Driving Prohibition

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.  

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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The Motor Vehicle Act sets out a legislative scheme by which motorists can have their licenses suspended.

This post sets out the specific provisions of the IRP legislation, explains how the scheme works, and why the IRP regime is often used in lieu of criminal charges in British Columbia.  To fully understand why the IRP regime has displaced criminal proceedings, it is also necessary to understand the British Columbia Crown Counsel Policy that was brought into force at the same time as the IRP regime was implemented in 2010.

Why IRPs are Issued in Lieu of Criminal Charges

At the same time as the IRP regime came into effect, the BC Crown Counsel Office passed a policy that very significantly reduced the number of cases that would be approved for criminal prosecution in British Columbia.  The policy recognizes the significant consequences imposed by the IRP regime on a driver who blows a “fail” or who fails or refuses without reasonable excuse to provide a breath sample into an Approved Screening Device.  Those consequences are discussed in detail below.  In recognition of these penalties, the policy provides that where a driver has been subjected to an IRP and related consequences, a prosecution for an impaired driving offence is generally not in the public interest unless aggravating circumstances apply.  Those aggravating factors are set out in the policy and include:

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We have been receiving lots of calls regarding driving prohibitions recently.  As  a leading BC law firm dealing with driving offences and driving prohibitions, we have handled hundreds of cases where driver’s are facing losing their license under such things as the Driver Improvement Program

In addition to Immediate Roadside Prohibitions (which can be 12 hours, 24 hours, 3 days, 5 days or 90 days in length) , there are several different kinds of driving prohibitions that can be issued by the Superintendent of Motor Vehicles, also known as RoadSafetyBC.

These include the following:

Driver Improvement Program prohibitions pursuant to section 93(1)(a)(ii) of the Motor Vehicle Act for having a poor driving record

Medical Prohibitions from driving pursuant to section 92 of the Motor Vehicle Act

Driving Prohibition under section 93(1)(c) where an officer writes to RoadSafetyBC requesting a license suspension

We most commonly see Notice of Intent to Prohibit letters or Notice of Prohibition letters which communicate an intention to prohibit someone under section 93(1)(a)(ii) but we are versed in reviewing all kinds of prohibitions under the Motor Vehicle Act.  These Prohibition Letters are issued as a result of a person having too many driving offences on their driving record. 

The Driver Improvement Program allows for an escalating series of interventions depending on how many points are on a person’s driving record.  Detailed charts can be found in the Driver Improvement Program Policies and Guidelines (which can be found here 

Essentially, if you incur over 14 points in a two-year period as a Class 5 driver, you will receive a letter that RoadSafetyBC will be prohibiting you from driving.  Alternatively, if you are found guilty of more than one high risk driving offence in a 12 month period, you will also be looking at a driving prohibition (these include using an electronic device while driving, excessive speeding, driving without due care and attention, and driving without consideration). 

As a class 7 driver, if you incur more than 3 points or even one high risk driving offence, RoadSafetyBC will seek to prohibit you from driving. 

You have received the letter, now what?

After receiving either a Notice of Intent to Prohibit or a Notice of Prohibition you have the option at any point to write a letter (with a $100 application fee) to request a review of your driving prohibition.  The Notice of Intent letter will give you 21 days to submit a review.  If you submit a letter during this period, the decision to prohibit you will be suspended until a final decision is made.  If you do not send a letter, or your submission is rejected, you will receive a second letter, the Notice of Prohibition.  You can submit a second review or your first review after receiving the Notice of Prohibition but it will be outstanding.  This means that ICBC can cancel your license or a police officer can personally serve you with the prohibition (starting it immediately) if you do not acknowledge the prohibition by signing it or turning your license into an ICBC office. 

RoadSafetyBC has several options on a review of driving prohibition: they can uphold the prohibition, reduce it in duration (in whole months generally) or cancel the prohibition altogether.  There can be no special exceptions for use of the license (such as work use only). 

There are many considerations that are included in a submission to review a driving prohibition.  Hardship alone will not result in a driving prohibition being cancelled! Even if you will lose your job, RoadSafetyBC can and will uphold a driving prohibition.  RoadSafetyBC will look at your driving record, the hardship a driving prohibition would cause and consider factors included in their policies and guidelines.  We are very experienced with drafting these submissions and how factors are considered and weighed by RoadSafetyBC.  We have drafted hundreds of submissions and are able to tailor a submission that includes your personal circumstances to get the best result possible.  Often, we are even able to assist clients by submitting a second successful review for someone after the initial review they submitted on their own failed. If you are facing a driving prohibition in BC please contact us for assistance

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