In many blog posts, we have discussed how easy it is for the Crown to prove driving while prohibited offences. There are only three things that must be proven: that you were prohibited, that you knew you were prohibited, and that you drove.
The Motor Vehicle Act sets out evidentiary shortcuts that allow the prosecution to easily establish that you were prohibited and that you knew. Proving that you drove is also relatively easy.
That being said, there are defences to these cases, and many circumstances arise in which the defences to Driving While Prohibited cases occur as a result of police mistakes.
Here are the top five mistakes police make in driving while prohibited charges.
Failing to properly identify you
In a Driving While Prohibited case, identification is a central issue that arises in court. In order to prove that you were the driver, police have to prove that you are who they say you are.
Because people who are Driving While Prohibited aren’t usually in possession of a driver’s license, the police don’t have documentation to establish the identity of an individual.
In most cases where somebody is pulled over, a license will be handed over and so it’s easy to identify if you are the person in the license photo. Identity can be tricky without photo identification, because someone who knows specific information about you, can pretend to be you.
Impersonation can occur, and the police need to be satisfied the person they are talking to is actually who they are charging with Driving While Prohibited.
If they don’t take appropriate steps to satisfy them with that information, this may lead to a defence against a Driving While Prohibited charge.
Violating Charter rights
Simply because a Driving While Prohibited investigation occurs under the Motor Vehicle Act, does not mean you don’t have Charter rights. Most people who are stopped for Driving While Prohibited and arrested, are detained for the purposes of that investigation.
But because the investigations are brief, they often don’t result in police properly complying with Charter rights. Driving While Prohibited arrests and questioning done by police can lead to violations of Charter rights, and can also lead to charges being thrown out altogether.
Taking statements unlawfully
Many Driving While Prohibited cases are proven on the basis of statements made by individuals themselves. While there are evidentiary shortcuts, if the Crown is not able to rely on them, a statement made by a person pulled over may be solid evidence that they knew they were prohibited.
However, in Driving While Prohibited investigations, as noted in point number two, police often violate Charter rights. They also often take statements in circumstances where they would be rendered inadmissible.
This is because there are rules about police questioning of individuals, and when the answers to police questioning may be used against a person, as opposed to may simply be used to give an officer ground to take further enforcement action.
Because police in driving investigations very rarely these days have to go to court and testify, many don’t know where the line is between permissible questioning and impermissible questioning, and statements you made may not be admissible.
Unlawfully stopping vehicle
Although there is broad discretion under the Motor Vehicle Act and at common law for police to stop vehicles, to check licensing, sobriety, fitness and insurance, there are circumstances in which vehicles are not lawfully stopped.
Identifying whether a traffic stop is lawful is an important point because the lawfulness of the traffic stop will likely lead to the admissibility of everything that flows from that stop. If evidence is obtained as the result of an unlawful stop, then the police cannot rely on that evidence in court, and that would include any information about who was driving the vehicle unless the police made observations of who the driver was, that allowed them to conclude the identity of that person.
The lawfulness of your traffic stop is something that is difficult to determine because of the broad authority police have to conduct traffic stops.
Issuing Driving While Prohibited charges to people who are not driving
It is not an offence to be in the driver’s seat of a vehicle while prohibited unless the prohibition is the result of a criminal conviction.
This may be complex, but your prohibition is a BC prohibition flowing from an IRP, an ADP or too many traffic tickets, chances are if you are not actually driving the vehicle, you are not actually guilty.
This doesn’t mean inferences cannot be drawn by the court about your actions in the vehicle being consistent with driving, as opposed to not driving. This in the sense that if it’s on the side of a roadway, how did the vehicle get there? But inferences must be tied to facts, and there must be some facts that would support that you were the one who drove the vehicle there, they are capable of establishing that as proof beyond a reasonable doubt.
Therefore, it is important to consult with someone who is familiar with the rules of evidence and what constitutes a Driving While Prohibited charge.
This list is just five examples of the many mistakes that could be made by police in Driving While Prohibited cases and certainly, there are numerous other things that could lead to a successful defence against a Driving While Prohibited charge. If you are facing such a charge, it is best to contact a lawyer to determine whether or not you have a defence.