How Can a Driving While Under Suspension Charge Be Defended?

There Are a Few Ways to Successfully Defend a Driving While Under Suspension Charge Including Showing That the Person Accused Was Unaware of the Suspension and Was Without Blame For the Lack of Knowledge, Among Other Strategies.

Similar Questions About Driving While Under Suspension Include:

  • How Serious is a Driving Under Suspended Charge?
  • What Is the Fine For Driving While Suspended?
  • How Will a Driving Under Suspension Charge Affect My Insurance Rates?
  • Can a Person Go to Jail For Driving While Suspended?
  • What Happens If a Person Is Charge With Driving Under Suspension?


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A Helpful Guide For How to Determine a Strategy For Defending a Driving Under Suspension Charge

Suspended Driver Caught Driving By Police Officer A person may find a licence to drive suspended for a variety of reasons including unpaid fines, medical issues, demerit points, support payments arrears, among other things.  Regardless of the reason for the suspension, a person charged with driving while under suspension faces very significant fines, up to six (6) months in jail, or even both.

The Law

The offence of driving while under suspension is found in section 53 of the Highway Traffic Act, R.S.O. 1990, c. H.8 where it is said:

53 (1) Every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under an Act of the Legislature or a regulation made thereunder is guilty of an offence and on conviction is liable,

(a)  for a first offence, to a fine of not less than $1,000 and not more than $5,000; and

(b)  for each subsequent offence, to a fine of not less than $2,000 and not more than $5,000,

or to imprisonment for a term of not more than six months, or to both.

(1.1) Despite subsection (1), every person who drives a motor vehicle or street car on a highway while his or her driver’s licence is suspended under section 41 or 42, even if it is under suspension at the same time for any other reason, is guilty of an offence and on conviction is liable,

(a)  for a first offence, to a fine of not less than $5,000 and not more than $25,000; and

(b)  for each subsequent offence, to a fine of not less than $10,000 and not more than $50,000,

or to imprisonment for a term of not more than six months, or to both.

(2) Where a person who has previously been convicted of an offence under subsection (1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1) (b).

(2.1) Where a person who has previously been convicted of an offence under subsection (1.1) is convicted of the same offence within five years after the date of the previous conviction, the offence for which he or she is last convicted shall be deemed to be a subsequent offence for the purpose of clause (1.1) (b).

(3) The driver’s licence of a person who is convicted of an offence under subsection (1) or (1.1) is thereupon suspended for a period of six months in addition to any other period for which the licence is suspended, and consecutively thereto.

Penalties

As per section 53 of the Highway Traffic Act, the penalties for driving while under suspension can be significant.  Even for a first offence can be summarized as:

  • A fine of up to $5,000 plus twenty-five (25%) percent victim surcharge and court cost;
  • A further suspension period of six (6) months in addition to the existing suspension; and
  • A jail term of up to six (6) months

Additionally, yet separately, significant insurance surcharges will likely apply for three years from the conviction date when the driver is reinstated and able to return to driving.  Furthermore, the surcharges will likely be applied to the higher than usual rating from the Facility Association, or other high-risk insurer, as standard market insurers are unlikely to offer coverage to a driver until the driving while under suspension conviction falls off the record after three years.

Defence
Strategy One

The strategies for defending a driving while under suspension charge are varied and can include, among other things;

The cross-examination of witnesses for the prosecution in a manner that raises a reasonable doubt that the person accused of driving while under suspension was indeed the person that was driving under suspension or was actually under suspension at the time.  Additionally, raising a reasonable doubt that the accused person was driving the type of vehicle forbidden by the suspension or upon the type of roadway forbidden by the suspension.

Strategy Two

Where the prosecution will be able to show beyond a reasonable doubt that the accused person was the person driving a vehicle forbidden by the suspension and upon the type of roadway governed by section 53 of the Highway Traffic Act, a successful defence may still be possible by showing that the accused person acted with due diligence to avoid driving while under suspension.  A due diligence defence strategy requires evidence showing that:

  • The accused driver was unaware of the suspension; and
  • The accused driver was without legal fault for being unaware of the suspension.

Strategy Three

Another defence strategy involves evidence that the allegation of driving while under suspension is improper and requires the accused person, usually via a professional legal representative, to show that:

  • The suspension was actually invalid and thus the accused driver was authorized to drive; or
  • The notice of suspension was improper and therefore invalid.

As above, the offence of driving while under suspension involves very serious penalties including the possibility of jail.  Accordingly, a person charged with driving while under suspension is highly encouraged to obtain professional legal representation for all interactions with the prosecutor, for any motion hearings, for trial including witness examinations, as well as for preparing mitigating factor arguments for sentencing where the accused person is found guilty and convicted of the charge.  A driving while under suspension charge should be viewed as a very serious matter.

Address Concern

Sometimes a person while be accused of driving while under suspension and the person will genuinely be unaware that a suspension was in place.  This can, and often does, occur when the person failed to keep the Ministry of Transportation informed of address details and the Notice of Suspension was mailed to an previous address.  In this situation, it is possible, and perhaps plausible, that the accused person was genuinely unaware of the suspension; however, showing a lack of knowledge is insufficient as a defence.  As above, where an accused person seeks to show a lack of knowledge of the suspension, the person must also be able to show due diligence and a lack of fault for the lack of knowledge.  Accordingly, it is necessary to prove both that the Notice of Suspension was mailed to an improper address and that the accused person is without blame for the mailing to an improper address.

A person accused of driving while under suspension will, generally, be unable to defend the charge solely on the basis that the person was without receipt of, and therefore unaware of, a Notice of Suspension.  As per section 52 of the Highway Traffic Act, a Notice of Suspension is deemed served seven (7) days after the Notice of Suspension was mailed by the Ministry of Transportation to the address on file with the Ministry of Transportation.  Specifically, section 52 of the Highway Traffic Act says:

52 (1) Where a person’s driver’s licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a)  in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b)  in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

(2) Notice sent by registered mail under clause (1) (a) or by mail under clause (1) (b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

Accordingly, keeping a mailing address updated with the Ministry of Transportation is the responsibility of drivers.  For more information about updating an address with the Ministry of Transportation, among other government offices, click here.

Summary Comment

The charge of driving while under suspension comes with severe penalties whereas, even upon a first conviction, the penalty includes a fine of up to $5,000 and the possibility of six (6) months in jail as well as a further six (6) months suspension added onto the suspension already in place.  Furthermore, a driving while under suspension conviction is treated as a serious offence for insurance rating purposes and will likely have very adverse affects for three (3) years.


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