Driving while prohibited Lawyers in Canada

The Crown is the prosecutor. Section 11(d) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to be presumed innocent until proven guilty, so the Crown is the side that has to prove the charge.

Section 320.18(1) has two parts. The person must have operated a conveyance, and the person must have been prohibited from doing so at the time. Section 320.11 defines a conveyance as a motor vehicle, a vessel, an aircraft or railway equipment. For a motor vehicle, to operate means to drive it or to have care or control of it.

The prohibition can come from an order made under the Criminal Code. For example, when a person is found guilty of impaired operation, section 320.24 says the court that sentences the person shall make a prohibition order, and for a first offence the period is not less than one year and not more than three years, plus the entire period to which the offender is sentenced to imprisonment. It can also come from another legal restriction under an Act of Parliament or provincial law, imposed in respect of a conviction under the Code or a discharge. Section 320.24 says 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.

Section 320.18(2) creates an exception. No person commits the offence 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. Section 320.24 sets waiting periods before a person may be registered, and a lawyer can explain them.

Section 320.19 makes an offence under section 320.18(1) one that can proceed on indictment, with a maximum of imprisonment for not more than 10 years, or as an offence punishable on summary conviction. For a summary conviction offence, section 787(1) sets the general penalty unless the law provides otherwise: a fine of not more than $5,000, or imprisonment of not more than two years less a day, or both. A maximum is the ceiling the law allows. It does not say what a court would order in any case.

Section 53(1) of Ontario's Highway Traffic Act creates a separate offence. It applies to a person who drives a motor vehicle or street car on a highway while their driver's licence is suspended under an Act of the Legislature or a regulation made under it. The section speaks of a suspension under a provincial Act, not a prohibition order under the Criminal Code. It is a provincial offence in a provincial statute.

On conviction, a first offence carries a fine of not less than $1,000 and not more than $5,000. For each subsequent offence the fine is not less than $2,000 and not more than $5,000. The section also allows imprisonment for a term of not more than six months, or both. A note in the Act says that, on a day to be named by order of the Lieutenant Governor in Council, the first-offence range will become $2,000 to $10,000. That change has been passed but is not yet in force.

Section 41 of the same Act is one way a licence becomes suspended. A conviction for impaired operation and certain other Criminal Code driving offences suspends an Ontario licence for one year on a first conviction. A licence suspended under the Act is suspended under an Act of the Legislature, which is the wording section 53 uses. Which offence applies to a given set of facts, if either, is for the court, and a lawyer can explain it.

The words of section 320.18 show where a case can turn: whether the person operated a conveyance, and whether a prohibition applied at that time. That can involve the type of conveyance named in the order, the period of the order, and whether the ignition interlock exception applies. The words of section 53 raise the questions of whether the person drove on a highway and whether the licence was suspended at that time. Whether a particular defence applies is a question for the court on the evidence.

Charter rights also apply. Section 8 gives everyone the right to be secure against unreasonable search or seizure. Section 9 gives everyone the right not to be arbitrarily detained or imprisoned. Section 10 gives everyone on arrest or detention the right to be informed promptly of the reasons and the right to retain and instruct counsel without delay and to be informed of that right. Under section 24(2), evidence obtained in a manner that infringed Charter rights is excluded if admitting it would bring the administration of justice into disrepute.

In Ontario, every charge under the Criminal Code starts in the Ontario Court of Justice, and about 95% of charges are completed there. A charge under the Highway Traffic Act is a provincial matter, and this page does not set out where it is heard.

A person who is arrested on a Criminal Code charge may be taken before a justice for a release decision. Under section 515, the justice shall make a release order without conditions unless the prosecutor shows cause why detention in custody is justified or why another order under that section should be made. Section 11(e) of the Charter protects the right not to be denied reasonable bail without just cause.

An appeal from a summary conviction goes, in Ontario, to the Superior Court of Justice sitting in the region, district or county where the case was decided. After a conviction on indictment, an appeal goes to the court of appeal, as of right on a question of law alone and with leave on other grounds or against sentence.

Legal Aid Ontario may pay for a lawyer if the person qualifies and is charged with a crime that could mean jail on conviction, or is 12 to 17 and charged under the Youth Criminal Justice Act. Duty counsel is a lawyer at the courthouse for that day. Duty counsel can advise on rights, ask to delay a court date, act at a bail hearing, help with a guilty plea, speak at sentencing, and meet the Crown, for people who qualify and have no lawyer.

A legal aid certificate pays a roster lawyer, one approved to take legal aid clients, for the length of the criminal case. Applications are online or by phone at 1-800-668-8258.

The Law Society of Ontario keeps a public Lawyer and Paralegal Directory, where a lawyer's licence can be looked up. The Ontario lawyers on this site are listed by city. Nothing on this page ranks or recommends any of them.