable to imprisonment for a term of not more than 10 years; or
• (b) an offence punishable on summary conviction.

Aggravating circumstances for sentencing purposes

320.22 A court imposing a sentence for an offence under s. 320.18 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.

Discretionary Order of Prohibition

320.24 (4) Discretionary order of prohibition — other offences

(4) If an offender is found guilty of an offence under s. 320.18, the court that sentences the offender may, in addition to any other punishment that may be imposed for that offence, make an order prohibiting the offender from operating the type of conveyance in question during a period to be determined in accordance with subsection (5).

320.24 (10) Minimum absolute prohibition period
(10) A person may not be registered in an alcohol ignition interlock device program referred to in subsection 320.18(2) until the expiry of

• (a) in the case of a first offence, a period, if any, that may be fixed by order of the court;
• (b) in the case of a second offence, a period of three months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court; and
• (c) in the case of a subsequent offence, a period of six months after the day on which the sentence is imposed or any longer period that may be fixed by order of the court.

PROBATION:DRIVE WHILE PROHIBITED

In addition to any sentence you receive, you will likely be put on Probation. Some Probation terms are listed below.

• PROBATION: It would be standard upon conviction to receive Probation with terms to keep the peace and be of good behaviour, appear before the court when required to do so by the court; and notify the court or the probation officer in advance of any change of name or address, and promptly notify the court or the probation officer of any change of employment or occupationand other typical terms such as report weekly to a probation officer.
• NO ALCOHOL or DRUGS PROBATION TERM: if drugs or alcohol were a factor in your crime, you would be ordered to abstain from the consumption of drugs except in accordance with a medical prescription, of alcohol or of any other intoxicating substance; AND, if the offender agrees, and subject to the program director’s acceptance of the offender, participate actively in a treatment program approved by the province.
• NO WEAPON PROBATION TERM: if the court is concerned about potential for violence they may order you to abstain from owning, possessing or carrying a weapon.
• RESTITUTION PROBATION TERM:order to make Restitution if there was any financial loss. The Court would consider such factors as the availability of insurance to the victim, and your financial situation.
• COMMUNITY SERVICE PROBATION TERM: you could be ordered to perform up to 240 hours of community service over a period not exceeding eighteen months.
• OTHER REASONABLE PROBATION TERMS: the court has a wide discretion to impose any other reasonable terms of probation on you.

OTHER CONSEQUENCES OF CONVICTION

Potential consequences of a conviction include:

• CIVIL LAWSUITS – you may be sued.
• EMPLOYMENT CONSEQUENCES – many employers require that you be bondable, have good driving records, and be of good character. Having a criminal record would make it difficult to work in many industries. You may have ongoing security or criminal checks in your current employment that may result in loss of your employment . Even for Driving records, you could be dropped from your employment if you are convicted of a substantial charge as it would increase their fleet insurance.
• EDUCATIONAL RESTRICTIONS – Many Colleges and Universities do not admit persons with certain Criminal Records.
• IMMIGRATION CONSEQUENCES – A conviction could seriously jeopardise your ability to remain in Canada if you are not a citizen and removal / deportation proceedings would likely be commenced.
• RISK OF BREAK OF PROBATION – if you are charged with another Criminal offence or BREACHING your PROBATION TERMS, you will likely face another Criminal Offence of Breach of Probation.
• CRIMINAL RECORD – It is a stigma publicly and personally or you could treat it as an opportunity to learn from a mistake.
• EXPENSE OF APPLYING FOR A PARDON – you will have to incur the expense of applying for a Pardon many years down the road.
• TRAVEL RESTRICTIONS – Having a Criminal Conviction will create difficulty for future travel abroad alone or with your family, especially the United States and the U.K.
• PROPERTY DAMAGE DENIED – Your own vehicle damage claim denied if you are involved in an accident.
• INSURANCE INCREASES – Rate increases for 3 years – likely 100% increase. In the most severe of cases, your policy may be cancelled.
• DNA ORDER – The Crown has discretion to seek a DNA order.
• LICENCE REINSTATEMENT FEES – When your prohibition ends you will have to take steps to reinstate your licence by paying all outstanding fines and court victim surcharges and any costs for any government-mandated programs. There is a mandatory fee to the Ministry of Transportation to reinstate your licence. After payment, you will have to wait until you receive confirmation to drive.

WHEN YOUR PROHIBITION ENDS

When your prohibition ends you cannot drive automatically. We will help guide you to take the necessary steps to reinstate your licence. You will need to pay all outstanding fines and court victim surcharges and any costs for any government-mandated programs.

There is a mandatory fee to the Ministry of Transportation to reinstate your licence. After all payments are made, you will have to wait until you receive confirmation from the Ministry to drive.

FIRST TIME DRIVE WHILE PROHIBITED

• The Justice System is more lenient on 1st time offenders because they understand that people make poor choices. The Court will be more lenient towards 1st Offenders than repeat offenders.

• If you are a 1st time offender, we can explain to you a number of options that we can pursue to have you pass through the Criminal System and possibly have:
  • Charges Withdrawn – No Criminal Record
  • Charges Stayed
  • Diversion – No Criminal Record
  • Absolute or Conditional Discharge – No Criminal Record
  • Conditional Sentence – House Arrest – keep your job – no jail
  • Plea Deal with Plea in Provincial Offences Court to Drive Under Suspension – no criminal record

UNDERLYING ISSUES TO DRIVE WHILE PROHIBITED

Your charge may have been motivated or caused by many different factors.

We dig deep to try to find the underlying causes or explanations that can lessen any impact upon you in the case and assist in having the charges either WITHDRAWN, DIVERTED, or have you receive an ABSOLUTE OR CONDITIONAL DISCHARGE WITH NO CRIMINAL RECORD.

If you are convicted and sentenced we seek to help you avoid incarceration by pleading for a Conditional Sentence allowing you to serve your sentence under “HOUSE ARREST” where you can continue to attend work.

Some Underlying issues of these offences are:

• FINANCIALLY DRIVEN CRIME – In some cases the commission of the offence is deliberate, and well-planned and/or part of an organized crime operation for financial benefit either of the individual or a group of individuals working together.
• SUBSTANCE ABUSE DRIVEN – Sometimes commission of the offence is the result of a need to fund an addiction to substances.
• COMPULSION – sometimes this offence is the result of a compulsion.
• MENTAL HEALTH DRIVEN – In other cases a mental health component is driving the behaviour. The accused may be totally unaware of this and feel out of control. Anxiety, Depression and other mental health conditions can contribute to the commission of the offence.
• INTELLECTUAL DISABILITY – Occasionally an accused will have an intellectual disability as a result of an organic or acquired brain injury or birth issue. This can lower the capacity to understand the nature of their actions and appreciate their potential criminal consequences.
• OUT OF CHARACTER BEHAVIOUR – these are one-time events in a person’ life, brought upon by a multitude of factors that create a perfect storm for a person to commit certain offences. It is very, very common for a responsibly employed person with a family, a steady job, and no prior criminal record, facing a serious personal or family health issue to commit a crime.
• MEDICAL INCIDENT CASES – in some cases a person will have a medical condition and carry out the actions of a crime while their mind is not clear.

HOW WE CAN RESOLVE MATTERS FOR YOU

The Crown and the Courts look at imposing Jail, Fines, Strict Probation Terms and Criminal Records as a way of dealing with convictions.  However, they are not the best outcome for the accused.

We will help to balance the Court’s and Crown’s objectives in sentencing so that there is less emphasis on punishment and more on assisting an offender to rehabilitate. The factors the Court have to balance to consider when sentencing is:

• (i) to separate offenders from society;
• (ii) to provide reparations for harm done to victim(s)/ or community;
• (iii) to promote a sense of responsibility  in offenders and their acknowledgement of any harm done to their victims and to the community; and
• (iv)  to assist in rehabilitating offenders.

We will dig deep to examine all underlying factors contributing to  the circumstances of the actions that led to your being charged.

If necessary, we will obtain medical reports and other records and send you for any assessments from our team of Psychologists and Psychiatrists to obtain proper documentation of relevant factors to assist you and the Court in making the best and most fair decision.

We look at ALL AVAILABLE Options to Benefit you including:

• Withdrawal of Charge(s): The Crown may decide to withdraw a defendant’s charge(s) where:
  • They do not believe they have a reasonable prospect of conviction at trial, or
  • It was not in the public interest to prosecute.
• Stay of Proceedings: A stay of proceedings would effectively stop the charges against the accused. However, with a stay, the Crown can reopen the case within one year of the Stay. A withdrawal cannot be reopened except under exceptional circumstances.
• Diversion: Seeking approval of a Diversion Program, if available,with the result that the charges would be withdrawn upon completion of your conditions set out in the Program. Diversion is also known as Direct Accountability (DAP) and allows an accused to take personal responsibility for their actions without incurring a criminal record. It is usually reserved for first time offenders and minor offences. For is available in more serious cases if the Crown reviews the matter in depth with defence counsel and can be persuaded that diversion is appropriate. Diversion would require some form of effort by the accused to take responsibility such as community service, counselling or treatment, restitution, charitable donations, etc.
• Other Sentencing Options: we would seek all other sentencing options that could result in more favourable outcomes including no records in some cases. Judges have the ability to order any of the following:
  • (i) a conditional or absolute discharge under s. 730
  • (ii) a suspended sentence under s. 731(1)(a) and (b) provided the sentence was not in excess of 2 years
  • (iii) a fine under s. 731(1)(b)
  • (vii) a conditional sentence (HOUSE ARREST) -s. 742.1.

DIVERSION PROGRAMS:  REPRESENT HOPE

A program called DIVERSION, is available for persons charged with less serious offences. Typical offences would include but are not limited to mischief, theft, possession of property obtained by crime, obstruction, fraud, public intoxication and so forth.

In more serious cases, the Crown’s office would have to be persuaded this is appropriate and this would require intervention and advocacy by a competent Criminal lawyer.

Many cities including Newmarket, Toronto, Brampton, Oshawa, have DIVERSION PROGRAMS which offer 1st time offenders the option to have the charge “Diverted” from the Court system and the “Charges Withdrawn” provided certain conditions are present.

Each Courthouse has its own eligibility requirements for Diversion and the Crown’s Office will review the same to make that determination.

For Diversion eligibility, the key points are:

• In cases where the amount is minor, and the property is recovered – the Crown may pre-approve the case for the Diversion Program
• Diversion is designed for persons with no prior contact with the Criminal Justice System.
• If the accused has other pending charges, or prior dealings with police even if no charges laid, or charges laid and no conviction, it is unlikely that the matter will be Recommended for the Diversion Program. This is not to say that you will not receive Diversion.  It will mean that you will need a good Criminal Defence lawyer in your corner advocating for Diversion on your behalf to help you overcome these issues to persuade the Crown on this or the Judge.
  • The Crown will consider:
    • The character of the accused
    • The record of the accused
    • The danger to society
    • Damage done
    • If any restitution made
    • Any cooperation of the accused at the time of arrest
• Requirements imposed to satisfy Diversion Programs are determined by the facts of each particular case and could include:
  1. Make a charitable donation;
  2. Complete a specified number of community service/volunteer work hours;
  3. Both Charitable Donation and community Service;
  4. Deliver a statement of apology to the victim;
  5. Make restitution;
  6. Complete a substance abuse program;
  7. Complete an anger management program;
  8. Any other mental health counselling;
  9. Other – as may be determined by the judge

Once the requirements of the Diversion Program have been met, the Defence Counsel can relay this to the Crown and ensure that the Charge is withdrawn against the accused.
If a person is not pre-screened as eligible for the diversion program, a lawyer may be able to convince a Crown Attorney to reconsider their decision.

MENTAL HEALTH DIVERSION

A Program called MENTAL HEALTH DIVERSION is available for persons charged with less serious offences. They are applicable especially where there exists a mental health disorder or addiction.

The underlying idea is that Mental health diversion recognizes that it is unfair for a person with mental illness to suffer Criminal punishment and consequences for relatively minor offences that pose a low risk to the public.

If accepted into the diversion program the accused would receive community-based treatment to assist with their overall mental health, and addictions with the goal of preventing repeat of the offending behaviour.

Acceptance into the Mental Health Diversion Program is generally available to persons who suffer significant mental disorders such as:

• Schizophrenia and Schizoaffective Disorders
• Bipolar Disorders and other Mood Disorders
• Psychotic Disorders
• Perception and Thought Disorders
• Depression
• Anxiety Disorders
• PTSD
• Memory Disorders
• Fetal Alcohol Syndrome Disorders

Many times, an accused with these conditions will also suffer with a drug or alcohol addiction.

Call LAWYER UP to see if you are eligible for the DIVERSION PROGRAM.

CONDITIONAL SENTENCES

In the event a client receives a sentence of less than 2 years, we can seek a “Conditional Sentence” result which would avoid the accused having to go to jail.

A conditional sentence can be imposed by a Judge to allow a convicted accused to avoid having to spend time in jail and serve that sentence outside of jail under, under strict, jail‑like conditions.  This does not affect the fact that there will still be a Criminal Record.

Conditional sentences are sometimes called “house arrest,” because they often require the offender to spend all or part of the sentence in their house.

A judge can only impose a conditional sentence if:

• the sentence of imprisonment is less than two years;
• the offender has not been convicted of a criminal offence that requires a minimum amount of jail time;
• the offender has not been convicted of a terrorism offence, serious personal injury offence, or a criminal organization offence prosecuted by way of indictment for which the maximum term of imprisonment is ten years or more;
• the judge is satisfied that by serving the sentence in the community the safety of the community would not be threatened;
• the judge is satisfied that having the offender serve the sentence in the community is consistent with the sentencing principles of the Criminal Code.

Common Elements of Conditional Sentences

• Mandatory conditions, and restrictions will be in a conditional sentence that make it like a strict jail sentence. House arrest usually means that the offender must stay in their home at all times (or during certain hours) unless they are working, attending school or religious worship, or for medical appointments or emergencies.
• Other conditions attached will be similar to those in a probation order. It is common for a probation order to follow a conditional sentence.
• Supervision is by a conditional sentence supervisor (who is actually a probation officer)
• every conditional sentence requires the offender to report to the conditional sentence supervisor at least once, but reporting several times can be expected
• Breach of one or more of the conditions of a conditional sentence, will result in a hearing held in front of a judge.
• If the judge is convinced that the accused broke one or more of the conditions without a lawful or reasonable excuse, the judge may make the offender serve the remaining time in jail.

DEFENCES FOR DRIVE UNDER PROHIBITION

The following are some available defences to a charge of Drive under Prohibition:

• ACTUS REUS ELEMENTS: These are the required “physical elements: of the offence that the Crown must prove. As part of your defence, we would seek to raise defences to each required element of the charge. The Crown must prove all of the physical essential elements of the charge beyond a reasonable doubt. These physical elements are:
  1. identity of the accused a date and time vehicle operated
  2. vehicle operated in Canada
  3. the accused operated a vehicle
  4. that the vehicle was a “motor vehicle” defined under the Criminal Code
  5. operation occurred on a “street, road, highway or other public place”
  6. the accused was subject to a prohibition order by a court order at the time as evidenced by a Certificate
  7. time and date of the prohibition
  8. that a copy of the order was either given or mailed to the accused
  9. the accused was not registered in the alcohol ignition interlock device program, or was not in compliance with the conditions of the program
• IDENTIFICATION- the police must identify you as the actual driver beyond a reasonable doubt
• REASONABLE EXCUSE – in many offences having a reasonable excuse for taking action or any inaction may provide an accused with a complete defence, even where the accused may have actually committed all the necessary elements of the offence and voluntarily and wilfully did so. An example of a reasonable excuse would be a medical emergency. The reasonableness will be judged in all the circumstances.
• MENS REA – This is the mental element requirement of the offence and requires the Crown to establish that you voluntarily and wilfully intended to commit each of the separate elements described in the offence. It is essential to bring out all the facts to demonstrate that an accused acted diligently and had no actual knowledge of certain factual elements or was not wilfully blind as to them, or that any actions were not done voluntarily or wilfully. For example, OFFICIALLY INDUCED ERROR could be a defence.
• NECESSITY- in some circumstances Necessity can be a valid defence. Again, the Court would look at the entire situation and determine if this is valid to relieve the accused from criminal responsibility. Having to drive yourself or a loved one to a hospital when no one else was around might be a defence depending on the circumstances.
  • “Every rule and principle of the common law that renders any circumstance a justification or excuse for an act or a defence to a charge continues in force and applies in respect of proceedings for an offence under this Act or any other Act of Parliament except in so far as they are altered by or are inconsistent with this Act or any other Act of Parliament.”

  The defence of necessity can be used in emergency or similar type situations. In R v Latimer, 2001 SCC 1, the Supreme Court of Canada discussed the 3 factors that must be present for a defence of necessity to succeed:

  1. There was some type of imminent peril or danger;
  2. There was no reasonable legal alternative other than commit the offence; and
  3. That the harm caused by the accused was not disproportionate to the harm he was trying to avoid.
• CHARTER DEFENCES – If any of an accused’s Charter rights were violated these would provide a remedy including the dismissal or staying of charges against the accused or the exclusion of evidence.
  Charter Rights examples:
  • 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.
• INTERLOCK EXCEPTION: Under s. 320.18(2), a person cannot be guilty of driving while prohibited if they did so while being registered in a provinciallyapproved program for an alcohol ignition interlock device, and they comply with the conditions of the program.
• PROVE IT: We would insist upon the Crown to prove all elements of the offence Beyond a Reasonable Doubt. If a reasonable doubt exists on ANY of the essential elements of the charge, then the Crown’s case is not provable in Court and you cannot be convicted.
• RIGHT TO TRIAL WITHIN A REASONABLE TIME: Cases are regularly dismissed simply for failure for the Court, for whatever reason, to have these trials completed so long as the delays are not completely the fault of the Accused or his/her counsel.
• RIGHT TO TRIAL WITHIN A REASONABLE TIME: Cases are regularly dismissed simply for failure for the Court, for whatever reason, to have these trials completed so long as the delays are not completely the fault of the Accused or his/her counsel.
  In simple terms, the Supreme Court of Canada has interpreted section 11(b) of our Charter of Rights and Freedoms that guarantees everyone a right to be tried within a reasonable time by setting clear standards for trials to be completed in both the Ontario Court of Justice – Provincial Court (18 Months) and the Superior Court of Justice (30 Months).
  The time starts when the charge is laid and runs to the date of the expected completion of the trial. Anything beyond this amount of time (minus defence delay) is presumed to exceed the ceiling and gives the Defence the Right to bring a Charter Application to have the Case Stayed (effectively dismissed) on account of delay.
  Only in very exceptional circumstances can the Crown argue it is unreasonable to ask for a Dismissal.  Some of the largest Criminal cases in Canadian history have been dismissed on this basis and many, many cases are dismissed for delay.
• We will utilize this right in our arsenal of tools to properly defend our clients no matter what the charge and if the case is delayed you can expect we will argue it to be dismissed.

Call 905-745-6180 or Schedule Consultation Online

DRIVE PROHIBITED: ARREST AND BAIL

If you are arrested, you could face one of two scenarios:

• You could be released at the station by the Officer in Charge on a Promise to Appear – this is discretionary and if you make your phone call to us from the station or before you are charged we can attempt to negotiate your release in this manner. Otherwise, you will be held for a bail hearing.

OR

• In any bail hearing you will likely face a “reverse onus” meaning instead of the Crown having to demonstrate why the accused should not be released, the onus is on the accused to show why they should be released. This higher onus means if you are charged, you need to be prepared seriously for any bail hearing, with sureties and a solid bail plan. We can help if this situation arises.

APPEALS OF CONVICTION & SENTENCE & LIFTING THE DRIVING PROHIBITION

If you have been convicted, you can appeal both your conviction or sentence or both. Usually, an appeal must be filed within 30 days of the date that sentence is imposed otherwise leave to appeal must be obtained.We would be happy to discuss with you your case and your appeal options.

We can also apply under section 320.25 (1) and (2) of the Criminal Code for a judge to order a stay of the Prohibition order. The Stay would in effect lift or pause the prohibition order, but the Court could impose any conditions it felt necessary, pending the outcome of the appeal or until otherwise ordered by the Court.

If it is necessary to launch an appeal, It is necessary that we order transcripts immediately and provide the Court with a Certificate to confirm this at the time we file your Appeal.

Because time is of the essence, don’t delay, call right away to arrange a consultation.

RECORD SUSPENSIONS AND PARDONS

If you have been convicted of any offence we can apply on your behalf for a record suspension pursuant to the Criminal Records Act. There are mandatory waiting periods after conviction before you are eligible.  Contact us and we would be happy to discuss this with you.

SHOULD I SPEAK TO THE POLICE & OTHER TIPS?

Typically, any person potentially involved in a crime should not be speaking to the police before getting proper legal advice because:

• They may or may not know that you were involved with any certainty. Using camera technology, the police can identify persons and also track their vehicles on roadways, get vehicle plate numbers and locate the owner of the vehicle.  Police have other investigative tools as well to locate potential suspects.
• The Police may call you or show up at your residence when you are not prepared to speak to them.
• The Police may say they are there to try to “clear up” a situation or to exclude you from being involved and ask where you were on a specific day and time. If you lie, you will have further problems.
• The Police may try to tempt you by saying if you “cooperate” they may not lay any charges. Remember that the Police are there to conduct an investigation.
• They are allowed to lie as an investigative tool in order to secure statements from persons they are investigating.
• Do not rely on “advice from the police” as they are not acting in your interest.

Call 905-745-6180 or Schedule Consultation Online

WHAT SHOULD I DO WHEN THE POLICE SHOW UP?

• Do not speak to the police about the matter. Listen to what they say and then tell them sorry, you have nothing to say. I’m going to call a lawyer. They may persist in getting you to try to speak. Just play the “broken record routine” of repeating your refusal, by saying “sorry, I’ve got nothing to say until I speak to a lawyer. I’m going to call a lawyer”. Then call us.
• Remember, you cannot be “pressured” into speaking to the police. You must not feel pressured.  You have no obligation to speak to the police.  It is your Constitutionally protected right to remain silent.
• The right to remain silent is guaranteed by section 7 of the Canadian Charter of Rights and Freedoms which states:
  • “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice”.
• This means that a person does not have to speak to a police officer or other person in authority. The reason for this is the basic presumption of our legal system that all individuals are presumed innocent until proven guilty.
• If you should decide to speak to a police officer, then you must tell the truth. If you lie to the police, and the lie is discovered, you may be charged with the criminal offence of public mischief, obstructing a police officer, or obstructing justice. Lying to the Police will cause issues with your defence in your trial as your credibility on other statements you may have to make would be called into question by those false statements made to the police.
• Your Constitutional right to remain silent (and not to speak to the police) is protected by the Courts. If it is violated by the police or other state agents (such as paid informants or undercover agents) the trial judge has the power and obligation in certain circumstances to exclude any evidence obtained by the police under these circumstances.  As well, the Court can also exclude any other evidence that might flow from that under the doctrine “fruit of the poisonous tree” in order to prevent the administration of justice from being brought into disrepute.
• You can always waive your right to remain silent, but it is never recommended.  If you do, to be legal, your waiver must be fully informed andvoluntary and you must understand the consequences of the waiver. (eg. that the statements could be used against you (or anyone else) and any evidence obtained as a result of you giving them can be used in court against you, or anyone else.
• In addition to your right to remain silent, you cannot be required to give evidence against yourself. However, if you do testify, you are obliged to the truth. In rare cases, if it can be shown that you lied, you could be charged with perjury.
• Lastly, even though the right to remain silent applies any time an individual interacts with a person in authority, there is no requirement that the police advise a person of the right to silence. However, as with all Charter rights, the right to silence cannot be waived (given up) unless such a waiver is informed with full knowledge of the consequences of one’s actions.
• You do not have to waive it. It is also your Constitutionally protected right to instruct counsel without delay.
• If the Police ask you “do you mind if we step inside to speak” you should say you would rather they stay outside because once you invite them inside, anything they inside will be fair game for them. If they see anything linking you to the crime they are investigating, or any other potential crime they can charge you.  For example if they see Marijuana plants growing in a room, and you have no licence for this, you would be charged.
• Do not make any decisions based on what the police tell you or before you have all the facts. Make that decision AFTER speaking to our office.
• Do not post evidence or comments online or speak to others about any potential crime as this creates a public record.
• Do not speak to others about the potential crime as you’ll only create a greater possibility of witnesses against you.
• Advise them that you are exercising your right to remain silent and your right to contact your lawyer.
• They may take you into custody and arrest you but you are far better off in all criminal cases to make no statement to the police.
• Insist upon calling our office if you are arrested for advice.
• Remember that any statement you give will likely be used against you.
• If you give any statements, you end up pinning yourself down to a version of events that you are stuck with and that will hamper your defence.
• Do Not take any cell phone with you to the police station if you are taken into custody as the police commonly will do forensics on your cell phone while you are in custody.
• Do Not Consent to any form of Search of your home or vehicle. Police need a search warrant to conduct any search.

Call 905-745-6180 or Schedule Consultation Online

REASONS TO CHOOSE LAWYER UP

1. We know the Law: We understand the charges you are facing and have the skill to deal with the complex legal issues in them.
2. Legal System for You: We make sure the legal system works not just for the police and the Crowns but for you !
3. We are Fast: We will be in your corner from the first call.
4. Unique Plan: We will develop with you a unique plan for your case. We will consider all of your personal factors, family, employment, immigration, travel, finances, etc.
5. We Listen: You can reach us by phone/email anytime.
6. Progress Updates: Regular progress updates on the case.
7. You are Never Alone: We communicate with you. You’ll never be in the dark.
8. Peace of Mind: Wego to Court for you, so you don’t have to, except when absolutely required by the Court.
9. We Go Above and Beyond to Have your Back: We are in your Corner and dig deep, working hard and smart leaving no stone unturned to protect your rights using all legal means available.
10. Flexible Financial Plans: We’ll work out financial payments that you can manage.
11. We See the Big Picture: We’ll protect ALL of your rights. Under Canadian law you are presumed innocent until proven guilty. You are not required to prove your innocence, only raise a reasonable doubt as to your guilt, based on all the evidence before the Court.
12. We seek to minimize all negative Consequences: We try to minimize the negative effects of a conviction and criminal record on you which could expose you to civil actions, risk to employment, education, or travel plans and harm your immigration status.
13. One Stop Legal: We can deal with any spin off legal issues including your immigration, employment or any civil actions if needed so you won’t have to find another lawyer. Since we know your case you’ll save money.
14. Our Goal: We aim is to investigate the facts and to negotiate a conviction-free result for you. We always seek a conviction-free resolution with NO CRIMINAL RECORD. Secondly, we always seek to have you avoid any jail time, by looking for alternate opportunities available in sentencing other than jail. We bring to the Crown’s and Court’s attention all factors that mitigate against a harsh sentence and in the worst scenario if Jail is the only option available, we will pursue a Conditional Sentence so any time may be served under House Arrest allowing you to continue to see your family and go to work.
15. Fair treatment and Vigorous Defence : We are relentless to obtain an acquittal or resolution at the earliest opportunity for you. We do our best to ensure you receive fair treatment throughout any allegations are vigorously defended by tough negotiation, and tough cross-examination when necessary, and by bringing all required Court Motions to protectall your legal and procedural rights from beginning to end.

Call 905-745-6180 or Schedule Consultation Online