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.

Call Now

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

Jun 19, 2021

Do You Have the Capacity to Consent After Consuming Alcohol? – R v. GF

Sexual Assault Law in the Supreme Court – R v. GF

What role does alcohol play in assessing consent? The Supreme Court of Canada (SCC) recently explored this issue in R v GF.

In R v GF, 2021 SCC 20, the SCC considered the relationship between consent and the capacity to consent to sexual activity. Ultimately, the SCC ruled that the capacity to consent to sexual activity and actual consent do not need to be compartmentalized. Capacity is simply a precondition of consent.

The Facts in R v GF

The accused couple (G.F. and R.B.) was found guilty of sexually assaulting C.R. while on a camping trip. On the final night, C.R.’s mother arranged to have C.R. sleep in the accused couple’s trailer. That night that the two accused and C.R. engaged in sexual activity.

All parties agreed that the sexual activity happened. However, they disagreed on whether C.R. consented to it. C.R. said she drank around 8 to 10 shots and did not consent. G.F. said C.R. had a beer and two half-ounce shots and did consent.

The trial judge believed C.R. and disbelieved G.F. He found that the sexual activity occurred while she was too drunk to consent and that she did not consent.

The Court of Appeal’s Response

The Court of Appeal ordered a new trial because the trial judge erred on two grounds:

He did not explain why he found C.R. was too drunk to give consent; and
He should have considered the issue of consent separately from the issue of capacity.

In his decision, the trial judge concluded:

[72] Section 273.1(2)(b) of the Criminal Code indicates that no consent is obtained where the complainant is incapable of consenting to the activity. This applies in instances where a complainant is intoxicated.

[73] Accordingly, I find the two accused guilty of sexual assault as charged.

Because the trial judge did not assess at what point C.R. would have been too drunk to give consent, the Court of Appeal found he misleadingly suggested that any level of intoxication is enough to negate consent.

The Court of Appeal also held that the consent and capacity analysis should be separate. Thus, the trial judge should have first asked whether C.R. consented to the sexual activity, then asked whether her level of intoxication invalidated the consent.

The Supreme Court of Canada Finds Capacity is a Precondition to Consent

Karakatsanis J., for the majority of the SCC, overturned the Court of Appeal and reinstated the convictions. While the Court of Appeal looked at alcohol and incapacity as factors that render consent ineffective, the SCC rejected the idea that a person can consent but have his or her consent be ineffective due to alcohol or incapacity. As a matter of logic, a person must be capable of consenting to provide consent.

The SCC outlined a four-part test for when a person is capable of consent. The person must be capable of understanding all of the following:

the physical act;
the sexual nature of the act;
the identity of the sexual partner(s); and
that he or she may refuse to participate.

If the Crown proves the person was incapable of understanding any one of the above beyond a reasonable doubt, the complainant is incapable of consent, and therefore did not consent.

On the issue of the trial judge’s reasons, the SCC reiterated that an appellate court only needs to understand the factual basis for the decision. Poorly expressed reasons did not give rise to an appeal. In this case, while it would have been preferable for the trial judge to clearly identify what aspect of consent he was referring to, his failure to do so was not an error.

What Does This Mean For Sexual Assault Law in Canada?

The R v GF ruling has two implications for sexual assault law in Canada. First, consent and capacity are essentially one concept, where capacity is a precondition to consent. Second, a trial judge does not need to give descriptive reasons about consent and capacity as long as the factual basis for the decision is clear from the record.

Read Now

May 05, 2021

Can the Police Unlock Your Phone?

A question that comes up more and more in recent years is, can the police unlock your phone if you’re under arrest? The development of technology, in particular the ubiquitous presence of smartphones, creates issues not previously dealt with by the courts and legal scholars. Requiring someone to provide passwords to the police is one such example of a novel legal problem. The Ontario Court of Justice in R v Shergill recently answered whether the court, through an assistance order under section 487.02 of the Criminal Code, can lawfully require an arrested individual to unlock encrypted data to aid an investigation.

Can The Police Force You To Unlock Your Phone In Canada?

Police can and will confiscate your phone if you are arrested. If a person’s device is unlocked upon arrest, the police may in some circumstances lawfully retrieve stored data. However, when the device is locked, the police may not be able to access any information. Lawful seizure of the device alone—without access to stored data—provides little to no investigative value. In limited circumstances, an assistance order may force an individual to participate in the police search so that the investigation is more meaningful. According to Shergill, this power does not extend to an accused person.

This is largely because the data is not accessible without participation of the accused. Trying to obtain encrypted information any other way would expend too many resources or may even destroy the seized device. Although the password itself may not be used as evidence against someone, the inculpatory effect of providing encryption keys in and of itself makes password compulsion unconstitutional. An assistance order against an accused violates the person’s rights including the presumption of innocence, right to silence and right against self-incrimination.

Individual Rights vs Public Interest

The court in Shergill also distinguished password compulsion from other forms of orders related to the creation of physical evidence (e.g., DNA and breath samples). Physical evidence can be obtained through other means. An encryption key, however, requires communicating a thought in the person’s head. The key cannot be revealed unless the person utters the characters. In Canada, the protection of freedom of speech extends to encryption keys, even when it may or may not contain information vital to police investigation. Balancing the public interest in prosecution against an accused’s liberty interests, Shergill sided with protecting individual rights.

This decision has not been appealed or otherwise challenged by other jurisdictions. With emerging technological advancements, the Canadian courts have made it clear that while the police may acquire search warrants against individuals and seize items, access to information within the seized devices are not automatic.

For more information on search of password-protected devices, or to obtain effective legal representation in unlawful search and seizure, contact us at Filkow Law – 604-558-8778. If you find yourself in need of a criminal defence lawyer, call immediately.

Read Now

Jan 09, 2021

What Happens If You Breach Bail Conditions?

Recently, the Supreme Court of Canada issued a landmark decision relating to the imposition of conditions on release (i.e., bail conditions) and breaches of those conditions.

Generally, to be convicted and found guilty of a criminal offence a person must commit a wrongful act – the actus reus – and must have the requisite guilty mind to commit that wrongful act – the mens rea. However, the law recognizes that there are two types of mens rea – subjective and objective.

Subjective mens rea is where a person is responsible for committing the crime if they intended, knew, or were aware of what might happen because of their wrongful act.

Objective mens rea is where a person did not mean to do anything wrong but is nevertheless responsible for committing the wrongful act. In other words, objective mens rea looks at what an ordinary or reasonable member of society would have done in the same situation.

Breaking Your Bail Conditions: R. v. Zora Explained

Prior to the decision in Zora, courts throughout Canada disagreed on the mens rea to apply to breaches of bail conditions. However, in Zora, the SCC confirmed that the mens rea to be applied for breaching a bail condition was subjective. This means that the Court, in deciding the guilt or innocence of the accused person alleged to have breached a bail condition, must look at what that person actually knew or was aware might happen as a result of committing the breach.

In addition to resolving the issue of objective versus subjective mens rea for breaches of bail conditions, the Supreme Court took the opportunity to revisit the purpose and imposition of bail conditions. For decades prosecutors would seek, and Judges would consider and often impose many conditions to an accused’s person release or bail. The Supreme Court of Canada in Zora found this was the wrong practice and has transformed this unjust tradition. Rather, The Supreme Court found that normally there should not be any conditions imposed on bail. There are many reasons for this including an accused’s presumption of innocence, unnecessary restrictions on a person’s liberty and the impact of pre-trial conditions on vulnerable populations. In other words, the default form of bail for most crimes is release on an undertaking. Additional bail conditions can only be imposed if they are clearly articulated, minimal in number, necessary, reasonable, the least onerous in the circumstances, and linked to the risks regarding the grounds for detention under section 515 of the Criminal Code. These include securing the accused ‘s attendance in court, ensuring the protection or safety of the public and maintaining confidence in the administration of justice.

The Zora case has changed things. Bail conditions including no contact, no go, reporting, no alcohol, curfew and any other conditions must be justified and necessary.

For more information on allegations of breaching bail conditions or for assistance in changing bail conditions, contact Filkow Law to speak with one of our experienced lawyers.

Read Now

Pages: 123456789101112131415161718192021222324

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

Contact