The offence of driving while prohibited is notoriously easy to prove. The Crown simply has to establish that you knowingly operated a vehicle with a prohibited licence. However, the defence of necessity in driving while prohibited cases is occasionally used to varying degrees of success.
In this blog, we will look at two separate cases of driving while prohibited. In each case the accused advanced defence of necessity. In one of the cases, the Court acquitted the accused and in the other, entered a conviction. Let’s look at why the defence worked in one instance but not the other.
What is driving while prohibited?
Driving while prohibited is one of the most serious offences under BC’s Motor Vehicle Act. If you have a driving prohibition and you drive on a roadway, you can be convicted of the offence.
The punishment for driving while prohibited is severe. If convicted, you face a one-year driving prohibition on as well as the possibility of a jail sentence. If convicted of a second offence or higher, the offence carries a mandatory 14-day prison sentence.
What the Crown has to prove
In order to secure a conviction for driving while prohibited, first the Crown has to prove that you were driving. That is, it has to identify you as the driver and show that you were, in fact, driving.
Secondly, it has to prove that you were driving on a roadway. The offence only applies to public highways and industrial roads. If you were driving on private land at the time of the alleged offence, this might be a defence available to you.
Next, the Crown must prove not only that you were prohibited at the time of driving but also that you knew you were prohibited. If it can do all of that, then usually they will secure a conviction.
Elements of the defence of necessity in driving while prohibited cases
In Canada, the law recognises that, in some circumstances, doing something that is against the law can be excused because the particular situation left the accused with no reasonable option but to break the law. The defence of necessity is sometimes used in driving while prohibited cases, although it can be difficult to establish.
In order to successfully advance the defence of necessity, the defence needs to establish there was:
- There was imminent peril or danger,
- The accused had no reasonable legal alternative,
- There was proportionality between the harm inflicted and the harm avoided
Once an accused raises the possibility that a defence of necessity exists, burden of proof is on the Crown to disprove the defence beyond a reasonable doubt.
Example no. 1
For an example of an unsuccessful attempt to use the defence of necessity in a driving while prohibited case in BC, look no further than this one. The accused was charged after being stopped at a roadblock looking for motor vehicle infractions and impaired driving offences.
After he was found not to have a driver’s licence, police arrested the defendant on suspicion of driving while prohibited. In his defence, the accused stated that he drove because he had been “jumped” a few days prior and felt under threat.
The Crown told the Court there was no evidence of an assault in the days before the defendant was pulled over. The judicial justice said there was reasonable doubt as to there being an imminent peril or danger.
Also, the Court found the defendant could have sought another legal alternative, such as asking one of his neighbours to come and pick him up. The accused was subsequently convicted of the offence.
Example no. 2
For a more successful application of the defence of necessity, take a look at this case. The accused was charged with driving while prohibited after being stopped by a police officer. The defendant argued he had no reasonable legal alternative. He testified that prior to being stopped he had been a passenger in the vehicle which belonged to his friend. The vehicle broke down on the crest of a hill and following failed attempts to start the vehicle, the owner left to get help.
After sitting in the vehicle a while, he realised there was an apparent danger so he coasted the vehicle downhill to void an accident. It was then that the officer spotted him and stopped him.
The Court found that the defendant met the three elements of the defence. Namely, there was an imminent peril or threat in leaving the vehicle at the crest of a hill. Doing nothing was not a reasonable alternative so long as there was a risk to other drivers. Also, the risk posed by driving the vehicle 200 yards down the road while prohibited was proportional to the risk of leaving the car where it was. The defendant was acquitted of the charge.
From these two cases, we can see the importance of establishing the three elements of the defence of necessity. In the latter case, it was apparent that the defendant had no reasonable alternative and there was an imminent peril. In the former, on the other hand, there was little to no evidence of imminent peril and the defendant could have taken alternative action.
Acumen Law Corporation’s lawyers have enjoyed great success in the area of driving while prohibited. We strive to secure satisfactory results for our clients and we have experience in negotiating Courts away from the harsh penalties they have the power to issue. Call us for a free consultation on 604-685-8889.