The Motor Vehicle Act does not set mandatory minimum penalties for every offence. However, it does set out minimum penalties for many of them.
The mandatory minimum penalties are often something beyond people’s ability to afford. For example, for excessive speeding, the penalty is a $368.00 fine. If the speed limit is exceeded by 60 km/h or more, the fine increases to a mandatory minimum of $483.00.
For many families in BC, these huge costs are the difference between putting food on the table and not.
Similarly, for Driving While Prohibited, the minimum penalty is a one-year driving prohibition and a $500.00 fine.
For this reason, many clients come to us asking if they can receive a sentence that is below the mandatory minimum that has been set out in the Motor Vehicle Act. The answer to that question is not simple, and in all honesty, it depends on the situation.
If you are found guilty as charged with the offence, the judge has no choice about the sentence to impose. You will receive the mandatory minimum penalty. It does not matter if the imposition of a one-year driving prohibition will cause you to suffer hardship, or if you cannot afford to pay the fine, there is no discretion in relation to the penalty where there is a mandatory minimum penalty.
Many people believe, as do we, that mandatory minimum penalties are inherently unconstitutional and unjust. They are inconsistent with the principles of sentencing. These principles set out the factors that judges and Judicial Justices deciding matters are supposed to consider. In all sentencing cases, judges are supposed to engage in a highly individualized inquiry to determine the appropriate sentence for each individual.
An appropriate or fit sentence is supposed to be based on a number of factors, including denunciation, deterrence, rehabilitation, the need to separate the offender from the community and the need to promote a sense of responsibility in the offender to acknowledge the harm done by the unlawful act.
A mandatory minimum sentence does not allow a judge to engage in this individualized exercise. In fact, it forces a judge to impose a sentence that may not be fit and appropriate having regard to all the circumstances.
Sentences like high fines and lengthy driving prohibitions could also have the unintended effect of punishing innocent people or people who have families, where the person being sentenced is the sole source of financial support for the family. Taking food off one’s table seems hardly a fair consequence for a single instance of speeding. And yet, the Motor Vehicle Act would have this be the punishment.
A mandatory punishment of fines could therefore punish a person’s family members, even though their family members have nothing to do with the fact that they committed an offence. This is unjust in our view.
Nevertheless, most minimum penalties in the Motor Vehicle Act have not been the subject of constitutional challenges and would likely not fail under constitutional challenges. This is because mandatory minimum penalties are typically only vulnerable to constitutional challenge where they impose true penal consequences. A fine or a driving prohibition simply falls short of that.
That being said, a judge does have discretion to impose a sentence below the mandatory minimum if the judge finds the penalty is unconstitutional. To challenge the constitutionality of a penalty you must show it is disproportionate, and that it constitutes cruel unusual punishment.
It would be a rare case in which simple fine, where time to pay can be ordered, would be likely to be found unconstitutional.
A driving prohibition is much more likely to be found unconstitutional, but even then, it would be a significant uphill battle to launch a constitutional challenge. Historically, constitutional challenges to mandatory minimum lengths of driving prohibition have not been successful due to the lack of concrete evidence that a driving prohibition is cruel or
unusual. After all, courts and government consider driving to be a privilege and not a right. Loss of a privilege is generally just not viewed as cruel or unusual.
So how do you avoid a mandatory minimum sentence for a Motor Vehicle Act offence? The most common way to avoid the mandatory minimum penalties is by having your matter resolved with a plea to something lesser than the offence you were charged with.
For example, if you have been charged with driving while prohibited, you may be able to negotiate with the Crown to have the charge pled down to something like driving without a valid license, or failing to produce a driver’s license. These offences do not carry the same mandatory minimum penalties as prohibited driving.
For excessive speeding or even regular speeding offences you may be able to negotiate a plea to an offence that has fewer penalty points or a lower fine. This would typically avoid the consequences that most drivers are trying to escape when dealign with these charges.
Unfortunately, not all prosecutors or police officers are willing to negotiate and negotiations themselves can be tricky. Understanding the strategy that needs to be used to negotiate with a police officer or particular prosecutor is complex and usually something the requires years of experience.
So if you are concerned about being given a mandatory minimum penalty for any offence under the Motor Vehicle Act, it is best to contact an experienced driving lawyer who can help you explore your options to avoid such consequences.