Driving while Disqualified – CCC 259.4
Every driver who operates a motor vehicle, vessel or aircraft or any railway equipment in Canada while disqualified from driving, is;
- guilty of an indictable offence and
- liable to imprisonment for a term not exceeding five years; or
- is guilty of an offence punishable on summary conviction.
Drive while disqualified is a judge’s order that the accused shall not drive a motor vehicle anywhere in Canada. The Criminal Code of Canada makes it a serious criminal offence to disobey an order imposed by a judge.
The crown attorney and courts will consider any incident of driving while disqualified a serious criminal event. In that a judge has ordered the accused not to drive and the accused has wilfully disobeyed a judge’s order.
Most crown attorneys when initially reviewing drive disqualified charges will be considering that a period of jail from thirty (30) to ninety (90) days is the appropriate penalty.
The penalty may also include;
- forfeiture of the motor vehicle
- probation
- increased terms of licence suspensions
- fines, and any other conditions or penalties that the court may consider reasonable
Where the accused is convicted of driving disqualified, the court will usually add an additional one (1) to (3) years of further licence suspension.
Where a prohibited driver is found driving a motor vehicle the police may seize the vehicle and hold it in custody for forty five (45) days. The driver or owner of the vehicle shall be responsible for the towing and pound fees. The normal pound fee will be approx. seventy-five (75) dollars per day, meaning the pound fee at the end of the 45 days will be in the range of $3,300 plus the towing fee.
Where the driver is not the owner, the owner is responsible for the towing and impound fees. The only way the vehicle may be released prior to the 45 days is by way of a judges order made by application to the court.
The vehicle maybe released to the owner without a hearing, where the owner proves to the arresting officer that:
- the vehicle had been stolen from the owner
- the owner proves to the officer or court that the vehicle was taken without the consent of the owner acting reasonably.
Where the vehicle was taken without the consent of the owner, the owner may make an application to the court for a Justice to review the circumstances of the incident. At the application to release the vehicle the judge will consider;
- did the owner take reasonable precautions to ensure the driver did not have access to the vehicle,
- did the driver take the vehicle without the consent of the owner
- will the continued seizure would unreasonably penalize the owner
- how will the owner ensure that the accused does not repeat the incident
Where the Justice believes that the owner did not facilitate the driver to operate the motor vehicle the judge may order that the vehicle be released.
Everyone is entitled when charged with a criminal offence to defend themselves in court. You may feel that if the police have arrested you for driving while disqualified that you’re automatically guilty, which is wrong.
It’s your right under Canadian law to have a lawyer challenge the evidence of the police , to have a Judge hear what happened and for the judge to make a decision about the guilt or innocence, not the police.
The law on driving while prohibited is strict, and the police and the crown attorney must do everything properly and legally to obtain a conviction against the accused. There are defences drive disqualified and when we review your case and the reasons for driving with the crown attorney there maybe compromises or resolutions to avoid the accused going to jail.
In a drive disqualified case the police and prosecution must to prove:
- the prohibition order made by the court
- that the vehicle was a motor vehicle as defined in the Criminal Code of Canada
- that the police arrested and charged the driver properly without violating their rights
- that all documentation (the paperwork) is proper
- the trial is within in a reasonable period of time
These and many other issues may present a defence to a criminal charge. Not all criminal cases go to trial. Many times where are resolutions and reduced charges that maybe agreeable to the accused to avoid the implications of the penalties of a criminal conviction.
