Driving Offences

Driving Offences

It is not uncommon for drivers in British Columbia to get caught in a vicious cycle of driving prohibitions. This is particularly common with novice drivers, and it can cause some people to be unable to graduate to a full licence for 5-10 years. This cycle of driving prohibitions BC can have compounding negative consequences for a driver’s employment, familial obligations, and financial well-being.

The driving prohibition cycle begins with an initial prohibition issued by RoadSafetyBC, the government body that monitors the driving records of licence holders in British Columbia. Drivers are brought to RoadSafetyBC’s attention when traffic tickets or alcohol or drug infractions are added to driving records, subject to certain thresholds.

Class 7 or 8 drivers (N or L) receive the most scrutiny. According to the Driver Improvement Program Policy and Guidelines, Class 7 drivers can be prohibited for any single ticket carrying two or more demerit points, or any single alcohol or drug-related infraction.

Drivers with full licences (Classes 1 – 6) are given more latitude but are still monitored. For example, two high-risk offences (excessive speeding or cell phone tickets) within a certain time period will result in a lengthy prohibition.

Prohibitions are absolute and measured in months, not weeks. Prohibitions from RoadSafetyBC will not allow certain hours where you can drive for work or school.

Following the conclusion of a driving prohibition, a driver will be on probation. RoadSafetyBC will scrutinize the driver’s record for the next two years, or until the driver gets their full licence. If further traffic, or alcohol or drug-related infractions are added to the driving record, another prohibition will issue. Further, a subsequent prohibition is almost certain to be longer in duration than the first prohibition. In this way, the vicious cycle of prohibitions continues. The driving prohibitions get longer and the probationary period starts all over. Driving during a driving prohibition will lead to a driving while prohibited charge which are dealt with in criminal court.

While a lawyer experienced in driving matters can be of assistance at any time, the best way to avoid any disruption in your ability to drive, and to avoid falling into the cycle of prohibitions, is to obtain legal advice at the earliest stage. If you have received a driving prohibition or have been caught driving while prohibited, call Filkow Law for help.

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The following paper was written by Filkow Law’s Kevin Filkow in response to the BC Government’s amendments to the Motor Vehicle Act (MVA) in 2010. These amendments are now the law in BC and the issues outlined by Mr. Filkow persist to this day.
This paper was written for The Advocate, a leading law journal published by the Vancouver Bar Association. 

If you are in need of legal assistance, call Filkow Law today.

The Ministry of Public Safety and Solicitor General issued a News Release on April 27, 2010[1].  The Release trumpeted that “The province is introducing Canada’s most immediate and severe impaired driving penalties to save lives, curb repeat offenders and give police more enforcement tools.”

Subsequent to this Release and as an extension of same, the Office of the Superintendent of Motor Vehicles issued bulletins spelling out the penalties which will be part of the new regime.  A comparison of the current and new penalties can be found at the foot of this article[2].

Fundamental to the new regime will be an unequivocal acceptance of a police officer’s report of what took place at a roadside stop upon a breathalyzer test being administered or upon one being refused.  If the reported reading is a fail or if the officer reports a refusal, the new penalties take effect immediately with very limited administrative appeal rights with no true prospect of success.  The ostensible intention, as amplified below, is not to engage drinking drivers in the judicial process except in a limited number of situations.

The Backgrounder[3] to the Province’s Release stresses:  “Major amendments to impaired driving sections of the Motor Vehicle Act (MVA) will ensure impaired drivers caught in BC face instant loss of their driving privileges (90 days) and impoundment of their vehicles (30 days).”   There are other corollary mandatory requirements, i.e. completing the Responsible Driver Program and installing an ignition interlock device which must be utilized for a minimum of one year.  Both these programs are costly. They are without exceptions for hardship or otherwise. In addition, the financial penalties are substantial.  For example, a driver with no relevant history failing a breath sample at roadside or refusing to provide a sample will face minimum fines and fees of approximately $4060.

The Release does add that failing or refusing drivers may also face criminal charges.

What the Release does not say is that there is every indication that criminal charges will only be laid in particularly aggravated circumstances (such as an accident or where there is a prior related conviction) which going forward will be increasingly rare.  The effect of this is that the overwhelming majority of drivers, tested under the new regime, will have no meaningful recourse to challenge what the police say took place at the roadside.  The peace officer will record the reading of the Approved Screening Device (ASD) or alternatively will document the  alleged refusal and then “the curtain drops.”

While right-minded citizens of British Columbia are acutely concerned about drinking and driving, there is every reason to be discomforted by this ‘machine type of justice.’ The ASD was intended to be a screening mechanism under the Criminal Code to assist a peace officer in evaluating the driver’s condition as to sobriety.  The ASD does not have a record keeping or memory capacity.  The instrument can be operated improperly.  The new legislation, however, effectively allows the reading to be definitive.  There is no opportunity to challenge the instrument, no opportunity to cross examine the officer as to the integrity of what occurred and no opportunity to challenge the manner in which the ASD was operated.  An instrument intended only as a screening device is now elevated to a determinative role[4].

The new regime reposes extraordinary power and authority in a peace officer.  Failure to allow for a criminal defence process disregards the unfortunate reality that there are zealous or wrongly disposed peace officers or officers who may mismanage the instrument or simply make a mistake.  No cross-examination or scrutiny of the officer takes place under this regime.

What is not being said is that highly culpable behaviour such as driving while drunk will now largely be outside the criminal process.   The Office of the Superintendent of Motor Vehicles on its website[5] stresses that the “province is introducing changes to give BC the toughest provincial impaired driving legislation in the country.  If you drink and drive after the new law comes into effect on September 20, 2010, you can count on penalties adding up to between $600 and $4060 – even if it’s the first time you’re caught – and more time off the road.”

The corollary of this new approach, though, is that in not facing criminal charges, the driver will not be exposed to the instructiveness of the criminal justice system.  There is significant value in the experience of retaining counsel, facing a public record for criminal behaviour, facing denunciation, and, on some occasions, receiving thoughtful remarks from a presiding judge.  There is an irony, a disconnect that behaviour which is such a serious threat to public safety, will now largely avoid the criminal process.

Also unspoken and related to the previous paragraph is that the province clearly intends to save serious treasury by allocating significantly less resources to what has been the criminal process, i.e. police investigations, Crown prosecutions and trials.  Ostensibly, the motivation is to free up these resources to allocate to ‘more serious’ criminal behaviour.  If that is so, the priorities are misguided. There is probably no form of criminal behaviour more pervasive than drunk driving.  There is probably no criminal behaviour more capable of effective deterrence through public denunciation and the related process.  It is also a reality that police officers should be investigating criminal behaviour; this behaviour should not be given diminished significance.

The volume and the cost of the impaired driving problem should not be a rationale for compromising individual rights and protections.  There are no practical or genuine checks and balances under this new regime.  Criminal law has always required a very high standard of proof and a compelling burden on the Crown to meet its case.  What the Federal Government sees as criminal will now be something else – effectively an administrative regulatory matter.  It would seem reasonable to expect that the new legislation will face a challenge in seeking to displace the federal criminal law power under s. 91 of the Constitutional Act.

What is not mentioned is that there will be a disparity between incidents where there is an ASD handy and those incidents where there is not.  Any driver pulled over in the latter circumstances will likely be subject to the old regime and will in these limited cases have access to the criminal justice system.

Indicative of how far reaching is this philosophical change by the BC government is the Warning protocol.  This Warning protocol will apply to drivers whose apparent readings are below the legal limit of .08% blood alcohol content and may not be demonstrating any signs of impairment.

As outlined above, a driver who fails (above .08%) or ‘refuses’ to provide an ASD sample will be given a 90-day suspension at roadside, will be subject to a one year Interlock Ignition program and financial penalties which amount to $4060.  His or her vehicle will be impounded for 30 days.  The Warn range is a reading of .05 to .08% (some ASDs are calibrated to .099%).  This results in an immediate 3-day suspension, a 30-day impoundment and minimum fines and fees of about $600.  This is for the first warn in 5 years.  A second warn in the same period draws a 7-day suspension, a longer period of impoundment and minimum fines and fees of $760.  A third time warning within 5 years carries with it a 30-day suspension, a 30-day impoundment, a one year Ignition Interlock program and a minimum financial penalty of $3650.  Three beers within a two hour period would put virtually anyone in the Warn range.  There is again no practical opportunity to challenge these consequential penalties and, in these cases, for not behaving in an illegal manner.

The province’s express rationale is that enforcement of drinking and driving offences will be far more expedient under the new regime.  It characterizes the new regime as the toughest driving laws in the country.  While the penalties under the new laws are certainly swift and severe, the intended approach avoids the criminal justice system and allows a matter of serious legal consequence to be technologically and summarily resolved at the instance of a peace officer whose fairness and ability are taken as a “given.”  In this author’s view this departure from the honoured protections is a matter of concern.  A better alternative would be to ensure greater resources as necessary to expedite the process which preserves the rights and protections of individuals.

[1] Ministry of Public Safety and Solicitor General, News Release, 2010PSSG0026-000472, “B.C. INTRODUCES CANADA’S TOUGHEST IMPAIRED DRIVING LAWS” (27 April 2010).

[2] See Appendix: Office of the Superintendent of Motor Vehicles, online: CURRENT and NEW Penalties Comparison Chart <http://www.pssg.gov.bc.ca/osmv/publications/docs/impaireddriving-currentandnewpenalties.pdf>.

[3] Ministry of Public Safety and Solicitor General, Backgrounder, 2010PSSG0026-000472, ” B.C.’S IMPAIRED DRIVING LAW TO CHANGE” (27 April 2010).

[4] The Supreme Court of Canada held in R. v. Orbanski, [2005] S.C.J. No. 37, that there is no entitlement at the roadside to be advised of or to receive counsel as the evidence obtained would only go to the police officer’s reasonable grounds to make a breathalyzer demand. The new legislation extends that principle to a situation of a very different character.

[5] Office of the Superintendent of Motor Vehicles, online: Impaired Driving <http://www.pssg.gov.bc.ca/osmv/impaired-driving/index.htm>.

© By Kevin A Filkow

 

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RoadSafetyBC issues driving prohibitions to both new and experienced drivers who receive tickets on their driving record. In McEachern v. British Columbia (Superintendent of Motor Vehicles), 2019 BCCA 195, the BC Court of Appeal confirmed that RoadSafetyBC can issue driving prohibitions if it determines your driving record is 1) unsatisfactory, and that 2) it would be in the public interest to issue a prohibition. The public interest includes deterring poor driving behaviour. RoadSafetyBC alone decides these factors and is afforded significant deference in those determinations.

Here is Why You Should Dispute Your Tickets

If you receive a ticket, you should consider disputing it for a number of reasons, not least of which is that you can be prohibited from driving for receiving even a single ticket as a new driver, or as few as 2 tickets as an experienced driver. If you pay your ticket, fail to dispute your ticket, miss your hearing, plead guilty, or are convicted of the offence, the violation will go on your record, and will be used against you by RoadSafetyBC in deciding whether to issue a prohibition. Also, an entry on a driving record is permanent.

What Happens When You Receive a Driving Prohibition?

If RoadSafetyBC decides to prohibit you, they will send you a Notice of Intent to Prohibit by mail to the address on file for you. You should make sure you that you keep your address updated with ICBC.

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. You are given 21 days from the date on the Notice of Intent to Prohibit to prepare your submission as to why a driving prohibition should be revoked or why it should be shortened. If you provide submission within the 21-day timeline, your prohibition will be put on hold until a determination is made on your submissions.

A Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving. You will receive a Notice of Prohibition if you fail to respond to a Notice of Intent to Prohibit that was sent to you, if you are serving another prohibition already, or you are on probation. You can apply to review a Notice of Prohibition. However, unlike with a Notice of Intent to Prohibit, the prohibition will not be placed on hold, meaning you will serve the driving prohibition during RoadSafetyBC’s review of your submissions.

If you do not acknowledge your Notice of Prohibition, a police officer can serve you with the prohibition at the roadside. Generally, you will be permitted to drive home, but thereafter, your prohibition will commence, and you cannot drive for any reason until your prohibition ends.

In addition to reviewing your prohibition with RoadSafetyBC, you can seek judicial review of RoadSafetyBC’s decision to prohibit you by appealing to the BC Supreme Court. However, RoadSafetyBC has new policies and guidelines. The updated Driver Improvement Program Guidelines change the timelines for appealing your driving prohibition to the BC Supreme Court.

Driving prohibitions can obviously have major effects. If you receive a Notice of Intent to Prohibit, or a Notice of Prohibition, or any driving prohibition, you are welcome to call our office for advice and representation.

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The Supreme Court of Canada has ruled that excessive speeding can amount to dangerous driving, even if the speeding is for a short period of time. 

When it comes to dangerous driving, the question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences as opposed to purely civil consequences? This is a question of degree.  We all make mistakes and do dangerous things when we drive.  We speed, sometimes excessively, and make bad decisions, like speeding up instead of slowing down when the light turns yellow. Every time we change lanes without doing a shoulder check it’s potentially dangerous to other drivers.   But not all of us are charged with or convicted of dangerous driving under the Criminal Code of Canada when we engage in these behaviours.  Normally we are issued a motor vehicle violation ticket which can be challenged in traffic court.  For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide.  Not all of our bad, or even dangerous driving behaviour, should result criminal sanctions.  However, the recent case from the Supreme Court of Canada in R v. Chung 2020 SCC 8 signals that the net of driving behaviours captured by the offence of criminal dangerous driving is indeed wider than previously believed.  

Related: BC Driving Prohibition FAQ

On the morning of Saturday, November 14, 2015, Mr. Chung drove his vehicle at almost three times the speed limit towards the intersection of Oak Street and West 41st Avenue in Vancouver and crashed into a left-turning vehicle. It was not raining, but the road was wet. Traffic was light around the intersection at the time, but other cars were present. The speed limit for both streets is 50 km/h, but the court heard evidence that drivers generally go above that speed limit. Both roads are wide and straight and have dedicated left turning lanes. A dashboard camera video from another vehicle captured 4.9 seconds of the event. Over the span of a block, Mr. Chung had moved into the curbside lane, passed at least one car on the right, and accelerated from 50 km/h to 140 km/h before entering the intersection. The trial judge found that Mr. Chung was not inattentive nor was he engaged in any dangerous conduct prior to this one block span. Mr. Chung was driving a powerful vehicle that could accelerate quickly. As Mr. Chung approached the intersection going north along Oak Street, there was a Toyota in front of him making a right turn. As the Toyota was turning right, the other driver started to make his left turn from going southbound on Oak Street to eastbound on West 41st Avenue. At this point, Mr. Chung started braking, narrowly missed hitting the Toyota, and collided with the victim’s car at a speed of 119 km/h. The driver of the left-turning vehicle died at the scene. Mr. Chung was charged with dangerous driving causing death.

How Dangerous Driving is Determined

Generally speaking, all crimes are composed of two elements: a “guilty act” (referred to in Latin as the “actus reus“) and a “guilty mind” (referred to in Latin as the “mens rea“).  To be guilty of a crime, a person must do something that is against the (criminal) law. This is the “guilty act” (“actus reus”). But something has to make the person criminally (as opposed to civilly) responsible for what they’ve done. This is called the “guilty mind” or “mens rea” in Latin.

For some crimes, like dangerous driving, a person can be responsible even if they don’t mean to do anything wrong. Instead, the Judge will look at what an ordinary, sensible person (a “reasonable person”) would have done. If the manner of driving of the accused person and the “reasonable person” are very different, this is considered a “marked departure”. In a case involving a charge of dangerous driving, in assessing a driver’s guilty mind the courts consider whether the manner of driving constitutes a “marked departure” from the manner of driving of an ordinary reasonable person. Driving in a manner that is “marked departure” from that of a reasonable person is the guilty mind for crimes like dangerous driving. The actus reus for this crime is driving in a way that is dangerous to the public. 

What constitutes a “marked departure” from the manner of driving of an ordinary reasonable person is a question of degree.  Judges in Canada have struggled to apply this test. That’s because dangerous driving attracts criminal as opposed to purely civil consequences.  The question courts have struggled with is how bad does someone’s driving have to be before it attracts criminal sanction and consequences.  For good reason, the courts have been concerned not to cast the net of criminal dangerous driving too wide.  People drive badly every day.  People speed, often excessively, and driver’s make poor decisions that result in crashes. But not everyone who speeds, even excessively, or makes a poor decision that results in a crash is charged with or convicted of dangerous driving.  If it did, our courts would be inundated with dangerous driving cases, and too many Canadians would have criminal records.  Consequently, not all bad driving or even dangerous driving (excessively speeding for example) means the person should be convicted of dangerous driving.  The driving behaviour must also constitute a “marked departure” from that of an ordinary reasonable person.  

The experienced trial judge said Mr. Chung’s extreme speeding over a short distance met the requirement for the guilty act but he didn’t think Mr. Chung had the “guilty mind” or mens rea. He said even though tragic consequences ensued, the brief period of speeding, on its own, wasn’t enough to establish the “marked departure” required for the offence of dangerous driving.  

The Crown appealed. The British Columbia Court of Appeal said the trial judge made an error by concluding that speeding over a short period of time wasn’t enough to show a “marked departure” from that of a reasonable person. The BC Court of Appeal concluded: “In this case, I cannot understand how one could possibly describe the accused’s conduct in driving at almost three times the speed limit into a major urban intersection as anything but a marked departure from the standard expected of a reasonable driver”. The Court of Appeal replaced the “not guilty” finding with a “guilty” finding. Mr. Chung appealed this decision to the Supreme Court of Canada.

The majority of judges at the Supreme Court of Canada agreed that the trial judge erred. They said the trial judge focused on the fact that Mr. Chung’s speeding was for a short period of time but this wasn’t the right thing to focus on. The trial judge should have looked at whether a reasonable person would have foreseen a danger to the public and what the reasonable person would have done in the situation. The trial judge should have compared this to what Mr. Chung did, and then decided if his conduct was a “marked departure” from that of the reasonable driver.  The majority said that Mr. Chung’s conduct was a “marked departure.” Like the BC Court of Appeal, the majority judges at the Supreme Court of Canada said a reasonable person would have foreseen that quickly accelerating toward a major intersection at a high speed would create a risk, almost immediately, of hurting someone. The majority of judges said that a reasonable person understands that driving, by nature, is risky. They said the faster someone drives, the harder they accelerate, and the more aggressively they deal with traffic, the more risky it becomes. They said that even careful driving can have tragic results. But some conduct, like the driving in this case, is dangerous enough that it deserves criminal punishment.  The majority confirmed that Mr. Chung was guilty of dangerous driving causing death. It is important to note that the “marked departure from the ordinary reasonable driver” was the conduct of approaching a major intersection at three times the speed limit and not the fact that a crash ensued or that the other driver was killed. 

The problem with this approach is that from a practical perspective, a charge and conviction for dangerous driving is entirely consequence driven, even though neither the guilty act nor the guilty mind elements of the test for dangerous driving even consider the fact that there was a crash.  The reality is that if Mr. Chung had driven excessively through a major intersection and there was no crash, he would have been issued a ticket for excessive speeding and his vehicle would have been impounded for 7 days. The conviction would have been recorded on his driving record only and he would not have incurred a criminal record. In those circumstances, Mr. Chung would not have been charged, let alone convicted, of dangerous driving.  This is the case, even though both the “guilty act” and “guilty mind” elements of the offence are the same regardless of whether there is a crash. The guilty act is approaching a major intersection at three times the speed limit.  The guilty mind is that this behaviour constitutes a marked departure from the conduct of an ordinary reasonable driver. Note that neither element relies on the consequence of a crash.  Yet those that do crash will be charged with dangerous driving and those that do not will not.  

Everyone charged with such a serious offence should contact a lawyer well versed in driving offences and driving law in order to receive proper legal advice and representation. Filkow Law has extensive experience with driving offences. Contact us if you need assistance. 

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This is the second part of my paper on British Columbia’s Drinking and Driving laws. Part one appeared in the last issue of The Verdict (Fall 2013), Trial Lawyers Association of BC.

The Government appears to find it politically advantageous to proclaim that the IRP legislation represents the “strictest impaired driving laws around.” This claim simply isn’t true, at least as a general proposition. Those who have financial resources and don’t depend on driving for their employment are far less penalized by the IRP regime than they would be under the Criminal Code.

They pay for the fines and the programs imposed, and resume driving after three months. It is lower income, rural and/or younger drivers who are more likely to be harshly affected – often for years because they cannot afford to pay for the mandatory post-prohibition programs. Those whose employment requires being able to drive may also suffer inordinately, as they lose their jobs and they and their families suffer serious corollary effects from the loss of income.

The very real and substantial penalties that often flow from the IRP regime would be acceptable if the review process were fair. But it is not. There is virtually no means of challenging the word of the officer regarding what took place at the roadside, and the lack of checks and balances in turn will almost inevitably lead to an arrogant undesirable police culture.

The cynical culture of the IRP regime should not be allowed to perpetuate. There is some hope that the constitutional challenge in Sivia will receive a more comprehensive resolution from the Court of Appeal. In the meantime, we must fight for just outcomes and a fairer regime as best we can with the resources at our disposal.

Also, see the original paper The Unsettling Unfairness of the IRP Regime.

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