Difference between pages "Newcomers to Canada and Family Law" and "Provincial Driving Offences (13:VI)"

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{{JP Boyd on Family Law TOC|expanded = specific}}{{JPBOFL Editor Badge
{{REVIEWED LSLAP | date= August 21, 2020}}
|ChapterEditors = [[Gayle Raphanel]] and [[Rhaea Bailey]]
{{LSLAP Manual TOC|expanded = motor}}
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==Immigration issues==


Problems involving immigration usually crop up because one spouse has sponsored the other spouse into Canada, or a spouse is concerned about deportation once the relationship ends. The discussion that follows provides only an overview of some of these problems. If you have an immigration concern, you really should speak to a lawyer who practises this kind of law.
== A. Common Offences ==


===Permanent resident spouses===
=== 1. Speeding ===


Under new rules that were introduced in October 2012, sponsored spouses are under a ''conditional'' permanent residency status for the first two years. According to the press <span class="noglossary">release</span> from [http://www.cic.gc.ca/english/index-can.asp Citizenship and Immigration Canada]:
The most common provincial offence committed in BC is speeding in violation of section 146 of the ''Motor Vehicle Act''. Generally, drivers must not exceed 50km/h in a municipality or on treaty lands, 80km/h on other highways, and must not operate a motor vehicle at a rate of speed higher than that posted on a sign. S 148.2 of the Motor Vehicle Act lists a defence to speeding: if the sign stating the speed limit was obscured or impossible to read, the accused cannot be convicted. This is an affirmative defence and the burden is on the accused to prove that the sign was obscured or impossible to read.


<blockquote>"The spouse or partner must live in a legitimate relationship with their sponsor for two years from the day on which they receive their permanent resident status in Canada. The status of the sponsored spouse or partner may be revoked if they do not remain in the relationship."</blockquote>
=== 2. Careless Driving ===


In other words, the spouse who has been sponsored into Canada must stay with his or her spouse for at least two years or the spouse risks losing his or her permanent residency. This could be a serious problem if the potential loss of status forced people to stay in abusive relationships. However, the new rules appear to come with some exceptions. Here's more from the press <span class="noglossary">release</span>:
Under s 144(1) of the ''Motor Vehicle Act'', it is an offence to drive:


<blockquote>"The regulations include an exception for sponsored spouses or partners suffering abuse or neglect. The conditional measure would cease to apply in instances where there is evidence of abuse or neglect by the sponsor or if the sponsor fails to protect the sponsored spouse or partner from abuse or neglect. This abuse or neglect could be perpetrated by the sponsor or a person related to the sponsor, whether or not the abusive party is living in the household or not during the conditional period. The exception would also apply in the event of the death of the sponsor."</blockquote>
* a) without due care and attention;


However, no matter what, your spouse may still remain responsible for supporting you and your children. If you are married, you will also remain entitled to claim a share in the family assets.
* b) without reasonable consideration for other persons using the highway; or


Although your spouse still has an obligation to support you as a sponsor, you will not lose your permanent resident status after the first two-year period if you have to apply for welfare, although you will be expected to try to get support from your spouse. If your relationship ended because of abuse, you may not have to try to get support from your spouse. Speak to your caseworker right away.
* c) at a speed that is excessive given the road, traffic, visibility, or weather conditions.


===Non-resident spouses===
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 their driving record. Subject to the minimum fine, s 4 of the ''Offence Act'' 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 ''Motor Vehicle Act Regulations''.


If you do not have permanent resident status, you must seek legal advice and help right away, as the breakdown of your relationship with your sponsor may affect your ability to remain in Canada (if that's in fact what you'd like to do). There are a number of agencies that help immigrants and refugees. Seek them out immediately.
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).


===Sponsoring spouses===
=== 3. Road Racing ===
If you have sponsored your spouse into Canada, you have certain obligations to continue to provide for your spouse's needs. These responsibilities are for a fixed amount of time, and you will have promised to support your spouse when you signed the immigration forms. You have these responsibilities in addition to your responsibilities under the ''[[Divorce Act]]'' and the ''[[Family Law Act]]''. A 2004 case of the Supreme Court, ''[http://canlii.ca/t/1q1m5 Aujla v. Aujla]'', 2004 BCSC 1566 held that a sponsor's obligations under a sponsorship agreement were obligations between the sponsor and the federal government, separate from the sponsor's obligation to pay spousal support under those acts.


If you are a sponsor and your relationship has ended, <span class="noglossary">contact</span> an immigration lawyer right away to find out exactly what your rights and obligations are.
Part 9 of the ''Motor Vehicle Act'' 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''.


===Links===
Per ''Motor Vehicle Act'' s 250, “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:
*[http://www.clicklaw.bc.ca/resource/1073 Legal Services Society booklet, Sponsorship Breakdown]


{{REVIEWED | reviewer = [[Gayle Raphanel]], July 8, 2014}}
* a) outdistancing or attempting to outdistance one or more other motor vehicles;


{{JP Boyd on Family Law Navbox|type=chapters}}
* b) preventing or attempting to prevent one or more other motor vehicles from passing; or
{{Creative Commons for JP Boyd}}


[[Category:JP Boyd on Family Law]]
* 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 ''Motor Vehicle Act'' s 251(1)(e), a peace officer may cause a motor vehicle to be
taken to and impounded at a place directed by the peace officer if the peace officer has reasonable grounds to believe that a person has driven or operated a motor vehicle on a highway in a race or in a stunt and the peace officer intends to charge the person with a motor vehicle related ''Criminal Code'' offence or an offence under section 144 (1), 146 or 148 of this Act.
 
Per ss 253(2) and 3(a), the impoundment period for s 251(1)(e) is seven days, unless the
owner of a motor vehicle has also had a motor vehicle impounded within the last two years
before the present impoundment, in which case the vehicle will be impounded for thirty
days.
 
=== 4. Use of Electronic devices ===
 
Part 3.1 of the ''Motor Vehicle Act'' outlines offences related to the use of electronic devices while driving. Section 214.2 defines an “electronic device” as (a) a hand-held cellular phone, (b) a hand-held device capable of receiving email or text messages, or (c) any prescribed class or type of electronic device. Prescribed electronic devices are further defined in s 3 of the ''Use of Electronic Devices While Driving Regulation'', BC Reg 308/2009 [EDWDR] as any of the following:
 
* Electronic devices that include a hands-free telephone function;
 
* Global positioning systems;
 
* Hand-held electronic devices, one of the purposes of which is to process or compute data;
 
* Hand-held audio players;
 
* Hand microphones; or
 
* Televisions.
 
Exceptions for hands-free use of electronic devices are permitted under s 7 of ''EDWDR''. Further exceptions for persons carrying out special powers, duties, or functions are allowed under s 5.
 
Fines for the use of an electronic device while driving have increased significantly as of June 1st, 2016, and now stand at $368 per offence. As well, 4 penalty points are issued for a violation of this section.
 
“Use” of an electronic device is defined broadly. Per ''Motor Vehicle Act'' s 214.1 use means:
 
* ''(a) holding the device in a position in which it may be used;
 
* (b) operating one or more of the device's functions;
 
* (c) communicating orally by means of the device with another person or another device;
 
* (d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.''
 
Additionally, ''EDWDR'' s 2 adds watching the screen of an
electronic device as use of an electronic device.
 
In [https://www.canlii.org/en/bc/bcpc/doc/2018/2018bcpc101/2018bcpc101.html?autocompleteStr=r%20v%20bainbridge&autocompletePos=3 ''R v Baindridge'' 2018, BCPC 101] the accused was found guilty of the offence for simply holding the device in his hand while driving. The court held that any number of functions of the accused’s phone '''could''' have been used in the position in which he held his phone.  In [https://www.canlii.org/en/bc/bcsc/doc/2017/2017bcsc745/2017bcsc745.html?autocompleteStr=r%20v%20jahani&autocompletePos=1 ''R v Jahani'', 2017 BCSC 745], the accused was found guilty of the offence for plugging his phone into the cord to charge the phone.
 
In [https://www.canlii.org/en/bc/bcpc/doc/2018/2018bcpc183/2018bcpc183.html?autocompleteStr=r%20v%20tannhaus&autocompletePos=1 ''R v Tannhauser'', 2018 BCPC 183], the accused was acquitted of the offence because his cell was programmed with a software that immobilized the phone when a vehicle that is in motion. **This case was appealed and BCCA ordered a new trial. The judge in the BCCA trial said that even though the cell phone could not immediately be used due to the software, it was still an electronic device held in a position in which it may be used, which is illegal [http://canlii.ca/t/j7zgh ''R. v. Tannhauser'', 2020 BCCA 155]. 
 
In [https://www.canlii.org/en/bc/bcsc/doc/2019/2019bcsc360/2019bcsc360.html?autocompleteStr=r%20v%20partridge%202019%20BCS&autocompletePos=1 ''R v. Partridge'', 2019 BCSC],  The accused was observed by a police officer looking downwards whilst driving and when stopped, a cell phone was found wedged between the folds of the passenger seat such that the screen was facing the driver. Accused was convicted. However, the accused was acquitted on appeal because the mere presence of a cell phone within sight of a driver is not enough to secure a conviction, leaving aside a situation where, for example, the screen is illuminated and so the driver may then be utilizing the cell phone in some fashion.
 
== B. Penalty Points ==
 
Penalty points are imposed in accordance with the schedule set out in Division 28 of the ''Motor Vehicle Act Regulations''. It is important to note that conviction for ''Criminal Code'' offences also results in the imposition of penalty points. See [[Examples_of_Penalty_Points_and_Fines_for_Motor_Vehicle_Offences_(13:App_A) | Appendix A]] for examples of offences and their corresponding penalty points.
 
The number of penalty points will be taken into account under ''Motor Vehicle Act'' 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, or novice driver, the Superintendent may suspend the licence for receiving single a 3 point Violation Ticket. [https://www2.gov.bc.ca/assets/gov/driving-and-transportation/driving/publications/driver-improvement-policies-guidelines.pdf More information can be obtained from the Driver Improvement Program Policies and Guidelines].
 
As of December 2017, a class 5 driver who incurs two high-risk offences (Use of Electronic Device; Excessive Speed; and/or Drive Without Due Care or Attention) in a one year period risks losing their driver’s licence up to 5 months.
 
=== 1. ICBC Effects of Penalty Points ===
 
Drivers who have received 4 or more driver penalty points will be required to pay a premium to ICBC, even if they do not own or insure a motor vehicle. In essence, these premiums are a surcharge on Violation Tickets that put a driver beyond 3 penalty points. For more information, see http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Penalty-Points.aspx.
 
== C. Vicarious Liability for Provincial Motor Vehicle Offences ==
 
Pursuant to ''Motor Vehicle Act'' ss 83 and 88, the owner of a motor vehicle is liable for any violation of the ''Motor Vehicle Act'' or ''Motor Vehicle Act Regulations'' unless they prove that:
 
* a) they did not entrust the motor vehicle to the person in possession or exercised reasonable care and diligence when doing so (''Motor Vehicle Act'' s 83(3));
 
* b) although the registered owner, they are not the actual owner (''Motor Vehicle Act'' s 83(5)(b)); or
 
* c) the person committing the offence was not the registered owner’s employee, servant, agent or worker (''Motor Vehicle Act'' s 88(3)).
 
Under ''Motor Vehicle Act'' s 83(4), if an owner is liable for an offence committed by the driver, a fine of not more than $2,000 may be imposed in place of the fine or term of imprisonment specified in the enactment.
 
Under s 83(7), no owner is liable if the driver was convicted under the ''Motor Vehicle Act'' for:
 
* a) driving without a license or without the appropriate class of license (s 24(1));
 
* b) driving while prohibited by order of peace officer or Superintendent (s 95);
 
* c) driving while prohibited by operation of law (s 102);
 
* d) impaired driving (s 224); or
 
* e) refusing to give a blood sample (s 226(1)).
 
Generally, where the driver of a motor vehicle has been convicted of an offence, financial liability rests on them and further relief cannot be sought against the owner of the vehicle.
 
== D. Limitation Period ==
 
An information or Violation Ticket in relation to a ''Motor Vehicle Act'' offence must be laid or issued within '''12 months''' from the date the alleged offence took place (''Motor Vehicle Act'' s 78).
 
== E. Fines ==
 
The Violation Ticket Administration and Fines Regulation prescribes fines for ''Motor Vehicle Act'' offences. [[Examples_of_Penalty_Points_and_Fines_for_Motor_Vehicle_Offences_(13:App_A) | Appendix A]] of this chapter provides examples of fines.
 
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Revision as of 22:52, 28 September 2020

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 21, 2020.



A. Common Offences

1. Speeding

The most common provincial offence committed in BC is speeding in violation of section 146 of the Motor Vehicle Act. Generally, drivers must not exceed 50km/h in a municipality or on treaty lands, 80km/h on other highways, and must not operate a motor vehicle at a rate of speed higher than that posted on a sign. S 148.2 of the Motor Vehicle Act lists a defence to speeding: if the sign stating the speed limit was obscured or impossible to read, the accused cannot be convicted. This is an affirmative defence and the burden is on the accused to prove that the sign was obscured or impossible to read.

2. Careless Driving

Under s 144(1) of the Motor Vehicle Act, it is an offence to drive:

  • 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 their driving record. Subject to the minimum fine, s 4 of the Offence Act 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 Motor Vehicle Act Regulations.

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).

3. Road Racing

Part 9 of the Motor Vehicle Act 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.

Per Motor Vehicle Act s 250, “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:

  • 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 Motor Vehicle Act s 251(1)(e), a peace officer may cause a motor vehicle to be taken to and impounded at a place directed by the peace officer if the peace officer has reasonable grounds to believe that a person has driven or operated a motor vehicle on a highway in a race or in a stunt and the peace officer intends to charge the person with a motor vehicle related Criminal Code offence or an offence under section 144 (1), 146 or 148 of this Act.

Per ss 253(2) and 3(a), the impoundment period for s 251(1)(e) is seven days, unless the owner of a motor vehicle has also had a motor vehicle impounded within the last two years before the present impoundment, in which case the vehicle will be impounded for thirty days.

4. Use of Electronic devices

Part 3.1 of the Motor Vehicle Act outlines offences related to the use of electronic devices while driving. Section 214.2 defines an “electronic device” as (a) a hand-held cellular phone, (b) a hand-held device capable of receiving email or text messages, or (c) any prescribed class or type of electronic device. Prescribed electronic devices are further defined in s 3 of the Use of Electronic Devices While Driving Regulation, BC Reg 308/2009 [EDWDR] as any of the following:

  • Electronic devices that include a hands-free telephone function;
  • Global positioning systems;
  • Hand-held electronic devices, one of the purposes of which is to process or compute data;
  • Hand-held audio players;
  • Hand microphones; or
  • Televisions.

Exceptions for hands-free use of electronic devices are permitted under s 7 of EDWDR. Further exceptions for persons carrying out special powers, duties, or functions are allowed under s 5.

Fines for the use of an electronic device while driving have increased significantly as of June 1st, 2016, and now stand at $368 per offence. As well, 4 penalty points are issued for a violation of this section.

“Use” of an electronic device is defined broadly. Per Motor Vehicle Act s 214.1 use means:

  • (a) holding the device in a position in which it may be used;
  • (b) operating one or more of the device's functions;
  • (c) communicating orally by means of the device with another person or another device;
  • (d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

Additionally, EDWDR s 2 adds watching the screen of an electronic device as use of an electronic device.

In R v Baindridge 2018, BCPC 101 the accused was found guilty of the offence for simply holding the device in his hand while driving. The court held that any number of functions of the accused’s phone could have been used in the position in which he held his phone. In R v Jahani, 2017 BCSC 745, the accused was found guilty of the offence for plugging his phone into the cord to charge the phone.

In R v Tannhauser, 2018 BCPC 183, the accused was acquitted of the offence because his cell was programmed with a software that immobilized the phone when a vehicle that is in motion. **This case was appealed and BCCA ordered a new trial. The judge in the BCCA trial said that even though the cell phone could not immediately be used due to the software, it was still an electronic device held in a position in which it may be used, which is illegal R. v. Tannhauser, 2020 BCCA 155.

In R v. Partridge, 2019 BCSC, The accused was observed by a police officer looking downwards whilst driving and when stopped, a cell phone was found wedged between the folds of the passenger seat such that the screen was facing the driver. Accused was convicted. However, the accused was acquitted on appeal because the mere presence of a cell phone within sight of a driver is not enough to secure a conviction, leaving aside a situation where, for example, the screen is illuminated and so the driver may then be utilizing the cell phone in some fashion.

B. Penalty Points

Penalty points are imposed in accordance with the schedule set out in Division 28 of the Motor Vehicle Act Regulations. 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 Motor Vehicle Act 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, or novice driver, the Superintendent may suspend the licence for receiving single a 3 point Violation Ticket. More information can be obtained from the Driver Improvement Program Policies and Guidelines.

As of December 2017, a class 5 driver who incurs two high-risk offences (Use of Electronic Device; Excessive Speed; and/or Drive Without Due Care or Attention) in a one year period risks losing their driver’s licence up to 5 months.

1. ICBC Effects of Penalty Points

Drivers who have received 4 or more driver penalty points will be required to pay a premium to ICBC, even if they do not own or insure a motor vehicle. In essence, these premiums are a surcharge on Violation Tickets that put a driver beyond 3 penalty points. For more information, see http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Penalty-Points.aspx.

C. Vicarious Liability for Provincial Motor Vehicle Offences

Pursuant to Motor Vehicle Act ss 83 and 88, the owner of a motor vehicle is liable for any violation of the Motor Vehicle Act or Motor Vehicle Act Regulations unless they prove that:

  • a) they did not entrust the motor vehicle to the person in possession or exercised reasonable care and diligence when doing so (Motor Vehicle Act s 83(3));
  • b) although the registered owner, they are not the actual owner (Motor Vehicle Act s 83(5)(b)); or
  • c) the person committing the offence was not the registered owner’s employee, servant, agent or worker (Motor Vehicle Act s 88(3)).

Under Motor Vehicle Act s 83(4), if an owner is liable for an offence committed by the driver, a fine of not more than $2,000 may be imposed in place of the fine or term of imprisonment specified in the enactment.

Under s 83(7), no owner is liable if the driver was convicted under the Motor Vehicle Act for:

  • a) driving without a license or without the appropriate class of license (s 24(1));
  • b) driving while prohibited by order of peace officer or Superintendent (s 95);
  • c) driving while prohibited by operation of law (s 102);
  • d) impaired driving (s 224); or
  • e) refusing to give a blood sample (s 226(1)).

Generally, where the driver of a motor vehicle has been convicted of an offence, financial liability rests on them and further relief cannot be sought against the owner of the vehicle.

D. Limitation Period

An information or Violation Ticket in relation to a Motor Vehicle Act offence must be laid or issued within 12 months from the date the alleged offence took place (Motor Vehicle Act s 78).

E. Fines

The Violation Ticket Administration and Fines Regulation prescribes fines for Motor Vehicle Act offences. Appendix A of this chapter provides examples of fines.

© Copyright 2023, The Greater Vancouver Law Students' Legal Advice Society.