
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.
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.
If you need legal assistance, give us a call or simply text us your police, court or driving documents to our respective text line.
Driving Law
- A failure to cooperate with ICBC;
- A false statement;
- A finding that the driver is impaired;
- A motor vehicle-related Criminal Code conviction;
- A misrepresentation of the principal operator or rate class;
- A finding that the driver drove without consent of the owner;
- A conviction for driving while prohibited;
- A failure to comply with the conditions of the driver’s licence;
- A failure to remain at the accident;
- A finding that the driver was in a race;
- A finding that the driver was trading or transporting illicit goods;
- A finding that the driver was attempting to escape arrest or police action;
- A finding that a person permitted a driver to do any of the above;
Dec 12, 2020
What Is and How Do You Get a 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.
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.
Notice of Driving Prohibition in BC
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 in BC, or any driving prohibition, you are welcome to call our office for advice and representation.
Your car insurance is a contract between you and ICBC. That contract comes with a number of conditions that you should know about. Additionally, your optional insurance, such as your collision or comprehensive coverage, form separate contracts with ICBC that also contain separate conditions.
ICBC Can Deny Insurance Coverage
When you get in a motor vehicle accident, ICBC may investigate you and try to deny you insurance coverage. If you are denied coverage, then you will be liable for third-party damages. This means that you have to pay for the damage to any other cars and property and any personal injury claims. These damages are generally quite large.
Also, if you are not covered, ICBC will not pay your claims. This means you will not be paid out for your vehicle nor compensated for your injuries.
If ICBC investigates and determines you have breached your conditions, then ICBC will come after you for everything they paid out in the accident. This can result in massive debt to ICBC and substantial consequences to your driver’s licence and insurance.
ICBC Collision and Comprehensive Coverage: What Constitutes An ICBC Breach?
There are a number of common grounds for breaches:
The above is not an exhaustive list, rather it serves to illustrate the numerous ways in which ICBC can breach your insurance.
An ICBC investigation begins immediately. From the day you get in a motor vehicle accident, you are required to give notice and cooperate with ICBC. Any failure to do so can result in a breach.
If you are in an accident, it is important to get good legal advice even before you report the accident. Or, if you are facing a principal operator breach from ICBC, it is important to receive proper legal advice in your proceedings. An experienced lawyer is important for drafting a proper statement, investigating the circumstances of the allegations, determining whether there is in fact and in law a breach, negotiating with ICBC, preparing a lawsuit if necessary, dealing with any debt, and more.
Apr 15, 2020
When is Excessive Speeding Dangerous Driving?
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.
Is Excessive Speeding A Criminal Offence?
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.
Criminal Speeding In Canada: 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.
Criminal Speeding Offences In Canada: R v. Chung Explained
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.
Charged With A Criminal Driving Offence In BC? Call Filkow Law
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, such as criminal speeding in Canada. Contact us if you need assistance.