Sometimes legal terms are chosen to make a distinction that doesn’t really exist. A good example of this is the terms we have used in Canada to deal with people who drove while their driving privileges are under suspension. In Canadian federal law we used to refer to a driving prohibition pursuant to the Criminal Code of Canada as being driving while disqualified from holding a license and from driving. At the same time, BC provincial law banned essentially the same behaviour but referred to the offence as driving while prohibited. Adding to the confusion, letters and driving records will sometimes speak of a driving suspension.
The federal / provincial distinction addressed an interesting problem in the law. On the one hand, the province is in control of licensing and has the power to govern use of roads and highways. On the other hand, criminal law is federal and when there is a conflict in the law regarding who has jurisdiction, the federal law comes first. In many historic cases dealing with legislative competence, provincial legislation has been found to be outside the jurisdiction of the province when there is a federal law that covers the same actions. In the last decade, that has changed, however.
What’s in a name?
Both levels of government have known since the earliest days of confederation that there will be conflicts. Just because there are conflicts in legislative authority, doesn’t mean that one level of government wants to oust the power of the other. Some artificial designations have been devised to give power to both levels of government over the same subject matter. In the case of driving law, there is cross over. Excessive speeding can be dangerous driving. Certain aggressive driving might be considered driving without reasonable consideration or dangerous driving.
But if the behavior is the same, how can you get around the fact that only one level of government has the authority to legislate? One method is to give it a different name and pretend that it is somehow different. That’s where things stood for a long time when it came to driving while prohibited. To resist attacks on the legislative power of either level of government, the two levels of government used different terms for the same action – to regulate the same wrong.
Things change
It’s not the case anymore. Since December 2018, both the federal and provincial law speak of driving while prohibited. In the BC provincial legislation, the offence reads:
Driving while prohibited
95(1) A person who drives a motor vehicle on a highway or industrial road knowing that…
he or she is prohibited from driving a motor vehicle…commits an offence.
The current version of the federal criminal law reads:
Operation while prohibited
320.18 (1) Everyone commits an offence who operates a conveyance while prohibited from doing so
(a) by an order made under this Act; or
(b) by any other form of legal restriction imposed under any other Act of Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730
Now, interestingly enough, the current federal law, the crime of driving while prohibited, does not shy away from the use of the term “prohibited” and includes any type or driving prohibition (legal restriction imposed) under provincial law.
What this means is that “operating / driving while prohibited” is the same offence in either federal criminal law or provincial law.
It was a bold decision to change the law to use the same term. This is essentially the governments saying, if you challenge the law on the basis of legislative competence, we think we will succeed arguing that both levels of government have the authority to pass laws that regulate the exact same behaviour.
Why so bold?
The Supreme Court of Canada ruled in Goodwin v. BC (https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/15550/index.do) that when it comes to governing the same driving behaviour – essentially committing the same offence while driving, both levels of government can legislate in an overlapping manner. This case dealt with DUI/Impaired driving law where both levels of government had competing legislative schemes to deal with over .08 drivers. The court set out a new approach that allows overlapping law giving the police overlapping powers to deal with drivers who have an unlawful blood-alcohol level.
The reasoning behind the new approach was because previous attempts to stop over .08 / DUI driving had failed to stop people from driving while impaired. The court basically agreed that creative approaches are necessary to deal with this societal problem and a rigid approach of only one level of jurisdictional competency places an artificial, unnecessary impediment toward solutions.
With this new approach in mind, the federal government decided there was no reason to tip toe around terms. We now have one approach to describing prohibited driving and it is just that.
The big crossover
The federal government went one step further by clearly making it a crime to drive when your license is suspended for any legal reason, either under federal or provincial law. In other words, driving while prohibited by something as minor as a 12-hour prohibition issued by a police officer roadside can be prosecuted as a criminal offence.
Prosecutorial discretion
Now that both federal and provincial law regulates the exact same behaviour, how is it decided which law will apply? In British Columbia the police report is handed to a prosecutor who makes the decision under which law the offence will be prosecuted. They approve one of the two versions of the law in the Information and it will list whether it is a Criminal Code offence or a Motor Vehicle Act offence. In most of the cases, the Motor Vehicle Act offence is preferred. The reasons for this would be the subject of another blog post.
If you have been stopped for driving while prohibited or operating a conveyance while prohibited, give us a call. It’s a complex area of law and often there are defences that may surprise you.