Difference between revisions of "Superintendent of Motor Vehicles Prohibitions (13:VIII)"

Revision as of 23:21, 15 February 2017

A. Reasons

1. Driver Improvement Program – Class 5 license

The driver improvement program is administered by the Superintendent of Motor Vehicles, and allows the Superintendent to prohibit from driving anyone whose driving record is not satisfactory to the superintendent.

Drivers are first issued with a Notice of Probation, informing them that their record is not satisfactory. Such notices may be issued for reasons including:

The Superintendent considers it in the public interest – for example, if you have a bad driving record
- If you incur nine or more active penalty points on your record in a two year period, that is generally sufficient to trigger a notice of probation.
Your driver’s license was suspended in another province or state
You haven’t provided the payment (referred to as damages) the court ordered you to pay for a vehicle accident in which you were the driver or vehicle owner
You have not taken the medical exam required by the Superintendent

If any further offences are recorded during the probation period, or within six months afterwards, the superintendent will likely issue a “Notice of Intent to Prohibit”. Drivers may either accept the prohibition by signing and returning the notice of intent, in which case the prohibition starts immediately, or the driver may make a written submission giving reasons why they should not be prohibited from driving.

The Driver Improvement Program appeal process is detailed below.

If the written submissions are not accepted, or an individual does not respond to a notice of intent to prohibit, they will be issued with a notice of prohibition. They must immediately sign the notice, surrender their driver’s license to ICBC, and not drive for the term of the prohibition.

For more information on the Driver Improvement Program, see http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program

2. Driver Improvement Program – Class 7 license/ Novice Drivers

Novice drivers, including those in the “L” or “N” categories may be referred to the Driver Improvement Program with as little as 2 points on their record. As well, drivers in the graduated licensing program cannot exit the program (i.e. get a full, non-N, license) until 24 months after a prohibition.

The Driver Improvement Program appeal process is detailed below.

3. Other Reasons for Prohibitions

The superintendent may prohibit you from driving for other reasons, including:

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.

B. Appeals

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, or at any ICBC driver licensing office.

For more information on the Driver Improvement Program and guidelines, see http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program

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 (Motor Vehicle Act s 93(3)). The Motor Vehicle Act 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 (Motor Vehicle Act s 25(12)(a)). An appeal of the Superintendent’s decision to uphold the driving prohibition must be made in the BC Supreme Court and occur within 30 days of the Decision (Motor Vehicle Act s 94(1)).

C. Automatic Prohibitions

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

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-== A. General ==
+== A. Reasons ==
-If an individual is charged with a negligent or dangerous driving offence that would result in imprisonment upon conviction, a referral to Legal Services Society (Legal Aid) for legal representation is appropriate. An accused who does not face the risk of imprisonment may receive  legal representation from Legal Aid 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.
+=== 1. Driver Improvement Program – Class 5 license ===
-== B. Provincial Driving Offences ==
+The driver improvement program is administered by the Superintendent of Motor Vehicles, and allows the Superintendent to prohibit from driving anyone whose driving record is not satisfactory to the superintendent.
-=== 1. Careless Driving ===
+Drivers are first issued with a Notice of Probation, informing them that their record is not satisfactory. Such notices may be issued for reasons including:
+* The Superintendent considers it in the public interest – for example, if you have a bad driving record
+** If you incur nine or more active penalty points on your record in a two year period, that is generally sufficient to trigger a notice of probation.
+* Your driver’s license was suspended in another province or state
+* You haven’t provided the payment (referred to as damages) the court ordered you to pay for a vehicle accident in which you were the driver or vehicle owner
+* You have not taken the medical exam required by the Superintendent
-Under s 144(1) of the MVA, it is an offence to drive:
+If any further offences are recorded during the probation period, or within six months afterwards, the superintendent will likely issue a “Notice of Intent to Prohibit”. Drivers may either accept the prohibition by signing and returning the notice of intent, in which case the prohibition starts immediately, or the driver may make a written submission giving reasons why they should not be prohibited from driving.
-*a) without due care and attention;
-*b) without reasonable consideration for other persons using the highway; or
-*c) at a speed that is excessive given the road, traffic, visibility, or weather conditions.
-A person who commits an offence under (a) or (b) is liable on conviction to a fine of not less than $100 (s 144(2)) and six points added to  his or her driving record. Subject to the minimum fine, s 4 of the OA states that a fine must be less than $2,000. A person who commits an  offence under (c) is liable on conviction to a fine of $173 and three penalty points as per the VTAFR and MVAR.
+The Driver Improvement Program appeal process is detailed below.
-To convict a driver of any of these offences, the Crown must only prove inadvertent negligence: a lack of proper care or absence of thought. The standard of care is determined in relation to the circumstances and carelessness must be proved beyond a reasonable doubt: ''R v Beauchamp'', [1952] OJ No 495, (1953)106 CCC 6 (Ont CA).
+If the written submissions are not accepted, or an individual does not respond to a notice of intent to prohibit, they will be issued with a notice of prohibition. They must immediately sign the notice, surrender their driver’s license to ICBC, and not drive for the term of the prohibition.
-=== 2. Road Racing ===
+For more information on the Driver Improvement Program, see http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program
-Part 7 of the MVA includes street racing provisions. This offence has recently become a major public issue and authorities treat it very seriously. Street racing will also be considered an aggravating factor for other offences including those in the ''Criminal Code''. Clinicians should refer clients to a lawyer to seek advice with these problems.
+=== 2. Driver Improvement Program – Class 7 license/ Novice Drivers ===
-“Race” includes circumstances in which, taking into account the condition of the road, traffic, visibility, and weather, the operator of a motor vehicle is operating the motor vehicle without reasonable consideration for other persons using the highway or in a manner that may cause harm to an individual, by doing any of the following:
+Novice drivers, including those in the “L” or “N” categories may be referred to the Driver Improvement Program with as little as 2 points on their record. As well, drivers in the graduated licensing program cannot exit the program (i.e. get a full, non-N, license) until 24 months after a prohibition.
-*a) outdistancing or attempting to outdistance one or more other motor vehicles;
-*b) preventing or attempting to prevent one or more other motor vehicles from passing; or
-*c) driving at excessive speed in order to arrive at or attempt to arrive at a given destination ahead of one or more other motor vehicles.
-According to s 243, a peace officer may cause a motor vehicle to be taken to and impounded for 30 days at a place directed by the peace  officer if the peace officer has reasonable and probable grounds to believe that:
+The Driver Improvement Program appeal process is detailed below.
-*a) a person has operated the 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; and;
-*b) the person who operated the motor vehicle had, within two years before the day of the impoundment, operated a motor vehicle that was  impounded under s 242 and that impoundment was not withdrawn under s 242(11).
-== C. Federal (Criminal) Driving Offences ==
+=== 3. Other Reasons for Prohibitions ===
-=== 1. Dangerous Operation of a Motor Vehicle ===
+The superintendent may prohibit you from driving for other reasons, including:
+* 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.
-Under the ''Criminal Code'', it is an offence to operate a motor vehicle in a manner that is dangerous to the public having regard to the  nature, condition, and use of a highway or other public place as well as the amount of traffic that at the time is, or might reasonably be expected to be, at that place (''Criminal Code'' s 249(1)(a)).
+== B. Appeals ==
-In the absence of death or bodily harm, an offender under s 249(1)(a) is guilty of an indictable offence and is liable to imprisonment for up to five years or is guilty of an offence punishable on summary conviction (s 249(2)).
+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, or at any ICBC driver licensing office.
-If the dangerous driving results in bodily harm, an  indictable offence has been committed and the driver may be liable to imprisonment for up to 10 years (s 249(3)). If the dangerous driving results in death, an indictable offence has been committed and the driver may be liable to imprisonment for up to 14 years (s 249(4)).
+For more information on the Driver Improvement Program and guidelines, see http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/driver-medical/improvement-programs-for-high-risk-drivers/administration-of-the-driver-improvement-program
-Dangerous driving (s 249) is included in the offences created under ''Criminal Code'' ss 220 (causing death by criminal negligence), 221 (causing bodily harm by criminal negligence), and 236 (manslaughter). If there is not enough evidence to prove one of the three offences above, it is still possible to convict under s 249 (''Criminal Code'' s 662.5).
+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 (''Motor Vehicle Act'' s 93(3)). The ''Motor Vehicle Act'' 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 (''Motor Vehicle Act'' s 25(12)(a)). An appeal of the Superintendent’s decision to uphold the driving prohibition must be made in the BC Supreme Court and occur within 30 days of the Decision (''Motor Vehicle Act'' s 94(1)).
-=== 2. Criminal Negligence ===
+== C. Automatic Prohibitions ==
-This section is not specifically aimed at motor vehicle operators, but is applicable in some circumstances. Under the ''Criminal Code'', criminal negligence involves acts or omissions showing “wanton or reckless disregard for the lives or safety of other persons” (s 219). In Canada, the law surrounding the ''mens rea'' requirements for criminal negligence was clarified in ''R v Creighton'', [1993], SCJ No 91. The  standard is to be measured by a modified objective test: whether the accused’s conduct constituted a marked departure from that of the  reasonable person given all the circumstances. Characteristics personal to the accused will not be considered with the exception of accused’s incapacity to appreciate the nature of the risks associated with his or her actions.
+A driver convicted of a ''Criminal Code'' motor vehicle offence is automatically prohibited from driving for a period of one year (''Motor Vehicle Act'' s 99). The automatic prohibition also applies to some offences under the ''Motor Vehicle Act'', including:
-In ''R v Beatty'', 2008 SCC 5, [2008] SCJ No 5,the Court addressed the issue of criminal negligence in the context of dangerous driving.  Unlike Creighton, there is no substantive dissent, though five of the newer Supreme Court justices took a slightly different approach to the  modified objective test. They noted that the actual (subjective) state of mind of the accused at the time of the accident is relevant in determining if there was a marked departure from the standard of the reasonable person. In ''Beatty'', a momentary lapse of attention with no other evidence of dangerous driving was held '''not''' sufficient to warrant criminal sanction under s 249 (criminal negligence causing death).
+a) s 95: driving while prohibited by order of peace officer or Superintendent;
-If the negligence results in death, an indictable offence has been committed and the driver may be liable to life imprisonment (s 220). If the  negligence results in bodily injury, an indictable offence has been committed and the driver may be liable to imprisonment for 10 years (s 221).
+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 ''Motor Vehicle Act'' 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.
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