A question we hear a lot when someone calls us after receiving an Immediate Roadside Prohibition is does this IRP give me a criminal record? The answer is no, it does not.
In order to get a criminal record in Canada, you must first be charged with a criminal offence. Criminal offences are contained in the Criminal Code of Canada as well as in the Controlled Drug and Substances Act.
A criminal record is also a consequence that comes from being charged with an offence that leads to a conviction that doesn’t involve a discharge.
So, in order to get a criminal record, you first have to be charged with an offence, you then have to be found guilty of the offence, and then you must be given a sentence that results in a criminal conviction being entered against you.
Why is it not a criminal charge?
An IRP does not give you a criminal record because none of these three things happen. First of all, an IRP is not an offence.
In 2015, the Supreme Court of Canada heard arguments in two immediate roadside prohibition cases, and one of the issues for determination by the SCC in those cases was whether or not an IRP constituted an offence.
In order for something to be an offence, there have to be certain characteristics that are met by the conduct, and an IRP does not have the characteristics necessary to amount to an offence.
The SCC found that therefore, an IRP is not an offence.
Legally, this technically means that an IRP is just not an offence, but also less legally significant than a speeding ticket or a distracted driving ticket, both of which are offences.
Even though you may face more serious consequences for an IRP, those consequences do not rise to the level of what the court determines to be an offence and as such, you can’t get a criminal record for an IRP.
Guilty of an IRP
The second question, of course, is what can happen if you are found to be guilty.
Because IRPs are not dealt with by a hearing in court in front of a justice, the hearings are presided over by an adjudicator. This a person who derives their powers purely from statute and not by provisions of the Criminal Code or the BC Offence Act, for determining issues that arise in the context of offences.
Since a Justice does not make a determination of guilt, an IRP doesn’t result in a conviction. IRPs are considered to be administrative suspensions with administrative consequences.
Disputing an IRP
The result of the consequences being purely administrative is that the individuals who are subject to the prohibition, don’t have the same rights to appeal that you would if you were charged and convicted in court.
Your grounds to appeal are constrained by the powers set out in the Motor Vehicle Act. This means there are only certain arguments and defences that can be raised.
Considerations like the Charter don’t apply like they would if you were charged with an offence. When charged with an offence, your Charter rights are protected and presumed under the law.
This also makes an IRP not an offence when you look at the structure of the legislation and the rights that you have in disputing your IRP.
Consequences of an IRP
The third thing that is required for something to be an offence is a sentence that results in you getting a criminal record.
The consequences of the IRP, while significant, do not involve the imposition of a consequence that amounts to a criminal record.
Instead of a fine, there is a monetary penalty, and it is imposed by the province. If a fine is going to lead to a criminal record, it has to be laid by the federal government.
Provincial offences themselves do not result in a criminal record, and so the imposition of the monetary penalty that you receive as a result of the IRP does not lead to you getting a criminal record.
Everything under the IRP scheme is dealt with by provincial legislation, and it cannot result in you getting a criminal record because the British Columbia government does not have the ability to impose a sentence on you that results in a criminal record.