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| Please note that this chapter is directed towards a general motoring audience. Commercial drivers should seek legal advice specific to their situation and needs. | | Please note that this chapter is directed towards a general motoring audience. Commercial drivers should seek legal advice specific to their situation and needs. |
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| CHAPTER 2: GOVERNING LEGISLATION AND RESOURCES
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| == A. Provincial Driving Offences ==
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| === 1. Authority of Peace Officers ===
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| 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.
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| Pursuant to MVA s 79 a peace officer may arrest without warrant any person:
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| *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
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| *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
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| *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.
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| === 2. Procedure ===
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| :'''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.'''
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| 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.
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| 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)).
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| 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)).
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| 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)).
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| In challenging a ticket, it is important to:
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| *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.
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| *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.
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| *Pursuant to provisions in the OA, the Crown can easily amend most mistakes on Violation Tickets.
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| *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.
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| *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.
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| 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.
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| 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.
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| === 3. Penalties ===
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| '''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.
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| ==== a) Penalty Points ====
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| 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 [[Examples of Penalty Points and Fines for Motor Vehicle Offences (13:App A) | Appendix A]] for examples of offences and their corresponding penalty points.
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| 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.
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| ==== b) Fines ====
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| The VTAFR prescribes fines for MVA offences. [[Examples of Penalty Points and Fines for Motor Vehicle Offences (13:App A) | Appendix A]] lists some examples of fines.
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| ==== c) License Suspension or Cancellation and Driving Prohibition ====
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| ===== (1) Roadside Suspension or Prohibition Issued by a Peace Officer =====
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| These are explained in further detail in [[Motor Vehicle Offences for Drugs and Alcohol (13:IX) | Section IX: Offences Related to Drugs and Alcohol]]. Police officers may issue suspensions of different lengths:
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| *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
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| **a) 3 days, in case of first prohibition,
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| **b) 7 days in case of second prohibition, or
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| **c) 30 days in case of subsequent prohibitions. (MVA s 215.43(1))
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| *A person served with a notice of driving prohibition under s 215.41 is prohibited from driving for 90 days in circumstances where
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| **a) An Approved Screening Device registers a fail, or
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| **b) The person refuses or fails to comply with a demand as described in s 215.41(4)
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|
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| ===== (2) By Order of a Court =====
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| 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.
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| 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)).
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|
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| ===== (3) By Order of the Superintendent =====
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| MVA s 90(1) states that the Superintendent may suspend a license and number plates if there is:
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| *a failure to obtain automobile liability insurance;
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| *indebtedness to ICBC for reimbursement of money paid in respect of a claim; or
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| *indebtedness to the government for failure to pay fines.
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| 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)).
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| Failure to appear for or to pass a driver's examination may lead to a license being suspended or cancelled (MVA s 92).
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| 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)).
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| 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.
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| 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)).
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| ===== (4) Automatic Prohibition =====
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| 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:
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| *a) s 95: driving while prohibited by order of peace officer or Superintendent;
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| *b) s 102: driving while prohibited by operation of law;
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| *c) s 224: impaired driving; or
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| *d) s 226(1): refusing to give a blood sample.
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|
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| 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:
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| *a) s 220: criminal negligence causing death;
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| *b) s 221: criminal negligence causing bodily injury;
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| *c) s 236: manslaughter; or
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| *d) s 249(1)(a), (3) or (4): dangerous operation of a motor vehicle.
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|
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| ==== d) Impoundment of a Motor Vehicle ====
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| Drivers risk having their motor vehicles impounded when:
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|
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| ===== (1) Driving Without a License =====
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| Drivers who are not exempt from holding a license risk having their vehicle impounded if:
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| *a) the driver has not received a license because:
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| **the driver is in debt to ICBC for reimbursement of money paid in respect of a claim (MVA s 26(1)(b));
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| **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
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| *b) the driver’s license has been cancelled:
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| **for failure to pay a ''Criminal Code'' or MVA fine (MVA s 27(3));
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| **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
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| *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.
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|
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| ===== (2) Impoundment for Racing =====
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| 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)).
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|
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| ===== (3) Excessive Speeding =====
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| 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.
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|
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| ===== (4) Alcohol or Drug Induced Impairment =====
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| 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.
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| 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)
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| 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)
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| See [[Motor Vehicle Offences for Drugs and Alcohol (13:IX) | Section IX: Offences Related to Drugs and Alcohol]] below for more information.
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|
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| ==== e) Prison ====
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|
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| '''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.
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|
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| ==== f) Breach of Insurance Conditions ====
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| 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.
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| == B. Federal (Criminal) Driving Offences ==
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|
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| === 1. Authority of Peace Officers ===
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|
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| Pursuant to s 495(1) of the ''Criminal Code'', a peace officer may arrest without warrant:
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| *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;
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| *b) a person who the peace officer finds committing a criminal offence; or
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| *c) a person of whom the peace officer has reasonable grounds to believe that a warrant of arrest or committal is in force.
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|
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| 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”.
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|
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| 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.
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|
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| === 2. Procedure ===
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|
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| Consult [[Introduction to Criminal Law (1:I) | Chapter 1: Criminal Law]] for more information on LSLAP criminal procedure.
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|
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| 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.
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|
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| LSLAP will usually only represent clients for ''Criminal Code'' offences where:
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| *a) the client cannot afford a lawyer;
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| *b) the client has been turned down by Legal Aid;
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| *c) the offence does not involve drugs or alcohol;
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| *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
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| *e) in the opinion of the Supervising Lawyer, the possibility of imprisonment is not significant.
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|
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| === 3. Penalties ===
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|
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| ==== a) Fines or Imprisonment ====
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| 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.
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|
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| ==== b) Penalty Points ====
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|
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| The MVAR prescribes penalty points that are attached to specific motor vehicle offences. See [[Examples of Penalty Points and Fines for Motor Vehicle Offences (13:App A) | Appendix A: Examples of Penalty Points and Fines]].
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|
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| ==== c) Prohibition from Driving ====
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|
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| 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.
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|
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| ==== d) Impoundment of a Motor Vehicle ====
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| Please see [[{{PAGENAME}}#d) Impoundment of a Motor Vehicle | Section II.A.3(d)]] for impoundment with respect to provincial penalties.
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|
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| ==== e) Breach of Insurance Conditions ====
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|
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| 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:
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| *s 220: criminal negligence causing death;
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| *s 221: criminal negligence causing bodily injury;
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| *s 249: dangerous operation;
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| *s 252: leaving the scene of an accident;
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| *s 253(a): driving with a blood alcohol level over .08;
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| *s 253(b): driving while impaired;
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| *ss 255(2) or (3): causing bodily harm or death while impaired;
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| *s 259(4): driving while disqualified; and
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| *s 254(5): refusing to provide a breath/blood sample.
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|
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| 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)).
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| CHAPTER 3 AT THE ROADSIDE
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|
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| Most motor vehicle law issues begin at the roadside, in an interaction with a police officer or other Peace Officer. This section discusses common issues encountered at the roadside, and provides an outline of your rights when you are stopped by a peace officer.
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|
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| =A. Powers of Peace Officers=
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| Police officers have the power to stop drivers to check for the fitness of the motor vehicle, possession of a valid driver’s license, proper insurance, and sobriety of the driver. Police officers do not need a warrant, or even reasonable and probable grounds to perform such stops. '''The fact that you are driving on a public highway is enough to justify a vehicle stop.'''
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|
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| 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.
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|
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| Pursuant to Motor Vehicle Act s 79 a peace officer may arrest without warrant any person:
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|
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| 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 Motor Vehicle Act ss 95 or 102 (driving while prohibited)(s 79(a)); or
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|
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| 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
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|
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| c) whom the officer has reasonable and probable cause to believe has contravened Motor Vehicle Act s 68 (leaving the scene of an accident) (s 70(c))
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|
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| and may detain the person until he or she can be brought before a justice.
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|
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| =B. Your Obligations=
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|
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| When stopped by a peace officer while driving, you must, upon request, provide your driver’s license, vehicle registration, and proof of insurance. If these items are located in the glove compartment or other out-of-sight location, it may be advisable to ask the officer for permission to retrieve them before reaching for them, so that the officer does not think that you are reaching for a weapon.
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|
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| When requested by a peace officer, you must provide a sample of breath. More information on breath samples is available in section IX of this chapter.
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|
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| You have specific obligations at the scene of a collision. They are outlined in the next section of this chapter.
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|
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| =C. The Right to Silence=
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|
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| The right, under sections 7 and 11(c) of the ''Charter of Rights and Freedoms'', to remain silent and not be required to make self-incriminating statements, generally applies in the motor vehicle context.
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|
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| With the exception of providing license, registration, and insurance, providing a sample of breath, and providing a statement at the scene of a collision in which you were involved, you are not obligated to make a statement to the police, or to answer their questions.
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|
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| You also have the right to contact a lawyer before you make any statement. In ''R v Suberu'', 2009 SCC 33, the Supreme Court of Canada found that the right to speak to a lawyer arises as soon as a person is detained, even though they have not been formally arrested yet. In ''R v Grant'', 2009 SCC 32, the court found that “detention” begins as soon as there is physical or psychological restraint imposed by the police that prevents a person from leaving.
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|
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| In summary, your right to silence continues to operate when you are stopped in a vehicle by the police. If the response to you (politely) asking whether you are free to go is anything other than an unqualified “yes”, you should assume you are being detained, and may wish to exercise your right to remain silent so as to avoid making statements that may incriminate you. '''Any admissions that you make at the roadside can be, and most likely will be, used against you in court.''' Remember that police officers are collecting evidence at the roadside. If you are arrested, you should ask to speak to a lawyer as soon as possible, and avoid making any statements until you have had an opportunity to speak to a lawyer.
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|
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| =D. Vehicle Standards=
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|
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| ==1. Equipment Standards in General==
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|
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| The general rule is that a “person must not drive or operate a motor vehicle or trailer on a highway or rent a motor vehicle or trailer unless it is equipped in all respects in compliance with this Act and of the regulations” (''Motor Vehicle Act'' s 219(1)). Section 219(2) permits a peace officer to require the inspection of a registered owner’s motor vehicle and motor vehicles at a rental firm.
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|
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| Under ''Motor Vehicle Act'' s 25.30, where a police officer has reasonable and probable grounds to believe that a vehicle is unsafe for use on a highway, regardless of whether or not the vehicle actually meets the standards prescribed under the ''Motor Vehicle Act'', the officer may:
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|
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| a) order the vehicle removed from the highway until repairs as ordered by the officer are completed or the peace officer revokes the order; and/or
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|
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| b) order the surrender of the vehicle license and/or number plates.
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|
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| Seat belt issues, discussed below, are the most common source of equipment standards issues, but for a complete list of required standards, please consult the ''Motor Vehicle Act'' and ''Regulations''.
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|
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| ==2. Seat Belt Assembly==
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|
| |
| Section 220 of the ''Motor Vehicle Act'' requires that any motor vehicle manufactured after December 1, 1963 must be equipped with at least two front seat belt assemblies before it is sold or operated.
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|
| |
| Section 220(4) requires that when the motor vehicle is operated, these assemblies must be properly fastened except as per s 220(5):
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|
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| a) when a person is driving in reverse, or
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|
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| b) in the case of a person engaged in work which requires frequent alighting and in which the maximum vehicle speed is 40 km per hour.
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|
| |
| Courts have upheld the rules enforcing mandatory seat belt use as they are held not to be an infringement of an individual’s ''Charter'' rights. The provisions are integral to the broad legislative scheme promoting highway safety and minimizing the overall human and economic cost of accidents. The alleged infringement of a person’s right to free choice is so insignificant that it cannot be considered a measurable breach of ''Charter'' rights: ''R v Kennedy'', [1987] BCJ No 2028, 18 BCLR (2d) 321 (CA).
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|
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| CHAPTER 4 DUTIES AFTER A COLLISION
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| =A. Remain at Scene=
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| ==1. Motor Vehicle Act Provisions==
| |
| Pursuant to Motor Vehicle Act s 68(1), the driver of a vehicle involved in an accident must:
| |
| * Remain at the scene or return immediately,
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| * Render all reasonable assistance, and
| |
| * Produce, in writing, her or his name and address, the registered owner’s name and address, the vehicle license number, and particulars of insurance.
| |
|
| |
| It is an offence to omit to do the duties specified in Motor Vehicle Act s 68(1). The reason or motive for leaving the scene is irrelevant. Since this is a strict liability offence, the defence of due diligence may be available to an accused.
| |
|
| |
| ==2. Criminal Code Provisions==
| |
| Under Criminal Code s 252(1), it is an offence for a driver involved in an accident with (a) a person, (b) a vehicle, vessel or aircraft, or (c) cattle in the charge of another person to fail to remain at the scene of an accident with the requisite intent of escaping civil or criminal liability. From s 252(2), “in the absence of any evidence to the contrary,” the failure to stop raises a presumption of intent to escape civil or criminal liability. However, if a person charged with a criminal offence can show that he or she left the scene for some other purpose, even where that purpose was itself unlawful, that person is entitled to an acquittal. A person who is convicted for failing to remain at the scene of an accident is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years or is guilty of an offence punishable on summary conviction (s 252(1.1)).
| |
|
| |
| =B. Provide Information=
| |
| ==1. Duty to Provide Information Under the Motor Vehicle Act==
| |
| If asked, the owner or a person in a motor vehicle that a peace officer believes has been involved in an accident or a violation of the Motor Vehicle Act, must provide any information respecting the identity of the driver at the time of the accident (Motor Vehicle Act s 84). The person has the right to remain silent until he or she speaks to a lawyer, which may be appropriate in certain circumstances.
| |
| ==2. Police Accident Reports==
| |
| Although accident reports are not open to public inspection, parties to the accident may obtain license numbers from the reports as well as names of drivers, registered owners, and witnesses (Motor Vehicle Act s 249(2)).
| |
| =C. Duties Where Damage to Unattended Vehicles or Property=
| |
| ==1. Damage to Unattended Vehicles==
| |
| Under the Motor Vehicle Act s 68(2), the driver, operator, or any other person in charge of a motor vehicle that collides with an unattended vehicle must stop, locate, and notify, in writing, the owner of the unattended vehicle of the name and address of the driver, the operator, or any other person in charge of the motor vehicle as well as the registered owner’s name and address and the vehicle license number. The information must be left in a conspicuous place on the damaged vehicle.
| |
| ==2. Damage to Other Forms of Property==
| |
| In the event of damage to property other than another vehicle, the driver, operator, or any other person in charge of the motor vehicle must take reasonable steps to locate and notify the owner of the property, in writing (Motor Vehicle Act s 68(3)). The driver must take reasonable steps to provide the following particulars to the owner of the property: the name and address of the driver, operator, or other person in charge of the vehicle as well as the license number of the vehicle and the name and address of the vehicle’s registered owner.
| |
|
| |
| CHAPTER 5 VIOLATION TICKETS
| |
| =A. General Information=
| |
| What is commonly referred to as a “speeding ticket”, is known legally as a provincial “Violation Ticket”, issued in accordance with the provisions of the Offence Act. This section provides information on Violation Tickets, including how to dispute a Violation Ticket.
| |
|
| |
| An individual charged under the Motor Vehicle Act will receive a violation ticket issued under s 14 of the Offence Act. However, under s 11 of the Offence Act, a person can also be charged criminally for a violation of the Motor Vehicle Act. This is for serious offences such as Motor Vehicle Act 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.
| |
|
| |
| =B. How to Dispute a Violation Ticket=
| |
| These procedures may change from time to time. Refer to the information on the back of your Violation Ticket for the most up-to-date information.
| |
|
| |
| A special procedure for adjudicating violation tickets is set out in sections 14-18 of the Offence Act. To dispute a violation ticket, one must either go to an ICBC office or provincial court registry with the ticket, or mail a “Notice of Dispute Form PTR021”, as well as 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 (Offence Act s 15(3)).
| |
|
| |
| You must file your notice of dispute within 30 days of the day on which the ticket was issued.
| |
|
| |
| Motor Vehicle Act section 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.
| |
|
| |
| More information on disputing violation tickets is available on the BC Ministry of Justice website at: http://www.ag.gov.bc.ca/courts/tickets/provincial/info/dispute.htm.
| |
|
| |
| ==1. What if you miss the 30-day time limit?==
| |
| If you do not file your dispute within 30 days, you must file an “Affidavit Form PTR020”, pursuant to s. 16(2) of the Offence Act, available at any court registry, explaining the reasons for your delay, along with the “Notice of Dispute Form PTR021” and a copy of the ticket. Extensions are not guaranteed, and are at the discretion of the justice considering your application.
| |
|
| |
| ==2. What happens in traffic court?==
| |
| When you attend traffic court, your case will generally be presided over by a Judicial Justice of the Peace, and not a Judge. Justices of the Peace are addressed as “your worship”. The Justice will guide the hearing process. There is no Crown Prosecutor in traffic court, and police officers prosecute the tickets.
| |
|
| |
| Police officers can provide testimony in person, via video- or tele-conference, or by certificate. You cannot be convicted without the evidence of the officer who issued you the ticket. If the police officer who issued your ticket does not attend in person or electronically, and has not submitted a certificate, the officer present cannot provide sufficient evidence to convict you. The officer must provide evidence beyond a reasonable doubt that you committed the offence in question.
| |
|
| |
| The officer prosecuting you may try to convince you to plead guilty to the offence with which you have been charged. Although it is your choice whether to plead guilty, you should keep in mind that you have the right to challenge the validity of the violation ticket. The officer must prove the offence beyond a reasonable doubt, and that the officer cannot prove the offence beyond a reasonable doubt if the officer who issued the ticket is not present. In such situations, you should plead “not guilty”. The presiding justice will most likely dismiss the ticket for “want of prosecution” and the ticket will be dismissed.
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|
| |
| If you plead not guilty, the officer may attempt to adjourn the matter to another day when the other officer can attend. You should oppose this adjournment, and note that you were not given advance notice.
| |
|
| |
| In challenging a ticket, it is important to:
| |
|
| |
| * Read the relevant sections of the Motor Vehicle Act 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 Offence Act, the Crown can easily amend most mistakes on Violation Tickets.
| |
|
| |
| * If you plead guilty and are applying for a fine reduction, the offender must show economic hardship, the justice of the peace has the power to reduce the fine. Section 88 of the Offence Act states that the fine can be reduced based on the offender’s means and ability to pay, subject to minimum fines specified in the Motor Vehicle Act.
| |
|
| |
| In some instances, Legal Aid is available to people charged with an offence under the Motor Vehicle Act 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.
| |
|
| |
| For more detailed information on disputing violation tickets, you may wish to consult the University of Victoria Law Centre’s information on defending traffic tickets at http://thelawcentre.ca/defending.
| |
|
| |
| ==3. What happens if I cannot make the court appearance?==
| |
| You can apply to a justice for an adjournment , by filing the “Application to Adjourn a Hearing PTR818” form. This form can be filed by mailing it to the Violation Ticket Centre address listed above, or filing it at any court registry. All applications should be made within 2 weeks of the scheduled hearing date. In urgent circumstances you can have a lawyer, friend of family member attend and make an application for an adjournment at the date and time of the scheduled hearing.
| |
|
| |
| ==4. What if you miss the court date?==
| |
| If you do not attend the hearing, the ticket will be deemed not disputed, the conviction will apply to your driving record, and the full fine amount will be immediately payable.
| |
|
| |
| Within 30 days of missing the scheduled hearing date you may file an “Affidavit Form PTR019” pursuant to s. 15(10) of the Offence Act, requesting a new hearing date at the registry of the provincial court where your ticket was set to be heard. After 30 days from the missed hearing date you must file “Affidavit form PTR020”, pursuant to s. 16(2) of the Offence Act.
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|
| |
| CHAPTER 6 PROVINCIAL DRIVING OFFENCES
| |
|
| |
| =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.
| |
|
| |
| ==2. Careless Driving==
| |
| Under s 144(1) of the Motor Vehicle Act, it is an offence to drive:
| |
| # without due care and attention;
| |
| # without reasonable consideration for other persons using the highway; or
| |
| # 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 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 7 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.
| |
| “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 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:
| |
|
| |
| 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).
| |
|
| |
| ==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 214.1 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 the 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.
| |
|
| |
| =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.
| |
|
| |
| ==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 he or she can prove that:
| |
|
| |
| # he or she 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));
| |
| # although the registered owner, he or she is not the actual owner (Motor Vehicle Act s 83(5)(b)); or
| |
| # 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:
| |
|
| |
| # driving without a license or without the appropriate class of license (s 24(1));
| |
| # driving while prohibited by order of peace officer or Superintendent (s 95);
| |
| # driving while prohibited by operation of law (s 102);
| |
| # impaired driving (s 224); or
| |
| # 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 him 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 to this chapter provides examples of fines.
| |
|
| |
| CHAPTER 7 VEHICLE IMPOUNDMENT
| |
|
| |
| Your vehicle may be impounded for a variety of offences or reasons. If your vehicle has been impounded, this section details procedures for disputing that impoundment. For information on offences that may result in vehicle impoundment, consult the sections on particular offences in this chapter.
| |
|
| |
| =A. When Can You Dispute Your Vehicle Impoundment?=
| |
| 3 and 7 day impoundments cannot be disputed. Impoundments over 7 days can be disputed. Impoundments must be disputed within 30 days of being issued.
| |
|
| |
| =B. How to Dispute=
| |
| To dispute a vehicle impoundment, you must go to an ICBC vehicle driver licensing office with the notice of impoundment and apply for a review of the impoundment. For more information, you can consult the RoadSafetyBC website on impoundment at http://www2.gov.bc.ca/gov/content/transportation/driving-and-cycling/road-safety-rules-and-consequences/vehicle-impoundment
| |
|
| |
| CHAPTER 8 SUPERINTENDENT OF MOTOR VEHICLES PROHIBITIONS
| |
| =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:
| |
|
| |
| # s 95: driving while prohibited by order of peace officer or Superintendent;
| |
| # s 102: driving while prohibited by operation of law;
| |
| # s 224: impaired driving; or
| |
| # 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:
| |
|
| |
| # s 220: criminal negligence causing death;
| |
| # s 221: criminal negligence causing bodily injury;
| |
| # s 236: manslaughter; or
| |
| # s 249(1)(a), (3) or (4): dangerous operation of a motor vehicle.
| |
|
| |
|
| |
|
| {{LSLAP Manual Navbox|type=chapters8-14}} | | {{LSLAP Manual Navbox|type=chapters8-14}} |
