DRIVE DISQUALIFIED

  • Drive disqualified is found at s. 259(4) of the Criminal Code. This is a criminal charge will result in a criminal record if convicted. The “normal” penalty imposed by the courts upon conviction is a period of incarceration of 30 days. However, we have on more than one occasion resolved cases for as little as the imposition of a fine. In many instances we have won cases due to the insufficiency in the Crown evidence. The paper work to prove the charge must be in order to prove the prohibition order, and the Crown must prove that the accused had been properly notified and served with the appropriate documentation. In addition, we have defended and won these charges due to the inability of the Crown to prove at trial that actual driving of the motor vehicle or that the offence had occurred on public property.

    Drive under suspension is found at s. 53 of the Highway Traffic Act. This is a provincial driving offence and is not a criminal charge. This carries a minimum fine on a first offence of $1,000.00 plus victim fine surcharge and a mandatory 6 month suspension. On a subsequent offence (if the prior is within 5 years) the minimum fine is $2,000.00. The automatic licence suspension is 6 months.

    However, if the reason for the suspension is as a result of a conviction under the criminal code (eg. Impaired driving, dangerous driving, fail to stop, refuse breath sample) the minimum sentence for a first time offender is a fine of not less than $5,000.00, and for subsequent offences a fine of not less than $10,000.00.

    Driving while disqualified occurs when a Court has prohibited an individual from operating a motor vehicle as a result of a conviction under the Criminal Code.

    For instance:

    1. a person found driving on a road, highway or public place;
    2. who has been found guilty of an impaired driving charge; and
    3. is prohibited from operating a motor vehicle by court order as a result of the Impaired driving conviction;

    is by definition driving while disqualifed pursuant s.259(4) of the Criminal Code.

    Drive Disqualified is viewed by the Court as a blatant disregard of a Judicial Order and is  therefore considered to be a very serious offence. Judges do not take kindly to the breach of their rulings. This explains why the usual tarriff is a period of jail.

    If the Crown proceeds by way of summary conviction, (which they normally do), the maximum penalty is 6 months jail time and the maximum fine of $5000.00.

    Section 42(1) of the Highway Traffic Act states that a person will automatically be suspended from driving for one year upon their first conviction and at least 2 years upon a subsequent conviction for drive disqualified.

    Things you should know:

    1. If convicted your insurance rates will increase dramatically;
    2. If you are involved in an accident your insurance company may refuse coverage as you
    3. Were not a properly licenced driver;
    4. There is a significant impoundment of your vehicle with significant storage costs and towing costs.
    5. Operating an E-bike is not allowed when serving a prohibition order.
    6. The usual penalty is one of incarceration.
    7. There will be driver’s licence consequences.

    There are a number of defences to the charge of drive disqualified. You should consult a lawyer to determine your best course of action. At Zamani Law we offer a free consultation.

    At Zamani Law we offer a free consultation.

    You can rest assured that our highly knowledgeable team of lawyers will analyze your case thoroughly so that you are made aware of all possible defences in your case. All of your questions will be answered and we will recommend your best course of action.

    Contact us anytime at 416-627-1318 for a free initial consultation to learn how we can help.

Did I have to know that the police were pursuing me?

The simple answer is yes. In order to prove the charge, the Crown must show that you were attempting to evade the police. In order for that to be true you must be aware of the fact that the police were following you.

What is the legal basis that a police officer can pull me over?

The police are not entitled to make “arbitrary stops” on a whim. However, they do have significant powers under the Highway Traffic Act to pull a vehicle over. For example, an officer is entitled to pull some over just to determine if he/she is properly licenced, or to check ownership and insurance even when there has been no traffic violation whatsoever.

What if I just drove around the corner of my house?

If you are not trying to evade the police then you will be fine. If you were attempting to get to the sanctity of your home to avoid the police then you are in conflict with the law.

Does it matter how fast I was going?

Speed is not conclusive or necessary. Obviously a high rate of speed would support a finding that the driver was attempting to evade the pursuit. However, any evasive action such as making a number of turns to lose the police will also support a finding of guilt. Off road driving to evade a pursuit is not a defence. The key issue is the “evasion of a pursuit”.

The police are calling me and want me to come in to make a statement. What should I do?

You should contact a lawyer immediately and you should exercise your right to remain silent. Often times the police cannot conclusively identify the driver that got away. See Importance of the Right to Remain Silent above.

  • FAILING TO STOP WHEN SIGNALED/REQUESTED BY A POLICE OFFICER S. 216(1) HIGHWAY TRAFFIC ACT

    A police officer, in the lawful execution of their duties and responsibilities, may require the driver of a motor vehicle to stop. The driver of a motor vehicle, when signaled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

    PENALTIES FOR A CONVICTION UNDER S. 216(1)

    • Fine of not less than $1,000.00 and not more than $10,000.00 and/or
    • Imprisonment for a term of not more than 6 months
    • Possible probation (not mandatory)
    • 7 demerit  points
    • Possible suspension of drivers licence
    • Insurance rate increase

    ESCAPE BY FLIGHT S. 216(3) HIGHWAY TRAFFIC ACT

    If the court makes a finding of guilt under s. 216(1) and is satisfied that on the evidence the accused continued to wilfully evade police after the office gave pursuit the accused will face more serious consequences.

    PENALTIES FOR A CONVICTION UNDER S. 216(3)

    • A fine of not less than $5,000.00 and not more than $25,000.00, and
    • Imprisonment of not less than 14 days and not more than 6 months
    • 5 year licence suspension if no death results
    • 10 years licence suspension if a death results from the pursuit
    • Insurance rate increases

    Fail to stop for police under the Highway Traffic Act is categorized as a “strict liability”offence.  Therefore if you can satisfy the court that you had a reasonable belief that you were not being pursued by the police then you would be found not guilty.

    There are other defenses available as well, for example – necessity.

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