Governing Legislation and Resources for Motor Vehicle Law (13:II)

A. Provincial Driving Offences

1. Authority of Peace Officers

According to the Supreme Court of Canada in R v Ladouceur, [1990] 1 SCR 1257, 56 CCC (3d) 22, random checks by the police for motor vehicle fitness, possession of valid driver’s license and proper insurance, as well as sobriety of driver constitute arbitrary detention contrary to s 9 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter]. However, these checks are considered reasonable limits under s 1 of the Charter so long as they are “truly random routine checks”: R v McGlashen, [2004] OJ No 468, 115 CRR (2d) 359. The Ladouceur decision was affirmed in R v Orbanski, 2005 SCC 37, [2005] 2 SCR 3.

Pursuant to MVA s 79 a peace officer may arrest without warrant any person:

• a) whom the officer finds driving a motor vehicle, and who the officer or constable has reasonable and probable grounds to believe was driving in contravention of MVA ss 95 or 102 (driving while prohibited)(s 79(a)); or
• b) whom the officer has reasonable and probable grounds to believe is not insured or who is driving without a valid and subsisting motor vehicle liability insurance card or financial responsibility card (s 79(b)); or
• c) whom the officer has reasonable and probable cause to believe has contravened MVA s 68 (leaving the scene of an accident) (s 70(c)) and may detain the person until he or she can be brought before a justice.

2. Procedure

NOTE: MVA s 124 gives municipalities authority to create motor vehicle bylaws on matters such as parking and to enforce them by fine or imprisonment under s 124(1)(u). Municipalities cannot use this authority with respect to speeding (s 124(2)). An individual charged with a bylaw offence will receive a bylaw infraction notice or a Municipal Ticket Information. While the following generally applies to these offences, special procedures may be imposed. Follow the procedures outlined on the bylaw infraction notice or Municipal Ticket Information.

An individual charged with a provincial offence will likely receive a violation ticket issued under s 14 of the OA. However, under s 11 of the OA, an Information can also be laid against the accused. This is for serious offences such as MVA ss 95 and 102 (driving while prohibited). Court attendance is compulsory when an Information is laid, but, in the case of a violation ticket, court attendance is only required if a violation ticket is disputed.

A special procedure for adjudicating violation tickets is set out in ss 14-18 of the OA. To dispute a violation ticket, one must either appear in person at any Motor License Office, Government Agent’s Office, or Provincial Court Registry with a copy of the Violation Ticket or mail a copy of the Violation Ticket to: Ticket Dispute Processing, Bag #3510, Victoria, BC, V8W 3P7. The notice of dispute must contain the address of the accused and sufficient information to identify the violation ticket and the alleged contravention or fine disputed (OA s 15(3)).

A person has 30 days to make his or her intention to dispute known (OA s 15(1)). Read the reverse side of violation tickets as these regulations and procedures may change from time to time. If a client does not dispute the violation ticket within 30 days, he or she is deemed to have pled guilty under OA s 16. A person still has 14 days to appear before a justice, with an affidavit, to state why it was not his or her fault that the deadline was missed OAs 16(2)).

A violation ticket dispute is heard in Provincial Court by a judge or justice of the peace who, after hearing the evidence, determines whether or not the violation took place. If an accused misses the Provincial Court hearing, he or she has 30 days to appear before a justice, with an affidavit, to explain why he or she missed the hearing (OA s 15(9.1)).

In challenging a ticket, it is important to:

• Appear at the appointed time. There is always the possibility the peace officer will not appear and the case will be dismissed due to lack of evidence.
• Read the relevant sections of the MVA to determine the elements of the offence and, if the Crown fails to lead evidence on any of these elements, motion for dismissal at the conclusion of the Crown’s presentation. The evidence must include identification of the alleged offender by name and address as well as the time, date, and location of the offence.
• Pursuant to provisions in the OA, the Crown can easily amend most mistakes on Violation Tickets.
• If the offender can show economic hardship, the judge has the power to reduce the fine. Section 88 of the OA states that the fine can be reduced based on the offender’s means and ability to pay, subject to minimum fines specified in the MVA.
• Consider whether the offence is strict or absolute liability. If the offence is strict liability, consider whether the accused may have the defence of due diligence. Generally, this means that if the accused establishes, on a balance of probabilities, that he or she was not negligent (in roughly the same sense as the civil standard of negligence), the accused is entitled to an acquittal.

In some instances, Legal Aid is available to people charged with an offence under the MVA for which their livelihood would be in jeopardy upon conviction.

The decision of a Provincial Court judge or justice of the peace may be appealed to the Supreme Court of BC. A record of the finding is sent to the Superintendent of Motor Vehicles (hereinafter, the “Superintendent”). Any discretionary determination made by the Superintendent may, in certain circumstances, be subject to judicial review.

3. Penalties

To determine the penalties for a motor vehicle offence, read the relevant sections in the MVA describing the offence as some penalties are prescribed there. For some offences, the MVAR imposes penalty points and the VTAFR levies fines.

a) Penalty Points

Penalty points are imposed in accordance with the schedule set out in Division 28 of the MVAR. It is important to note that conviction for Criminal Code offences also results in the imposition of penalty points. See Appendix A for examples of offences and their corresponding penalty points.

The number of penalty points will be taken into account under MVA s 93 when the Superintendent suspends a license. The Superintendent may suspend the license of a class 5 driver who accumulates 15 or more points in any two year period. For a class 7 driver, the Superintendent may suspend the licence for receiving a 3 point violation ticket.

b) Fines

The VTAFR prescribes fines for MVA offences. Appendix A lists some examples of fines.

c) License Suspension or Cancellation and Driving Prohibition

(1) Roadside Suspension or Prohibition Issued by a Peace Officer

These are explained in further detail in Section IX: Offences Related to Drugs and Alcohol. Police officers may issue suspensions of different lengths:

• If a person is served with a notice of driving prohibition under MVA s 215.41 in circumstances where an Approved Screening Device registers a warn, the person is prohibited from driving for
  • a) 3 days, in case of first prohibition,
  • b) 7 days in case of second prohibition, or
  • c) 30 days in case of subsequent prohibitions. (MVA s 215.43(1))
• A person served with a notice of driving prohibition under s 215.41 is prohibited from driving for 90 days in circumstances where
  • a) An Approved Screening Device registers a fail, or
  • b) The person refuses or fails to comply with a demand as described in s 215.41(4)

(2) By Order of a Court

A court may, under MVA s 98(2), suspend a driver’s license for a definite period of time for any conviction under the MVA or Criminal Code relating to the driving or operation of a motor vehicle. This power extends to out-of-province driver’s licenses.

The judge should consider the driving record and the facts of each specific case. Conviction includes the possibility of an absolute or conditional discharge under MVA s 98(1). This section does not apply to an individual convicted of a vicarious liability offence (MVA s 98(3)).

(3) By Order of the Superintendent

MVA s 90(1) states that the Superintendent may suspend a license and number plates if there is:

• a failure to obtain automobile liability insurance;
• indebtedness to ICBC for reimbursement of money paid in respect of a claim; or
• indebtedness to the government for failure to pay fines.

Failure to pay a judgment in an action for damages involving bodily injury, death of another person, or damage to property in excess of $400 resulting from the use of a motor vehicle anywhere in Canada or the United States within 30 days may lead to a driving prohibition (MVA s 91(1)).

Failure to appear for or to pass a driver's examination may lead to a license being suspended or cancelled (MVA s 92).

The Superintendent has the discretion to prohibit a person from driving if it he or she considers it to be in the public interest and the person failed to comply with the MVA, the MVAR, or if the Superintendent considers the person’s driving record to be “unsatisfactory” (MVA s 93(1)).

A person can apply for a review of a s.93(1) driving prohibition under the Driver Improvement Program. The driver must within 21 days of receiving the notice of intent to prohibit, send in an application for review and written submissions as to why the driving prohibition should not be imposed or should be reduced. There is a $100 review fee that must be paid by way of money order or certified cheque.

This discretionary power may be exercised without a hearing. In addition, the Superintendent is given discretion in determining which evidence he or she will consider in making the decision. A suspension cannot be quashed solely on the basis that the Superintendent did not consider certain relevant evidence (MVA s 93(3)). The MVA appears to permit the Superintendent to limit the period during which a license is suspended to certain times of the day or days of the week (MVA s 25(12)(a)). An appeal of the suspension or cancellation to the Supreme Court must occur within 30 days (MVA s 94(1)).

(4) Automatic Prohibition

A driver convicted of a Criminal Code motor vehicle offence is automatically prohibited from driving for a period of one year (MVA s 99). The automatic prohibition also applies to some offences under the MVA, including:

• a) s 95: driving while prohibited by order of peace officer or Superintendent;
• b) s 102: driving while prohibited by operation of law;
• c) s 224: impaired driving; or
• d) s 226(1): refusing to give a blood sample.

Under MVA s 100(3), an individual who refuses to stop for a police officer will receive a two-year prohibition from driving if he or she is also convicted of one of the following Criminal Code offences:

• a) s 220: criminal negligence causing death;
• b) s 221: criminal negligence causing bodily injury;
• c) s 236: manslaughter; or
• d) s 249(1)(a), (3) or (4): dangerous operation of a motor vehicle.

d) Impoundment of a Motor Vehicle

Drivers risk having their motor vehicles impounded when:

(1) Driving Without a License

Drivers who are not exempt from holding a license risk having their vehicle impounded if:

• a) the driver has not received a license because:
  • the driver is in debt to ICBC for reimbursement of money paid in respect of a claim (MVA s 26(1)(b));
  • the driver has not paid a fine owing due to a Criminal Code motor vehicle offence (MVA s 26(1)(c)(i)) or MVA offence (MVA s 26(1)(c)(ii)); or
• b) the driver’s license has been cancelled:
  • for failure to pay a Criminal Code or MVA fine (MVA s 27(3));
  • for current prohibition or suspension under the MVA, Youth Justice Act, SBC 2003, c 85 [YJA], Youth Criminal Justice Act, SC 2002, c 1, or Criminal Code (MVA 60(1)(c)); or
• c) if he or she has been convicted of driving without a license since his or her last driver’s license expired or was cancelled.

(2) Impoundment for Racing

If a peace officer has reasonable and probable grounds to believe that a person has operated a motor vehicle on a highway in a race and the peace officer intends to charge the person who operated the motor vehicle with a serious offence, the peace officer may cause the motor vehicle to be taken to and impounded for 48 hours at a place directed by the peace officer (MVA s 242(1)).

(3) Excessive Speeding

A person who drives a motor vehicle on a highway at a speed greater than 40 km/h over the applicable speed limit set under the authority of an enactment commits an offence under s.148 of the MVA. On the first offence their vehicle is impounded for a period 7 days (MVA s 251). On a second offence their vehicle is impounded for 30 days.

(4) Alcohol or Drug Induced Impairment

If a peace officer serves a person with a notice of a 3-day or 7-day driving prohibition under MVA s 215.41(3.1) and believes that impoundment of the vehicle that the person was operating at the time the notice was served is necessary to prevent the person from driving before the prohibition expires, the peace officer may cause the motor vehicle to be taken to and impounded at a place directed by the peace officer.

If a peace officer serves a person with a notice of a 30-day or 90-day driving prohibition under s 215.41(3.1), the peace officer must cause the motor vehicle that the person was operating at the time the notice was served to be taken and impounded at a place directed by the peace officer. (MVA s 215.46)

A peace officer may, at any time or place on a highway or industrial road if the peace officer has reasonable and probable grounds to believe that a driver’s ability to drive a motor vehicle is affected by alcohol or drug and impoundment is necessary to prevent the driver from driving or operating the motor vehicle before the prohibition expires, immediately cause the motor vehicle that the driver was operating or of which the driver had care or control to be taken to a place directed by the peace officer and impounded there for a period of 24 hours. (MVA s 215.4)

See Section IX: Offences Related to Drugs and Alcohol below for more information.

e) Prison

Read the relevant sections of the MVA to determine if there is the possibility of imprisonment for a particular offence. The OA limits the likelihood of incarceration as s 6 states that there should be no imprisonment for absolute liability offences and s 82(1) states that there should be no imprisonment for non-payment of fines.

f) Breach of Insurance Conditions

Pursuant to s 55(8) of the Insurance (Vehicle) Regulation, offences under MVA ss 95 and 102 (driving while prohibited), s 224 (driving with a blood alcohol level over .08), and s 226 (refusal to provide a blood sample) are considered a breach of certain insurance conditions. It is also a breach of these conditions if alcohol or drugs have rendered the driver incapable of proper control of the vehicle.

B. Federal (Criminal) Driving Offences

1. Authority of Peace Officers

Pursuant to s 495(1) of the Criminal Code, a peace officer may arrest without warrant:

• a) a person who has committed an indictable offence or who, on reasonable grounds, the peace officer believes has committed or is about to commit an indictable offence;
• b) a person who the peace officer finds committing a criminal offence; or
• c) a person of whom the peace officer has reasonable grounds to believe that a warrant of arrest or committal is in force.

Limitations are set out in s 495(2), allowing the peace officer to issue an appearance notice (s 496). An arrest is more likely when the offence involves impairment by alcohol or drugs as the peace officer may, acting under the authority of s 495(2), arrest if he or she forms the reasonable belief that it is necessary to prevent “the continuation or repetition of the offence or the commission of another offence”.

In R v Labine, (1987), 49 MVR 24 (BC Co Ct), the Court held that the policy of the police officer to arrest all impaired driving suspects regardless of rights afforded to them by the Criminal Code offends the Charter. It specifically offends s 9 which protects against arbitrary detention. The police cannot deliberately adopt a policy to deprive the accused of the right not to be arbitrarily detained notwithstanding that the officer might be acting in the execution of their duties under Criminal Code s 495(3). Although the defence in Labine is still good law, its applicability has been greatly limited. The Court in R v Faulkner, (1988), 9 MVR (2d) 137 (BCCA) states that unlawful arrests are not necessarily arbitrary.

2. Procedure

Consult Chapter 1: Criminal Law for more information on LSLAP criminal procedure.

It is in the client’s best interest to retain qualified legal counsel due to the potential for a criminal record and a severe penalty that may include incarceration. Complicated issues may also arise regarding insurance coverage. The Legal Services Society (Legal Aid) may represent an accused charged with an indictable offence or a summary conviction offence where there is a likelihood of imprisonment upon conviction. An accused who does not face the risk of imprisonment may receive legal representation if he or she faces a loss of livelihood upon conviction, has a mental or physical disability that is a barrier to self-representation, or faces immigration complications that may result in deportation. In all cases, the clinician should discuss the matter with the Supervising Lawyer prior to agreeing to act for the client or going on record as counsel.

LSLAP will usually only represent clients for Criminal Code offences where:

• a) the client cannot afford a lawyer;
• b) the client has been turned down by Legal Aid;
• c) the offence does not involve drugs or alcohol;
• d) in the case of a hybrid offence, the Crown indicates it intends to proceed summarily or where the offence is purely a summary conviction offence; and
• e) in the opinion of the Supervising Lawyer, the possibility of imprisonment is not significant.

3. Penalties

a) Fines or Imprisonment

To determine possible penalties, it is usually necessary to find out if the Crown is proceeding summarily or by way of indictment. The relevant offence sections in the Criminal Code outline the range of possible punishments.

b) Penalty Points

The MVAR prescribes penalty points that are attached to specific motor vehicle offences. See Appendix A: Examples of Penalty Points and Fines.

c) Prohibition from Driving

An individual can be prohibited from driving under Criminal Code s 259. In addition, MVA s 99 imposes a one-year driving prohibition following conviction for a Criminal Code motor vehicle related offence.

d) Impoundment of a Motor Vehicle

Please see Section II.A.3(d) for impoundment with respect to provincial penalties.

e) Breach of Insurance Conditions

Pursuant to s 55(8) of the Insurance (Vehicle) Regulation, most Criminal Code motor vehicle offences are a breach of certain insurance conditions. It is also a breach of these conditions if alcohol or drugs have rendered the driver incapable of proper control of the vehicle. Criminal Code offences that breach insurance conditions are:

• s 220: criminal negligence causing death;
• s 221: criminal negligence causing bodily injury;
• s 249: dangerous operation;
• s 252: leaving the scene of an accident;
• s 253(a): driving with a blood alcohol level over .08;
• s 253(b): driving while impaired;
• ss 255(2) or (3): causing bodily harm or death while impaired;
• s 259(4): driving while disqualified; and
• s 254(5): refusing to provide a breath/blood sample.

If a conviction results from any of these offences, it may render the driver’s or owner’s insurance policy void and ICBC may legitimately deny any related claims (Insurance (Vehicle) Regulation s 55(9)).