Operating While Prohibited

• Author: Karen Jokinen/Peter Keen
• Pages: 101-125

101

Operating While

Prohibited

6

I. Introduction ............................................. 102

II. Legislation .............................................. 102

III. Elements of the Oence of Driving While Prohibited ............. 103

A. Actus Reus ......................................... 103

B. Mens Rea .......................................... 114

IV. Some Common Questions ................................. 122

V. Criminal Code Prohibitions and Provincial Licence

Suspensions: Constitutionality .............................. 123

A. Criminal Code Prohibitions Are Intra Vires Parliament ...... 123

B. Provincial Suspensions Are Intra Vires the Provinces ....... 124

VI. Conclusion .............................................. 125

© 2023 Emond Montgomery Publications. All Rights Reserved.

102 Impaired Driving and Other Criminal Code Driving Oences

I. Introduction

Section 320.18 of the Criminal Code1 makes it an oence to operate a conveyance

while prohibited from doing so. This section is largely the same as old section 259(4)

of the Criminal Code which made it an oence to operate a motor vehicle, a vessel,

an aircraft, or railway equipment while disqualified from doing so. The terms “pro-

hibited” and “disqualified” are functionally similar, but the definition of “prohibi-

tion” now covers a broader range of court orders. Courts should still be able to rely on

many cases decided under section 259(4) in interpreting section 320.18.

With respect to motor vehicles, section 320.18 of the Criminal Code specifies that

an individual is prohibited from operating a conveyance if barred from doing so by any

Criminal Code order or by any legal restriction imposed by a province in respectof

a Criminal Code conviction. We will refer to these as collateral licence restrictions.

Provinces impose collateral licence restrictions after convictions for many driv-

ing oences, regardless of whether the court imposes a Criminal Code prohibition.

For aircraft, vessels, and railway equipment, collateral licence restrictions may be

imposed by federal legislation.

This chapter reviews the oence of operating while prohibited. A detailed discus-

sion of prohibitions, and provincial consequences arising from convictions, can be

found in Chapter 23, Sentencing. Most litigation surrounding operating while pro-

hibited charges centres on whether the accused was operating a “motor vehicle,”

whether the Crown can prove the prohibition, and on the scope of the driving prohibi-

tion or collateral licence restriction.

II. Legislation

Operation while prohibited

320.18(1) Everyone commits an oence who operates a conveyance while prohibited

from doing so

(a) by an order made under this Act; or

(b) by any other form of legal restriction imposed under any other Act of Parlia-

ment or under provincial law in respect of a conviction under this Act or a discharge

under section730.

Exception

(2) No person commits an oence under subsection (1) arising out of the operation

of a motor vehicle if they are registered in an alcohol ignition interlock device program

established under the law of the province in which they reside and they comply with the

conditions of the program.

1 RSC 1985, c C-46.

© 2023 Emond Montgomery Publications. All Rights Reserved.