When it comes to defences that can be used in driving while prohibited cases, there are very limited options you can use. As we have discussed in previous blog posts, the charge of driving while prohibited requires the prosecution to prove that a person drove, that they were prohibited, and that they knew they were prohibited.
Oftentimes, the issue of whether or not a person is prohibited is not really a defence, because the question of if a person is prohibited is simply answered by looking through ICBC’s records.
Technicality defences
There are circumstances, however, where you could prove, or at least raise a reasonable doubt, that you were prohibited. These such cases involve defences that many people consider to be technicalities.
These are technicalities in the sense that the defences here revolve around raising arguments that have to do with mistakes in the documentation by ICBC or inconsistency in ICBC’s records.
These defences are used very rarely, and because they are technicalities, they are also much more complex to succeed in. Also, because of the fact that they are more technical a defence, it requires you to have more legal knowledge to determine whether or not it applies.
People often view technicalities as a sort of easy way out when charged with an offence. This is not true though, and in fact, technicalities are one of the most difficult ways to establish that you are not guilty of any particular offence.
This is because they require a very nuanced and sophisticated understanding of all of the legal requirements that interplay with each other in governing legislation like the Motor Vehicle Act.
Knowledge of prohibition
The other defences that arise in the MVA are defences that have to do with whether or not you know that you were prohibited.
These are the most common defences in driving while prohibited cases because it is easy to establish that you didn’t know you were prohibited in those circumstances.
You can provide evidence that you didn’t receive notice of the prohibition, or that if you did receive the notice, it wasn’t clear what the start or end date was. You can also argue that there was some confusion in the conversations you had with the person who gave you the prohibition or even miscommunications with ICBC.
Officially induced error defence
Defences arise on the issue of knowledge where there is something known as an officially induced error. This is where a person relies on information from another person, like an ICBC representative, or a police officer, as to the legal effect of a prohibition and they do so to their detriment.
People are entitled to look at a government official or an official representative of the state, as having knowledge that is necessary for them to make an informed decision about their rights or their obligations when dealing with certain state documentation, records or allegations.
So, individuals who are charged with driving while prohibited may depending on conversations that they’ve had, have a defence based on an officially induced error. But again, like technicality defences, these are also very technical.
There are certain things that need to be proven in order to make out the defence and that is why it’s important to consult with a lawyer if you believe that there has been an officially induced error in your case. If the information you were given was not actually incorrect, then there is no officially induced error.
Did you actually drive?
The third defence that arises in driving while prohibited cases are the one that relates to whether or not somebody actually drove.
The MVA for driving while prohibited only prohibits actual driving. It does not prohibit acts that fall short of driving, such as care or control of a vehicle, or operating the vehicle within the definition used in the Criminal Code.
What this means is that, in order for you to be convicted of DWP, you actually have to drive your car and it has to be driven on a roadway.
If you are pulled over while you’re parked on the street, because the officer sees that your license is not valid and wants to investigate that, you don’t actually fall within the area of the MVA prohibition on DWP.
The only MVA on DWP is the one that flows from actual driving, and that actual driving has to be performed on a roadway. You can’t drive on private property and be convicted under the MVA.
The question of what is a roadway is a very difficult one. In the MVA it is defined as every road, laneway, street, highway, passageway, or private or public place, to which the public has access for the purposes of parking or servicing motor vehicles.
Obviously, this includes every street, lane and all the ordinary places where we drive our cars, but some private places are also considered to be roadways even though they’re private property. It depends on the nature of the place, what its use is and whether it’s open to the public for the purposes of parking or servicing motor vehicles.
If it is not open to the public, it is not a roadway, and thus cannot attract driving within the meaning of the MVA.
But just because you’re in a parking lot, does not mean, necessarily, that you’re going to be found not guilty of DWP.
It’s important to get legal advice to understand which parking lots are highways and which are not, and even then, a parking lot you and your lawyer may interpret as a private place and therefore not a roadway may be viewed differently by the courts.
Of course, the best defence against DWP is not to get charged with it in the first place. Don’t drive if you don’t have a valid license.
But if you do find yourself facing one of these charges, don’t hesitate to call our office. We can probably help.