When it comes to traffic court and evidence, there are certain things that can be used and things that cannot. The prosecution has a number of ways to get evidence against you in a driving while prohibited case, but not all of it is always admissible.
Who can be used as a witness?
Finding a witness is one way the prosecution can prove you were driving while prohibited.
The most obvious person they would use would be the officer who pulled you over and issued the prohibition. The officer was the one who handed you the ticket while you were in the driver’s seat when you were not supposed to be and therefore, is a reliable witness.
For the prosecution, a witness they could use would be any observation from someone who served you a driving prohibition. So, if you got a driving prohibition handed to you, the officer who issued you the prohibition can also testify about how they determined your identity, what documents they gave you and what they explained to you regarding the prohibition.
What is considered proof?
Your identity information is also admissible in a DWP case. You are legally obligated to say your name and address and then the name and address of the registered vehicle owner if asked by a police officer. And those statements are admissible, as proof of who you were for the purposes of the Motor Vehicle Act prosecution.
However, other statements you made may not be admissible depending on the circumstances surrounding them.
If you are pulled over by a police officer investigating you for driving while prohibited and the officer starts to question you, perhaps because they have suspicions or even if they don’t, if they start to question you about your prohibition, such as why you’re prohibited, whether or not you know you’re prohibited, or anything along those lines, that evidence is not admissible.
The only way that could be considered admissible, is if the prosecution could prove you had been read your Charter Rights and then waved your right to a lawyer prior to making those statements.
And the reason for this because in common law, there’s a doctrine known as use immunity, which applies to pre charter statements that are made, particularly in the roadside investigation context.
The statements you make in these situations are only permissible for the purpose of the officer forming grounds to take later action like arresting you, issuing you demands or even prohibitions. But they are not admissible as proof of fact at a trial.
Difference between what is admissible vs. inadmissible
The problem is, that most people don’t understand how this works. A police officer can ask you if you have a driver’s license and your response to that won’t be inadmissible because you’re legally required to produce a driver’s license. However, if they ask you if you are prohibited from driving, that answer would be inadmissible, unless they’ve given you your Charter Rights warnings already.
And the other complicating factor is that people don’t recognize the difference between information they volunteer, and information that is part of this compelled participation umbrella.
If the officer says, do you have a driver’s license and you say ‘no, I’m a prohibited driver and had my license taken,’ then that’s on you. That is admissible.
To make the least amount of evidence admissible, only answer what you are required to answer, and don’t voluntarily say anything that is not required in response to an investigating question.
ICBC and the Superintendent of Motor Vehicles
Any documentary is evidence that is in possession of ICBC or the Superintendent of Motor Vehicles. ICBC keeps records of all your driving infractions, including your driving prohibitions, and the Superintendent keeps records of the letters that were sent to you about driving prohibitions.
All of those records that they have are presumptively admissible under the Motor Vehicle Act as proof of the truth of their contents. So, you don’t even necessarily have the right to cross-examine the Superintendent of Motor Vehicles or the CEO of ICBC to say these documents aren’t real, because they’re admissible if they are certified to be a record held by the corporation or the Superintendent of Motor Vehicles signed the certificate.
Because of this, usually, they don’t really need your roadside statement to prove you were prohibited from driving, because they have those documents, and they are proof enough.
Witnesses as evidence
Other things that people may not think of that could be used as evidence against them in their DWP hearing, is observations of friends and family members.
In cases of prolific prohibited drivers, police will sometimes go to their house and ask family members if the prohibited driver perhaps drove to work on a certain day.
And then, if they come to court and say it, that is admissible evidence too.
In your defence, there could also be a lot of evidence that is admissible as well. If you made a recording of your interaction with the officer, if you have start or stop logs that are available in newer cars, or even if you have evidence to show someone else was driving, like other witnesses who can say you weren’t driving.
But those witnesses would have to show up to court and testify what they say, otherwise, it would be considered hearsay.
The most important takeaway from this blog, which includes what you can do to help yourself in a DWP case, is to only answer questions with the information you are required to give. Do not offer any additional information, the less you say, the more of a fighting chance you give yourself.
Don’t hesitate to call us if you find yourself in a situation where you have been caught driving while prohibited.