People often wonder whether driving while prohibited is considered a criminal charge. The answer is both yes and no.
The charge of driving while prohibited can be prosecuted in two different ways and the manner in which the case can be prosecuted entirely depends on the reason for your driving prohibition.
Criminal Code vs. Motor Vehicle Act driving prohibition
If you are prohibited from driving as a result of a Criminal Code conviction like if you were found guilty of impaired driving and you received a one-year driving prohibition, the prohibition applies across Canada.
When you receive a Criminal Code prohibition, if you violate it, it’s a criminal offence.
If your driving prohibition is a result of something related to the Motor Vehicle Act, for example, too many points on your driver’s license, then your driving while prohibited is a provincial offence and you don’t get a criminal record for it.
The difference between the two is important to understand. The consequences of driving while prohibited under the Criminal Code are much more severe and will result in an even further criminal conviction, a further driving prohibition and the potential for significant jail time.
Under the Motor Vehicle Act, a provincial conviction for driving while prohibited includes a mandatory 1-year prohibition in BC and a minimum $500 fine. For a second or subsequent offence, the consequence is a minimum of 14 days in jail.
How to determine if you’re Driving while Prohibited is a criminal charge
A complicating factor in determining whether or not you’re driving while prohibited charge is a criminal charge depends on whether or not your prohibition was triggered as a result of a criminal act.
You can be charged with driving while prohibited under the Criminal Code, even if you were originally prohibited from driving under a provincial statute, like the Motor Vehicle Act.
This happens if the provincial prohibition is something triggered as a result of a Criminal Code conviction.
A good example of this is the automatic prohibitions that flow under the Motor Vehicle Act for criminal convictions. Under Section 99 of the BC Motor Vehicle Act, if you’re convicted of a criminal driving offence, you receive an automatic without notice, mandatory 1-year driving prohibition for the first offence.
If you’re convicted on a second occasion, within a 10-year period, you receive an automatic, without notice, 3-year prohibition, under the Motor Vehicle Act section 232.
This is not a prohibition that a judge imposes under the Criminal Code, it happens by operation of law.
For a third conviction, you will be prohibited from driving indefinitely. In those circumstances, you can be charged with driving while prohibited under the Criminal Code.
And because the prohibition was triggered as a result of a Criminal Code conviction, it amounts to a Criminal Code offence even though the prohibition is a provincial prohibition.
This is very difficult for a lot of people, and sometimes even prosecutors, to understand.
In terms of one’s own liability, there is a big distinction between a Criminal Code prohibition and a Motor Vehicle Act prohibition.
But understanding the true outset of the prohibition requires an understanding of the interplay between the Criminal Code and provincial motor vehicle statutes.
Being charged with both
Typically, when you receive a driving while prohibited charge, the documents that the police give you, will show you the section that they intend to charge you under.
Crown prosecutors are the ones who ultimately decide what they are going to charge you with. So even if your documents from the police suggest you’re prohibited under the Motor Vehicle Act, the prosecutor can decide to charge you criminally. In fact, it’s not uncommon to see charges under both.
Because they are different pieces of legislation, with different sections and elements, you can be convicted under both the Criminal Code and the Motor Vehicle Act.
This is why it’s important if you’re facing a driving prohibition and you have had a previous criminal conviction related to driving, that you seek legal advice at the earliest opportunity. This will help you to understand the true extent of your jeopardy, and whether you may be facing a driving while prohibited conviction under the Criminal Code,
the Motor Vehicle Act, or both.