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.

Driving Law

Apr 22, 2022

Fatal Pedestrian Vehicle Accidents In BC

In 2020, 1,200 motor vehicle accidents in the Lower Mainland involved pedestrians. 24 of those accidents involved the pedestrian passing away as a result of their injuries. Common contributing factors include speeding, distraction, or impairment. However, not all accidents involve active wrongdoing on the part of the driver. Often, accidents are simply just that, an accident. A common example involves a driver that does not see the pedestrian as a result of heavy rain and darkness in the winter months. However, this does not mean that the driver is not responsible. In these circumstances, the Court has made it clear that while there is no criminal wrongdoing on the part of the driver, wrongdoing could be proven under the Motor Vehicle Act for driving without due care and attention.

Fatal Pedestrian Vehicle Accidents: Legal Implications

The provision for driving without due care and attention can be found under section 144(1)(a) of the Motor Vehicle Act. Although this offence is not criminal in nature it is dealt with in criminal court. This offence is proven when a driver – while attentive to the mechanics of driving – is inadvertently negligent by failing to direct his or her mind to matters (other than driving) which ought to have been directed. For example, Filkow Law commonly represents drivers who are making a legal left turn but strike a pedestrian that is legally crossing the street. The Court has stated that an accident of this kind is not criminal however, the driver should have turned his or her mind to the fact that a pedestrian may have been in the crosswalk prior to making the left turn and if the driver is found not to have turned their mind, they were inadvertently negligent and responsible for driving without due care and attention.

The law of pedestrian fatalities is complex. There is a fine line between being inattentive and being inadvertent.

The potential consequences for being found guilty of driving without due care and attention include a fine, a driving prohibition and, in some cases, a jail sentence.

If you were involved in a motor vehicle-pedestrian accident, call the lawyers at Filkow Law for knowledgeable and experienced advice.

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Mar 17, 2022

Filkow Law Lawyer Anthony Robinson Successfully Argues Insanity Defence

In a newly published decision from the British Columbia Supreme Court, Anthony Robinson of Filkow Law successfully defended his client on a charge of second-degree murder on account of a mental disorder rendering him incapable of knowing that the act was morally wrong. This defence is sometimes known as the “insanity defence”. It is provided for in section 16(1) of the Criminal Code:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

This defence can be divided into three parts: (1) Did the accused suffer from a mental disorder? (2) Did that mental disorder render the person incapable of appreciating the nature and quality of the act? (3) Did that mental disorder render that person incapable of knowing that the act was wrong?

What is a Mental Disorder?

A mental disorder is defined in section 2 of the Criminal Code as a “disease of the mind”. In R v Cooper, a 1979 decision of the Supreme Court of Canada, the majority of the court held that a “disease of the mind” means “any illness, disorder or abnormal condition which impairs the human mind and its functioning”. This definition excludes self-induced states, such as those caused by voluntarily consuming alcohol or drugs.

In this case, the judge agreed that the accused suffered from a mental disorder on the basis of two expert opinions that confirmed that the accused was schizophrenic.

Did that Mental Disorder Render the Accused Incapable of Appreciating the Nature and Quality of the Act?

In some cases, the accused may be so delusional that they are unaware of appreciating their actions. For example, some cases may involve a belief that the accused is fighting aliens or protecting people they are in fact harming.

In this case, the accused made statements to the police stating he wanted to turn himself in and that his intention was to kill the accused. The judge found that the accused was capable of appreciating the nature and quality of his act.

Did that Mental Disorder Render the Accused Incapable of Knowing the Act was Wrong?

In R v Chaulk, a 1990 decision of the Supreme Court of Canada, the majority of the court held that “wrong” means “morally wrong”, as opposed to “legally wrong”. In R v Oommen, a 1994 decision of the Supreme Court of Canada, the court clarified that “the crux of the inquiry is whether the accused lacks the capacity to rationally decide whether the act is right or wrong and hence to make a rational choice about whether to do it or not.”

In this case, the judge held that due to the accused’s schizophrenia and delusional beliefs that he had been poisoned by the victim, he did not have the capacity to make a rational choice about the rightness or wrongness of his act.

Conclusion

Ultimately, Mr. Robinson’s client was found not criminally responsible by reason of a mental disorder that made him unable to know the wrongness of his act.

Contact Anthony Robinson & Filkow Law

In any case, from murder to assault to drug trafficking, it is important to have experienced counsel who are knowledgeable and familiar with the most current law. Anthony Robinson and the Filkow Law team have over 50 years of collective experience and is a well-respected criminal law firm. If you are being investigated or have been charged with any type of criminal offence in Vancouver, Richmond, Surrey, Kelowna, or Abbotsford, contact our office for assistance.

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Feb 08, 2022

Evidentiary Issues for Drinking and Driving Cases

On December 18, 2018, Parliament made significant changes to drinking and driving laws. Filkow Law’s Anthony Robinson wrote and presented a paper explaining these changes to the Trial Lawyers Association of British Columbia on September 24, 2021. This is the fifth instalment of this paper, outlining evidentiary issues for drinking and driving case law examples in BC.

The following is an excerpt regarding evidentiary issues surrounding samples, statements and disclosure:

Admissibility of Result of Analysis s. 320.31(7)

Subsection 320.31(7) states that voluntarily providing a sample of breath, blood, urine, sweat or other bodily substances may be used as evidence against the individual without notice. The individual need not be warned that they did not need to give the sample, or that the sample may be used as evidence against the individual. This provision has yet to be constitutionally challenged.

Admissibility of Statement s. 320.31(9)

Subsection 320.31(9) provides that a statement compelled by law is admissible for the purpose of justifying a demand for breath or other bodily samples. The section states:

(9) A statement made by a person to a peace officer, including a statement compelled under a provincial Act, is admissible in evidence for the purpose of justifying a demand made under section 320.27 or 320.28.

This provision was constitutionality challenged in R v Korduner, 2021 ABPC 83 an Alberta lower court decision. In Korduner, the accused was involved in a motor vehicle accident. On the way to the hospital after the accident, the accused made statements to a police officer in the ambulance. Those statements were compelled under the Traffic Safety Act and were used as evidence against the accused on a charge of impaired operation and refusing a breath demand.

The accused argued that section 320.31(9) of the Code violated sections 7, 8, 9 and 10(b) of the Charter. The accused relied on the “use immunity” principle to argue a conveyance operator involved in an accident is protected by the principle against self-incrimination. Following the precedents in R v White, [1999] 2 SCR 417, R v Powers, 2006 BCCA 454, R v Soules, 2011 ONCA 429, and R v Porter, 2015 ABCA 279 the court in Kroduner concluded s. 320.31(9) violated section 7 of the Charter. The court stated:

[50] Section 7 of the Charter provides protection for individuals who are required to report an accident. I have already found in Voir Dire #2, that the Accused/Applicant’s statements to the officer were statements compelled by section 71 TSA and that the Accused/Applicant had an honest and reasonable belief that she was statutorily compelled to answer his questions, and thus the principles of White were engaged and those statements provided are protected from any use in subsequent criminal proceedings. Per the reasoning of Powers, Soules, and Porter, use of the compelled answers are not admissible in a criminal proceeding for any purpose, including to establish reasonable grounds for a breath sample demand.

[51] Section 320.31(9) specifically allows for such a compelled statement to be used to justify a breath demand. The portion of section 320.31(9) dealing with a statement “compelled under a provincial Act” goes directly against the reasoning in White, Powers, Soules, and Porter. It is clear that the Accused/Applicant’s section 7 Charter rights are engaged. I find the above cited authority is determinative of the issue: that allowing a compelled statement under a Provincial Act, including a compelled statement under the TSA, would infringe the Accused/Applicant’s section 7 rights against self-incrimination in a manner not in accordance with the principles of fundamental justice. The Accused/Applicant has demonstrated that section 320.31(9) both engages section 7 of the Charter and that the impugned provision is causally connected to the prejudice arising from the infringement of the principle against self-incrimination.9

However, since the Alberta Provincial Court lacks jurisdiction to declare legislation unconstitutional, the court limited the unconstitutional finding to the accused. Further, the court clarified that the finding was contingent on a section 1 Charter hearing, which to date has not been heard.

Disclosure

The Crown’s disclosure obligations with respect to the proper functioning of the Approved Instrument have now been codified in s. 320.34(1). The prosecutor must disclose information about any breath samples provided pursuant to subsection 320.28 including:

(a) the results of the system blank tests;

(b) the results of the system calibration checks;

(c) any error or exception messages produced by the approved instrument at the time the samples were taken;

(d) the results of the analysis of the accused’s breath samples; and

(e) a certificate of an analyst stating that the sample of an alcohol standard that is identified in the certificate is suitable for use with an approved instrument.

Pursuant to s. 320.34(2) the accused may apply to the court for a hearing to determine whether further materials should be disclosed regarding the proper functioning of the Approved Instrument. The application must be in writing and set out detailed particulars of the information the accused seeks to have disclosed and the likely relevance of that information to determining whether the Approved Instrument was in proper working order (see s. 320.34(3)). The disclosure application hearing must be held at least 30 days before trial.

If you exceeded the blood alcohol limit while driving and need legal assistance, the lawyers at Filkow Law have over 50 years of experience dealing with all types of criminal law and driving law cases. Please feel free to give us a call.

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Driving Law

Driving While Prohibited

Licence Prohibitions

ICBC Breaches & Accidents

Immediate Roadside Prohibitions

Frequently Asked Questions

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?

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