Driving Law

Filkow Law is a leading driving law firm well-known for its exceptional results on all aspects of driving law and frequently consulted by legal professionals for advice. A driving prohibition can have devastating effects on one’s employment and family and can also have serious criminal, financial and insurance consequences.

The lawyers at Filkow Law have over 50 years of driving law experience and are highly regarded for their knowledge, expertise and excellent representation.

Driving is one of the most highly regulated areas of the law. Driving offences range from having a traffic ticket to an immediate roadside prohibition to dangerous and impaired driving to serious car accidents and pedestrian fatality cases. Driving prohibition can have devastating effects on one’s employment and family and can also have criminal and insurance consequences.

The lawyers at Filkow Law have successfully dealt with thousands of driving prohibition cases. If you are facing a driving prohibition, immediate roadside prohibition or a charge of driving while prohibited, call Filkow Law today.

For more information on our highlighted practice areas, click on any of the links below.

Driving While Prohibited

Criminal Code
Motor Vehicle Act

Licence Prohibitions

Notice of Prohibition
Notice of Intent to Prohibit
Driver Improvement Program

ICBC Breaches & Accidents

Drugs and alcohol
False statements
Fail to cooperate
ICBC Debt

Immediate Roadside Prohibitions

Fail
Refusal
Warning

Why did I get a driving prohibition from RoadSafetyBC?

RoadSafetyBC may prohibit you for a number of reasons, including the following:

you have an “unsatisfactory” driving record;
a police officer forwarded a “high-risk driving incident report” to RoadSafetyBC;
RoadSafetyBC determines you are medically “unable” or “unfit” to drive; and
for any other reason RoadSafetyBC considers to be in the public interest.

The most common reason for a prohibition is having an “unsatisfactory” driving record, which usually results from having too many points or high-risk offences.

What is the difference between a fully-licensed driver (Class 5) and a new driver (Class 7)?

Class 7 drivers are subject to certain restrictions. For example, new drivers cannot use electronic devices, have any alcohol or drugs in their body while driving, or have too many passengers. Learners cannot drive at all unless they have a properly qualified supervisor.

RoadSafetyBC treats Class 7 drivers who incur driving violations much more severely than experienced drivers.

What if I have an international driver’s licence?

RoadSafetyBC treats international drivers as new drivers. Because of this fact, a driver with an international licence will scrutinized more closely than a driver with a full BC driver’s licence. Even one ticket may result in a driving prohibition.

I have my full licence (Class 5). How many points am I allowed before I will be prohibited?

Fully-licensed (class 5) drivers who incur 15 or more points in a two-year period will likely be prohibited.

Fully-licensed drivers who are found guilty of two or more high-risk driving offences in a 12-month period, will likely be prohibited from driving – even if they have fewer than 15 points.

I am a new driver (Class 7). How many points am I allowed before I will be prohibited?

New drivers (class 7) who incur more than three points or even one high risk driving offence will likely be prohibited from driving.

What is considered a high-risk driving offence?

RoadSafetyBC designates the following offences as “high-risk”:

using an electronic device while driving;
excessive speeding;
driving without due care and attention; and
driving without consideration.

Because these offences are designated high-risk, it is particularly important to get advice from an experienced lawyer about the consequences.

I have a letter referring me to the Driver Improvement Program. What does that mean?

The Driver Improvement Program is RoadSafetyBC’s process of reviewing driving records and issuing, warning notices, probation notices and driving prohibitions. You can find more information on the program here. Learn more about driving prohibitions here.

I received a Notice of Intent to Prohibit. What does this mean?

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you from driving for a period of time. The amount of time is specified in the letter. Learn more about how you could receive a driving prohibition here.

I have received a Notice of Intent to Prohibit Letter. What can I do?

The Notice of Intent letter gives you 21 days to submit a review of the intended prohibition. If a letter is submitted during this period, the decision to prohibit will be suspended until a final decision is made. We strongly recommend speaking to a lawyer to discuss your options.

If RoadSafetyBC already intends to prohibit me from driving. Why should I submit a request to review my prohibition within 21 days?

RoadSafetyBC may consider your hardship and may shorten or reduce your prohibition. Without a letter, all RoadSafetyBC sees is your driving record. Further, if you provide your submissions within the 21-day timeline, your prohibition will be put on hold until a decision is made. This may give you some more time to prepare for the prohibition.

I received a Notice of Prohibition. What does this mean?

A Notice of Prohibition advises you of RoadSafetyBC’s decision to prohibit you from driving for a period of time. The amount of time is specified in the letter.

How is a Notice of Prohibition different from a Notice of Intent to Prohibit?

A Notice of Intent to Prohibit advises you of RoadSafetyBC’s intention to prohibit you and provides you with 21 days to respond. On the other hand, a Notice of Prohibition advises you that RoadSafetyBC has prohibited you from driving, however the prohibition does not commence until you acknowledge the prohibition by signing it and returning it to RoadSafetyBC, or until a police officer serves you with it. In other words, the prohibition begins on the day you sign it and send it in or the day a police officer serves you.

I received a Notice of Prohibition but I am still driving. What will happen?

If you do not acknowledge your Notice of Prohibition, a police officer may serve you with the prohibition. If you are driving at the time the officer serves you, the officer may use their discretion to give you time to drive home before your prohibition commences.

What are the possible outcomes after I send my letter?

RoadSafetyBC will make one of three decisions: they will uphold the prohibition, reduce it in duration, or cancel the prohibition altogether. If you are prohibited by RoadSafetyBC, you are prohibited from driving for all purposes. RoadSafetyBC does not make exceptions that allow you to drive for work or medical reasons. Learn more about driving prohibitions here.

What considerations does RoadSafetyBC make when reviewing my submission?

RoadSafetyBC will look at a number of factors, including the following:

your driving experience;
the type and class of licence(s);
the seriousness of the infraction(s) as they relate to public safety or property damage;
the period of time since the infraction or between infractions;
any previous warnings, probation periods or driving prohibitions;
any previous lenience shown by adjudicators;
penalty points; and
driving improvement shown.

Hardship alone will usually not result in a driving prohibition being cancelled.

This is the first driving ticket I have ever received, and I am a good driver. Should I bother disputing it?

There are a number of reasons to dispute your first ticket. If you are a new driver, you can be prohibited from driving after a single ticket. If you are an experienced driver, you can be prohibited for as few as two tickets. 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. All entries on a driving record are permanent.

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604-558-8778

Toll-Free Number

1-855-558-8778

Text Us

604-721-5770

If you need legal assistance, give us a call or simply text us your police, court or driving documents to our respective text line.

Vancouver

450 SW Marine Dr, Suite 510
Vancouver, BC V5X 0C3

(604) 558-8778

Surrey

13711 72 Avenue
Surrey, BC V3W 2P2

(604) 588-2800

Kelowna

1638 Pandosy Street #20
Kelowna, BC V1Y 1P8

(250) 860-2744

Abbotsford

30125 Automall Dr #107A
Abbotsford, BC V2T 6Y9

(778) 769-3388

Richmond

1611-7468 Lansdowne Road
Richmond, BC V7C 0B7

(604) 278-8100

Driving Law

Aug 08, 2018

Drugs and Music Festivals/Raves

A 19-year old boy, David, has bought tickets to a music festival. He is excited to go with his friends from school. They’ve all just finished their first year of university and want to celebrate during the summer. Someone in David’s group chat suggests they pick up some MDMA (Molly) to try. None of the group has done any drugs before, but they are considering experimenting. One of David’s friends buys the drugs and brings them to the festival.

At the festival, David’s friend leaves him with the drugs and goes to the washroom. David is left on his own. He relaxes and enjoys the weather. David looks around and sees an attractive girl around his age smiling at him. She walks over and starts talking to him. After some small talk, she asks David if he has any Molly. David is slightly put off, but he replies that he does. The girl says she forgot to bring hers and asks if she can buy a couple of tablets for herself and her friend. David says maybe later and looks to see where his friend went. The girl is insistent that she wants to feel good now and persists in asking for the drugs. David doesn’t put up a fight and agrees: he produces two tablets of Molly. The girl takes the drugs, gives David some money, and leaves. A couple of minutes later, David is arrested for the possession of drugs and the possessing drugs for the purpose of trafficking.

David was clearly not a drug dealer or trying to sell drugs for any commercial gain. David was 19-years old. He had never used drugs in his life. He had no intention of selling drugs. He wanted to have a good time with his friends at the music festival. The attractive girl was one of several undercover cops who were approaching young boys to buy drugs. Even though he didn’t plan on selling drugs, David sold some drugs to her. As a result, he is now facing a criminal record for drug charges for the rest of his life.

BC is home to an impressive number of music festivals: Breakout, FVDED in the Park, Basscoast, Shambhala, Squamish, SKOOKUM. Every year, there are dozens of people like David who are arrested at music festivals. They generally fall prey to substantial undercover operations planned and executed by the police.

On the one hand, it is important to be careful and avoid putting yourself in such a situation. On the other hand, it may seem offensive that the police are using their extensive training and resources to approach and arrest kids at music festivals for selling drugs. What can David do now that he has been charged? Is the undercover operation legal?

What is Entrapment?

Entrapment, broadly speaking, is a defence available when a law enforcement officer induces someone to commit a criminal act, when that person would not have otherwise committed that act. Canada has adopted its definition from a US Supreme Court Case called Sorrells v United States (1932), where it defined entrapment as follows:

The conception and planning of an offence by an officer, and his or her procurement of its commission by one who would not have perpetrated it except for the trickery, persuasion or fraud of the officer.

Entrapment is not a substantive defence, but rather is related to preventing the abuse of process. Courts have the jurisdiction to “withhold its processes from the prosecution on the basis that such would bring the administration of justice into disrepute” (R v Amato, [1982] CarswellBC 661 (SCC) at para 68; R v Mack, [1988] CarswellBC 701 (SCC) at para 73). According to the Supreme Court of Canada, the concern is that the executive branch of government, through the deception and trickery of its officers, are abusing the legal process and the judiciary to obtain convictions. Allowing cases to be prosecuted based on evidence that was obtained in this manner would undermine the public’s confidence and faith in the criminal justice system. As a result, the remedy is generally a stay of proceedings.

The leading case on entrapment is the Supreme Court of Canada decision in R v Mack, [1988] CarswellBC 701. Mack establishes the defence of entrapment in Canadian law. Procedurally, entrapment is only raised as an issue after the Crown has proved its case beyond a reasonable doubt. This gives the accused a chance to be acquitted before raising the defence of entrapment. If the Crown does prove its case, then the burden of proof falls on the accused to prove entrapment on a balance of probabilities (Mack at para 166).

When Can the Police Entrap You?

First, the general rule from Mack is that the police can only provide an opportunity to a person to commit a crime when the officer has a reasonable suspicion that the person is already engaged in a particular criminal activity. In other words, officers cannot engage in “random virtue testing”. This is where an undercover officer—with no reasonable suspicion of criminal activity—will “test” a person’s virtue by giving them a clear opportunity to commit a criminal act, such as selling drugs. Without an existing and reasonable suspicion that you are engaged in selling drugs, for example, this testing is impermissible.

However, the exception is when the police are involved in a bona fide investigation where they reasonably suspect criminal activity is occuring (Mack at para 122; R v Barnes, [1991] CarswellBC 11 (SCC) at para 23). When there is such an investigation, the police can approach any person in the area with the opportunity to commit the particular offence being investigated. Moreover, BC Provincial Court has held that statistical evidence is not required to establish reasonable suspicion (R v Chu, 2009 BCPC 76 at para 28).

The police can therefore engage in random virtue testing in two situations:

The person is reasonably suspected to already be engaged in criminal activity.

The physical location is reasonably suspected to be a place where criminal activity is occurring.

However, even if either of these situations are met, a police officer still cannot go beyond providing an opportunity to commit a criminal act (Mack at paras 122-123). That is, they cannot go so far as to induce the criminal act. The SCC identifies several factors that can assist in determining when the police have crossed the line into inducing criminal acts. For example, the type of crime, the type of inducement used, the timing, the persistence, exploitation, proportionality, and whether an average person would be induced (Mack at paras 139-148).

Case law generally does not analytically go through every factor, but the factors in Mack underpin a judge’s decision. For instance, in R v El-Sheikh-Ali, [1993] CarswellOnt 4337 (Ont Ct J), the judge held that the undercover officer went too far in trying to lure the accused with a sexual relationship and deliberately presenting herself as a “sex object” (El-Sheikh-Ali at para 20). The timing of the inducement here was before the drugs were sold, the inducement used was clearly sexual, and there was persistence. Additionally, the accused was a vulnerable immigrant who had been divorced for six years. His ex-wife and two children were also barred from entering Canada from Lebanon, he therefore admitted to being lonely and looking for female companionship.

Despite the decision in El-Sheikh-Ali, suggestive or flirty behaviour by an undercover officer is generally permissible and not sufficient to constitute an inducement.

Another case in Ontario provides some clarification of when police go beyond providing an opportunity to commit a crime and into inducing the criminal act itself. In R v S (J), [2001] CarswellOnt 68 (Ont CA), some undercover officers approached some young concertgoers at a restaurant near the venue. The targeted youth was found to be naive, hesitant, and not selling for profit. He was hesitant and unsure of what to do with the requests to buy marijuana. He looked to his friends for support. He was found to have sold the drugs out of goodwill to a fellow concertgoer. It was found that he would not have sold the drugs if not for the officers’ persistent requests. The court held that the actions of the officers went beyond providing an opportunity to commit an offence and into inducing the commission of the offence.

Entrapment at Music Festivals

The case law on entrapment at music festivals is limited. In R v MacLeod, 2011 BCSC 1812, the BC Supreme Court held that a music festival could be the subject of a bona fide inquiry. In other words, a music festival could be reasonably suspected of being a place where criminal activity is occurring, namely drug trafficking. In support of their decision, the court made an analogy to raves. They cited prior cases where sting operations were held at Pacific Coliseum during raves (R v Yee, 2009 BCPC 369; R v Chu, 2009 BCPC 76). In both those cases, the defence of entrapment was raised, and in both cases it was dismissed because the location was held to be the subject of a bona fide investigation.

Conclusion

The current law is not favourable to accused persons caught by these undercover operations. While entrapment is available as a legal defence, it is exceedingly difficult to prove. Generally, the police set up an investigation for criminal activity prior to executing their undercover operations. Since statistical evidence is not required, it can be easy for the Crown to prove that there is a bona fide investigation of criminal activity in a particular location.

Once an investigation has begun in a particular location, the police may legally pursue random virtue testing of any person in that location. The only limit remaining on the police is the grey area between presenting an opportunity to commit a crime and actually inducing the person to commit a crime. Case law suggests that only the more egregious examples of police conduct will result in the defence of entrapment being successful, such as offering sexual relations or browbeating a naive youth who had no prior intention to sell. It is unlikely that this breaches will be found in most cases, such as David’s above. In R v Chu, 2009 BCPC 76, the judge cited two cases where the officer’s persistence and dress, as well as the accused’s reluctance and lack of desire to sell were “not sufficient to support the claim of entrapment” (Chu at para 34). In these two cases, the undercover officers were at raves asking for ecstasy. In both cases, the accused acquiesced, sold to the officers, and the defence of entrapment was dismissed.

It may be helpful to try and distinguish a music festival from a rave, but MacLeod has held that a music festival can also be the subject of a reasonable suspicion of drug trafficking.

Of course, an individual’s circumstances may be so severe that the defence of entrapment becomes available. The Mack factors of when an officer’s conduct goes beyond providing an opportunity will have to be examined with respect to each case. However, in general, entrapment is a defence that will rarely be successful unless there is a substantial error by the police.

If you feel you have been entrapped by a police investigation please contact us for assistance.

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Jun 15, 2018

Bill 17 and the Changes to the Motor Vehicle Act

Cannabis legalization is on the horizon for Canada. There have been many announcements regarding the distribution and possession of marijuana but an additional matter is the impact that this will have on impaired driving. There are pending changes on the federal level but the BC government is proposing to introduce a whole new scheme creating Immediate Roadside Prohibitions for driving while impaired by marijuana and other drugs.

There is much uncertainty about this as there is no established system or method for detecting impairment by marijuana. There are indications that there may be technology in the future that will allow for the presence of marijuana via a saliva test but it is unknown how effective this will be. This leaves police officers with limited options roadside to deal with drivers that they believe are high. Previously, it was common for police officers to issue a 24-hour prohibition for drugs in cases where the officer had reasonable and probable grounds to believe that a drivers ability to operate a vehicle was impaired by drugs. This did not have a review procedure in place.

Often times it involved the administration of the Standard Field Sobriety Test or the Drug Recognition Exam by an officer trained in these techniques. Both tests have their issues in that they often can result in false positives. Even blood tests can make it difficult to determine if someone is impaired by marijuana as there is little scientific information available on how much THC needs to be detected in someone’s blood before they are actually impaired. THC can linger in someone’s blood for days or weeks, long after someone is no longer affected by it. This is especially true for medical marijuana users.

Driving While High: Changes To Impaired Driving Law In BC

The proposed changes create two new driving prohibitions in BC. They will expand upon the 12-hour prohibition for N and L drivers (Class 7 and 7L licenses). Currently, Class 7 drivers cannot have any alcohol in their system while driving. The proposed legislation will expand that to include drugs as well, detected by a “drug screening device”. There is no indication of what these devices will be. This is concerning as 12-hour prohibitions have no review procedure in place.

The recourse to dispute one is via judicial review in the Supreme Court of British Columbia, something that is not accessible to the average person and expensive to retain legal counsel for. 12-hour prohibitions also result in RoadSafetyBC prohibiting a Class 7 driver for a longer period, usually by several months. If a driver refuses to comply with a demand to provide a sample for a “drug screening device” they will also receive a 12-hour prohibition. It is concerning that a lengthy driving prohibition in the length of months will result from a prohibition with no established review procedure.

The more serious offence that is being created is a 90-day immediate roadside prohibition for drugs, similar to the current roadside prohibition available for alcohol. This provides three ways for a police officer to issue you a 90-day prohibition; a blood test showing above a specified level in your blood within 2 hours of driving, or having a combination of a specified level of alcohol and drugs in your blood.

These 90-day reviews will have specified grounds of review. These include consuming the drugs after ceasing operation of the vehicle (and that the driver had no reasonable expectation that they would be required to provide a sample of blood), that the person was not impaired by drugs or a combination of drugs and alcohol and the results of the evaluation were due to a medical condition. Much alike the 90-day alcohol immediate roadside prohibitions for alcohol, the demands and testing will mirror the provisions in the Criminal Code.

Given the forthcoming changes to the Criminal Code on impaired driving regarding alcohol and drugs, these are likely going to be contested in court. The taking of blood samples is an intrusive means and not easily accomplished roadside by police officers. Furthermore, current drug impairment testing procedures have many options for false positives and inaccurate results.

Impaired Driving In BC? Call Filkow Law

This will be an interesting development in driving law and will likely result in extensive legal disputes. The tests that are yet to be established will be fundamental to this regime, and its fairness as there is no current effective manner to detect drug impairment. As we are familiar and successful in both criminal impaired driving and the existing IRP scheme, we look forward to assisting our clients with defending charges under this pending regime. If you need assistance with an impaired driving case in BC, call Filkow Law today.

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Jun 05, 2018

Filkow Law Voted Richmonds Best Law Firm for 2018

Filkow Law is pleased to be voted as the Best Richmond Law Firm by readers of the Richmond News for 2018. We also had the pleasure of being voted the Best Richmond Law Firm for 2017, 2016 and 2015. The Richmond location is the longest standing law office location but now Filkow Law has expanded to Vancouver, Surrey and Kelowna.

Filkow Law is well known for its formidable strengths with a highly accessible culture, very skilled advocacy and a signature strategic approach to every case. If English is not your first language, Filkow Law can accommodate you. The languages spoken at the firm are Mandarin, Cantonese, Punjabi, Hindi, French, Russian, Bosnian and German.

Filkow Law has a reputation for producing exceptional results for their clients. The firm’s main focus is criminal defence with particular emphasis on driving, drug, fraud and assault cases but they are now taking on personal injury cases. If you have a legal matter you need assistance with please contact us.

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Driving Law

Driving While Prohibited

Licence Prohibitions

ICBC Breaches & Accidents

Immediate Roadside Prohibitions

Why did I get a driving prohibition from RoadSafetyBC?

What is the difference between a fully-licensed driver (Class 5) and a new driver (Class 7)?

What if I have an international driver’s licence?

I have my full licence (Class 5). How many points am I allowed before I will be prohibited?

I am a new driver (Class 7). How many points am I allowed before I will be prohibited?

What is considered a high-risk driving offence?

I have a letter referring me to the Driver Improvement Program. What does that mean?

I received a Notice of Intent to Prohibit. What does this mean?

I have received a Notice of Intent to Prohibit Letter. What can I do?

If RoadSafetyBC already intends to prohibit me from driving. Why should I submit a request to review my prohibition within 21 days?

I received a Notice of Prohibition. What does this mean?

How is a Notice of Prohibition different from a Notice of Intent to Prohibit?

I received a Notice of Prohibition but I am still driving. What will happen?

What are the possible outcomes after I send my letter?

What considerations does RoadSafetyBC make when reviewing my submission?

This is the first driving ticket I have ever received, and I am a good driver. Should I bother disputing it?

Criminal Law

Driving Law

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