Is it a criminal offence to drive while your license is suspended?
A question which I often get asked is whether or not driving with a suspended licence is a criminal offence. Before I can answer this, it is important to understand the difference between a suspension, a prohibition and a disqualification. Often when a person uses these words, they use them interchangeably and, in many instances, one can convey the proper meaning irrespective of which term is used. That said, however, these are different terms with different meanings, consequences and implications.
The word “suspension” does not appear in the Criminal Code of Canada in respect of driving licences. In Ontario, the word “suspension” appears numerous times in the provincial driving legislation called the “Highway Traffic Act.” There are many forms of suspensions under this provincial law. Speaking very generally, there are five categories.
- A person’s licence may be suspended by a Court (traffic court, aka Provincial Offences Court) for committing certain kinds of offences. Such license suspensions may be mandatory or discretionary. A mandatory suspension is one where the law says something like “if you are found guilty of X, your licence shall be suspended for Y period of time”. A discretionary suspension is one that says something like “if you are found guilty of X, your licence may be suspended for Y period of time.”
- A person’s licence may be suspended by the MTO (Ministry of Transportation of Ontario) automatically if they have been found guilty of a certain type of offence. This is the case whether or not the Court imposed a driving restriction when sentencing the offender for the offence. A common example of this is ‘driving under suspension’ which, if proven in court, results in another six month suspension being tacked on top of any other suspension.
- A person’s licence may be suspended administratively even without finding of guilt. For example, if a person is accused of having over the legal limit of alcohol in their body, based on the result of an Approved Screening Device, or if that person is charged with refusing to provide a screening device sample, the police will seize the person’s licence and the MTO will suspend that person’s driving privileges for 90 days. In the case of “stunt driving” or “racing” there is a similar type of suspension for seven days.
- A person’s licence may be suspended for not meeting other requirements of the Highway Traffic Act of Ontario, such as enrolling in a program after being found guilty of drinking and driving, or if they don’t meet vision or medical conditions. These medical suspensions can be initiated by a doctor who has seen you and determines you have a condition which can affect your ability to drive. Failing to comply with a family law order can also be a reason to trigger a suspension.
- Finally, the most common reason that peoples’ licences get suspended is for unpaid fines. Sometimes a person gets a ticket for something as minor as not renewing the sticker on their plate in time. When they receive the ticket, they typically go to Service Ontario and get it renewed and often they forget about the ticket. After 15 days (officially it’s 15, but in practice many – but not all – jurisdictions in Ontario give a grace period of up to 30 days extra) the ticket almost always results in a conviction (unless there is a major defect on it) and the fine is owing within 15 days. A fine notice is sent to the person but maybe they have moved; maybe it gets lost in the mail; maybe the same absent-mindedness that led them to forget about the ticket leads them to forget about the fine notice too! And so that little $85.00 fine for an out-of-date sticker can result in your licence being suspended.
When your licence is suspended, to get your licence back you need to remove whatever it is that is suspending your licence. For instance, if you have an unpaid fine, you need to pay the fine; if you have a medical suspension, you need to provide the Ministry with proof the condition no longer affects you; if you receive an administrative suspension or one imposed by the Court, you need to let time elapse. In some rare instances, you can go to an administrative tribunal to overturn the suspension, but this is typically only in very narrow cases (such as a suspension imposed for committing an offence where you prove someone impersonated you). You can also appeal the decision that led to the suspension (if it is court imposed). This also overturns suspensions. In cases where you don’t overturn the suspension but merely cure whatever caused it, you need to pay a reinstatement fee to the MTO.
A “prohibition” refers to an order made by the criminal Court (a prohibition order) after being found guilty for a certain type of offence. Like suspensions, prohibitions can be mandatory or discretionary. For example, a first time impaired driving conviction will result in a minimum 1-year prohibition. A conviction for a first time “dangerous driving” offence has a discretionary prohibition order meaning the judge often imposes a period of a year, but can impose less, or none at all. Ironically though, if you are found guilty for dangerous driving, even if you don’t receive a prohibition, you will still receive a 1-year suspension (first time offence). This can be confusing to many.
This also brings up another issue – the territorial limitations of a suspension or prohibition. A suspension imposed by the MTO only applies in the Province of Ontario. This means that you can still drive outside of Ontario (although if you are an Ontario licence-holder, you no longer have a valid licence if you are suspended and most other places in the world make it an offence there to drive with a foreign licence that isn’t valid. But if you have a Quebec licence for example, many (but not all) suspensions given out in Ontario will not affect the validity of a foreign licence like a Quebec or New York state licence. Your privileges to drive, however would still be suspended in Ontario (they create a “licence file” for everybody who gets charged by police for anything) and so you could still drive in other places. It is worth repeating that many suspensions don’t apply outside of Ontario but certain suspensions do, and this depends on legislation or other policies regarding reciprocity of suspensions. You should consult a lawyer before assuming your licence is valid.
Unlike a suspension, a prohibition imposed by a judge anywhere in Canada is in effect everywhere in Canada. Some of the same considerations apply to foreign (outside of Canada) licences, as apply to suspensions.
A “disqualification” is a term found and defined in Section 259(5) of the Criminal Code of Canada. It reads:
Definition of disqualification
259 (5) For the purposes of this section, disqualification means
- a prohibition from operating a motor vehicle, vessel or aircraft or any railway equipment ordered under any of subsections (1), (1.01), (2) and (3.1) to (3.4); or
- in respect of a conviction or discharge under section 730 of any offence referred to in any of subsections (1), (1.01), (2) and (3.1) to (3.4), a disqualification or any other form of legal restriction of the right or privilege to operate a motor vehicle, vessel or aircraft imposed
- in the case of a motor vehicle, under the law of a province, and
- in the case of a vessel or an aircraft, under an Act of Parliament.
What this means is that it is a crime to drive while “disqualified” and you are disqualified if you have been either (A) given a prohibition by a judge; or (B) given “a disqualification or any other form of legal restriction of the right or privilege to operate” a car. What this means is if you are found guilty of a criminal offence, for example, and you don’t receive a prohibition or your suspension extends beyond the prohibition, then you are still considered to be driving while disqualified.
One common example is that a person who is convicted for driving over the legal limit of alcohol will typically (for a first offence) receive a one-year prohibition and also – simultaneously – a one-year suspension. However the one-year provincial suspension will continue to run beyond one year, until the person completes some requirements such as attending a course and installing an ignition interlock device in their car. Therefore, although the driving prohibition is over at the one-year mark, the disqualification continues until the provincial sanctions are finished.
Another common example is where a person is convicted for drinking and driving and the Crown does not allege a previous record (either due to a negotiated settlement or due to the previous conviction being lost or not noticed in the case file) a judge may impose a one-year prohibition; however, the MTO’s records will typically reflect the prior conviction and therefore they will suspend the person for three years. The second and third years are part of a provincial suspension but it still constitutes a disqualification.
- Section 53(1) of the Highway Traffic Act makes it an offence to drive while suspended. There is a fine of at least $1,000.00 (up to $5000) for a first offence, and an automatic statutorily imposed suspension of an additional six months. Furthermore, you can also go to jail for up to six months. This is not, however, a criminal offence and you would not get a criminal record for this. Your driving record will reflect it and your insurance will likely punish you severely for it with higher premiums or possible cancellation.
- Section 259(4) of the Criminal Code makes it an offence to drive while disqualified. This is a criminal offence and can give you a criminal record. It is possible to get a “discharge” but even if you receive a discharge, you will still (in Ontario) receive a suspension. Depending on a number of factors, you can go to jail for up to five years. However, normally, the maximum jail term is six months.
- Practically speaking, for a first time offence under s.53 of the HTA a prosecutor will often give you a break and allow you (if the reasons for the suspension are not egregious) to plead to a lesser offence (the infraction of having an invalid, akin to an expired, licence). If not, or if you’ve gotten that break before, you typically receive something near the minimum penalty. For a second offence the fines go up and in some jurisdictions you are at risk of going to jail. For a third offence jail is realistically on the table. And so on.
- Under the Criminal Code, the Courts (and Crown prosecutors) generally treat driving while disqualified as a serious offence, particularly if the driving occurs somewhere near the beginning of the prohibition/disqualification. The reason is pragmatic. Many people who receive a disqualification continue to drive and just hope they don’t get caught. If penalties were not strict, assuming this risk might be ‘worth it.’ Accordingly, through the use of stiff penalties, the Courts and the Crown try to make people feel that it’s “not worth it” to drive. Typically even for a first offender, 30 days jail is a realistically common outcome.
- Section 53(1.1) of the Highway Traffic Act also creates an offence of driving while under suspension if it’s for a drinking-and-driving suspension. This, as discussed above, technically qualifies as a disqualification; however, some police officers have been known to charge with this offence to keep a person out of the criminal system. It is confusing and somewhat arbitrary when this regime applies as opposed to the criminal regime. In any event, under this subsection the minimum fine goes up to $5,000.00 and the maximum fine is $25,000.00.
Lastly, one related question I get frequently is “Can I get a restricted licence so I can drive to work?” The answer to this question is “no.” In Quebec, such a thing may exist for some suspensions; however, David Anber is a Canadian Legal Advisor which means outside of Ontario, he can only provide general advice on matters relating to federal statutes. The rules governing restricted licences in Quebec are in the provincial domain.
So this last topic is dealing solely with Ontario. Many people have either heard about Quebec examples or are mixing this up with a probation order. A probation order (as opposed to a prohibition order) is an order which forms part of a sentence either under the Criminal Code of Canada or the Provincial Offences Act of Ontario. In cases where a person does not receive a suspension or other form of disqualification, a person can still be placed on probation. This becomes practically useful in plea negotiations. For example someone who drives drunk or is found in care or control of a vehicle while intoxicated will – if found guilty – receive a prohibition and suspension. This means no driving. Period. For a set period of time. Sometimes, with the prosecutor’s permission a negotiated outcome to the case could be to change the charge to something else – for instance “Careless Driving” under the HTA or “mischief” under the Criminal Code. Neither of those offences come with a mandatory driving suspension (in fact “mischief” doesn’t come with any potential driving restrictions). And so, the parties to such a deal can negotiate a probation order that says “not to drive a motor vehicle except in XYZ conditions.” Those conditions can include at certain times; only for employment purposes; with no alcohol in one’s body. Like all probation orders, this is just imposing a condition which normally would be legal and making it illegal under the terms specified in the probation order. If you were to breach that you would be charged with breaching a probation order. For reasons similar to why driving disqualified is punished severely, breaches of probation orders typically result in jail sentences. Lastly on this subject, in addition to probation orders, a person awaiting trial who is on bail might be under similar conditions not to operate a motor vehicle or to only operate it under certain conditions. These are criminal offences (unless the probation/bail is under the Provincial Offences Act in which case it would not be criminal.)
As can be seen, the law surrounding driving while suspended, disqualified, contrary to a prohibition order, contrary to a probation order, or contrary to bail conditions (undertaking or recognizance of bail entered into before an officer or before a judge or justice) is complicated.
To ask David Anber or another lawyer at the firm a question about these subjects, contact us for a free consultation.