Understand the law. To know how to fight a Driving While Suspended charge in Ontario, it’s important to understand the law that you have been charged under.
You have been charged with “Driving Under Suspension,” under section 53(1) of the Ontario Highway Traffic Act.
You will need to appear in court – When you were charged, the police gave you a summons to appear in court.
Your court appearance is NOT your trial date – The summons directs you to appear in court for a court date called the “First Appearance.”
Your vehicle may have been towed, and you are responsible for costs associated with the towing.
The penalties for Driving Under Suspension are found in section 53(1) of the Highway Traffic Act of Ontario. (Click here to read the penalties as they are written in the Highway Traffic Act.)
Mandatory 6-month drivers suspensionn – Upon conviction, there is a mandatory 6-month driver’s suspension in Ontario.
Jail – Possible jail time. Up to 6-months in jail.
When you are convicted of Driving While Under Suspension, your insurance company will place you in a “high-risk” category. And the impact of being “high-risk” will be dramatic insurance rate increases.
And, it is possible that your insurance company will cancel your insurance coverage as a result of a conviction.
Yes. You can go to jail for Driving While Under Suspension for up to 6 months for each conviction.
The penalties are severe because Driving While Under Suspension in Ontario is considered a “public safety” offence. Here’s what that means.
The penalties for Driving While Under Suspension in Ontario are purposely defined by the lawmakers as a range. In other words, the penalties are not fixed.
This is very different than the penalties for simple “traffic tickets” such as speeding under section 128 of the Highway Traffic Act. With simple speeding, the fines and demerit point penalties are fixed. There is no discretion with what your penalty is going to be.
However, if you are charged with Driving Under Suspension, the penalties that you are subject to have a very wide range. These penalties are NOT fixed because of the severity of the Driving Under Suspension charge. The more severe your case is, the more severe the penalty will be.
The Justice of the Peace is the final decision maker on what your penalty will be.
However, the Prosecutor (who is the person working for the Ontario government that is in charge of prosecuting the case against you), does have a say in what the penalty will be. But, ultimately, it’s the Justice of the Peace who will decide.
There are many factors that go into the decision making process about what your Driving Under Suspension penalty will be. Some of these factors include:
No. The 6 month driving suspension is mandatory.
There are no exceptions to this rule because the 6 month driving suspension penalty is written into the law. And there is no person that has the legal power to remove that 6 month driving suspension part of the penalty.
No. The charge of Driving While Under Suspension is a law under the Highway Traffic Act of Ontario.
How can you go to jail for a Driving While Suspended charge that is not a criminal charge?
Yes. There are driving related Criminal offences defined in the Criminal Code of Canada. Because these offences are in the Criminal Code, they have much more severe penalties than those under the Highway Traffic Act.
The common driving related criminal offences are:
Criminal Negligence under Section 219 of the Criminal Code. This charge is defined as any one showing “wanton or reckless disregard for the lives or safety of other persons.”
Dangerous Operations of Vehicles under Section 249(1) of the Criminal Code. This charge is laid when a person is driving a vehicle in a manner that is “dangerous to the public”.
Failure to Stop at the Scene of an Accident under Section 252 of the Criminal Code. If a person operating a vehicle is involved in an accident does not stop, or provide identification or offer assistance, then the driver can be subject to this charge.
Street Racing under Section 249.2 of the Criminal Code. Under the Highway Traffic Act, you can be charged with Racing. However, in more serious circumstances, you can be charged criminally with street racing.
Driving While Disqualified under Section 259 of the Criminal Code.
And, there are a series of criminal charges associated with Impaired Driving which include Operation of a Vehicle While Impaired (Section 249), Impaired Driving Causing Bodily Harm (Section 253) and Impaired Driving Causing Death (Section 253).
The focus is how many prior convictions of Driving While Under Suspension you have.
Generally, on a first conviction, there is a fine only, and a 6-month driving suspension.
On a second conviction, there is an increased fine and another 6-month driving suspension.
However, on a third conviction, jail becomes a possibility. And, the more prior convictions you have on your record, the more jail time you may received.
No. The maximum jail time you can get is 6 months in jail.
However, that maximum jail time is for ONE conviction.
If you have MORE than one conviction, then the maximum jail time is potentially 6 months for EACH conviction. So if you have 2 convictions, then jail up to 1-year (in other words, 6 months for each conviction, is a possibility).
Bottom line. A conviction on a Driving While Under Suspension charge in Ontario will significantly impact your insurance payments.
Yes. Insurance companies price your insurance based on how risky a driver you are. And, one of the most important ways they assess how risky a driver you are, is based on your driving record.
Yes. When you are convicted of Driving While Under Suspension, you are considered a “high-risk” driver. An insurance company may then decide that you are too risky of a driver and may refuse to insure you.
3 Years. Your Driving While Under Suspension charge will remain on your driving record (for insurance consideration purposes), for three years.
Anyone can fight their Driving While Under Suspension charge.
And it may be possible to win. And in some cases, it may be possible to get your charges withdrawn, even if you’re guilty.
If there is a big mistake with your charge, it may get withdrawn.
And, there are 2 types of mistakes that can happen with your charge: Fatal Errors, and Minor Errors.
If your charge has a “Fatal Error”.
If your charge has “Minor Error”.
In your disclosure! The disclosure is all the evidence that the court has against you and will be used to prosecute the case against you.
The Prosecutor, upon seeing the Fatal Error, may decide to withdraw the charge.
Or the Justice of the Peace, upon seeing a Fatal Error, may rule that the charge be dismissed.
Be realistic. It’s a small chance that your charge may have a “fatal error”, but it does happen. And it’s worth finding out.
There are valid defences to fight a Driving While Under Suspension charge.
However, most “excuses” are NOT defences. Because a Driving While Under Suspension charge is a public safety offence, the lawmakers made it very difficult to “win” these cases. That means most excuses won’t get you off this charge.
No, this is NOT a defence.
No, this is NOT a defence.
No, this is NOT a defence.
See logic above.
No, this is NOT a defence.
See logic above.
No, this is NOT a defence.
The fact that the ticket that suspended you was a small dollar amount, does not matter legally. See logic above.
No, this is NOT a defence.
Yes, the penalties are severe because the lawmakers want “responsible” drivers on the road. And for those people that do not drive responsibly, the law will punish them appropriately.
To get the best outcome for your Driving While Under Suspension charge, it’s important to know the people involved in your case.
Our court system works like a “boxing match” or “MMA fight.”
Our court system is designed to have two people fighting it out with a referee to make sure each side is following the rules. And, that referee will also decide on the outcome of your case.
There are 3 important people that matter in your case.
These 3 important people each have an important role in your Driving While Under Suspension case.
As you read above, the Prosecutor is not your friend.
The Prosecutor’s job is to convict you of the Driving While Under Suspension charge.
Convicting You (Sorry, It’s Pretty Easy)
But, that’s not the end of the story (and this part is REALLY important)
Bottom line?
The most important thing to remember with any charge – whether you’ve been charged with Driving While Under Suspension, — is that you are presumed innocent.
The charges against you will take time. The legal process does not happen overnight. However, the courts cannot take forever to prosecute the case against you.
As your case proceeds through the court system in Ontario, you will face a series of court dates that include:
Read more about your “First Appearance” below in Chapter 9.
Disclosure is all the evidence that the Prosecutor will use against you as they try to convict you on your charge.
Disclosure includes all the Police Officer notes, witness statements, and technical documents including the notes regarding the radar device.
Yes.
And, it’s important to know that the disclosure you get at your First Appearance may not be complete.
And it is critical to get complete disclosure to properly assess your case’s strengths and weaknesses to mount an effective defence.
Your first court date is called a “First Appearance”. This is the first time you will appear before the court for your Driving While Suspended charge.
When you were charged with Driving While Under Suspension, the police officer gave you a summons with your court details for your first appearance. The details will include the date, time and the court where you need to appear.
Due to COVID-19, many court dates will not be in person. If that’s the case, the court will inform you on how to virtually attend your court date.
Here is a list of most of the courts which handle Driving While Under Suspension charges.
Barrie, Belleville, Bracebridge – Muskoka, Brampton, Brockville – Leeds & Grenville, Caledon East, Cayuga – Haldimand,Chatham – Kent, Cobourg – Northumberland, Cochrane, Cornwall – Stormont, Dundas & Glengarry, Durham, Dryden, Elliot Lake, Espanola, Fort Frances, Goderich – Huron, Gore Bay, Guelph, Haileybury – Temiskaming Shores, Halton Region (Burlington – Halton Hills – Milton – Oakville), Hamilton, Kenora, Kingston, Kitchener – Cambridge – Waterloo Region, Lindsay – Kawartha Lakes, London, Mississauga, Napanee – Lennox & Addington, Newmarket – York Region, North Bay, Orangeville, Orillia, Ottawa, Owen Sound / Walkerton – Grey Bruce, Parry Sound, Pembroke – Renfrew, Perth, Peterborough, Picton – Prince Edward County, Richmond Hill, Sarnia, Sault Ste. Marie, Simcoe – Norfolk, St. Catharines – Niagara Region, Stratford – Perth, Sudbury, Thunder Bay, Timmins, Toronto East, Toronto South, Toronto West, Welland – Niagara Region, Windsor, Woodstock – Oxford.
You can find a complete address list of Provincial Offences courts here
Here’s what’s going to happen at court appearance for your charge.
Meet the Prosecutor and get your evidence – You are going to meet with the Prosecutor. And, that Prosecutor is going to give you the evidence, which will be put into your Disclosure.
Your meeting with the Prosecutor may be very brief because you are simply checking in to let the court know that you are there. In some cases, there may be time to speak with the Prosecutor about your case. Whether there is time (or not) to speak about your case is the decision of the Prosecutor.
After meeting with the Prosecutor, you have 3 options to consider for the next steps.
There is NO downside to ask for this delay. It’s important to understand the charge you are facing, the evidence the court has against you and the penalties that you face. Take the time to make an informed decision.
Lastly, a new court date will be set. Assuming you did not enter a guilty plea, you will appear before the Justice of the Peace and a new court date will be set.
Practically, they are the same thing.
Evidence are the facts upon which the prosecution will use to try to prove the Driving While Under Suspension charges against you.
Disclosure is the “package” of evidence that will be given to you at your first appearance.
Disclosure typically includes a synopsis of the police summary of the case against you, the police officer’s notes, witness statements and a screening form (which an offer for resolution).
Why is disclosure so important in my Driving While Under Suspension case?
Why is there a delay after getting charged with Driving While Under Suspension and my first court date?
Can I get all the evidence against me?
Yes.
You legally have the right to get all the evidence that the court has against you.
Getting all your evidence is NOT a choice of the prosecutor or the court. The court must give you all the evidence. If you do not get all the evidence, it may be possible to get the charges against you withdrawn.
Maybe.
Occasionally, the evidence against you may not be ready by the time you arrive at your first appearance.
In this case the court will set another court date to give the court and the prosecutor more time to get the evidence.
However, if after a few court dates you still don’t have your disclosure, the Justice of the Peace may dismiss the charges against you.
Not necessarily. And this is a very important point to know.
Even when you get your disclosure, that does not mean that you have all the evidence against you. In fact, your disclosure package may be missing some key evidence.
If you suspect there is missing evidence, you can ask the court and the prosecutor, for that additional evidence.
Getting ALL your evidence is critical for you to be able to make an informed decision on how you want to proceed with your case.
No.
The Police Officer is not required to be at your First Appearance. If your case goes to trial, then yes, the Police Officer that charged you will be called upon to give the evidence that he or she has against you.
No. Your “First Appearance” is not a trial. It’s the first time you appear before the court for your Driving While Under Suspension charge.
If you decide to go to trial, then your trial date will be set at some point in the future. That date may be days, weeks, or many months in the future. But your trial will NOT happen on your first appearance.
If you have hired a lawyer, then no. You do not need to attend your First Appearance because your lawyer will attend on your behalf.
If you have not hired a lawyer, then yes. You will need to attend your First Appearance.
The most effective way to fight the charge is to hire an experienced lawyer. The results of your Drive Suspended charges rest with analyzing your disclosure or evidence, speaking with the prosecutor and determining the next steps. An experienced legal professional knows best how to navigate the complex court system to minimize the penalties for your charges.
A Driving While Under Suspension charge (section 53 of the Highway Traffic Act) is a very damaging conviction on your driving abstract. For insurance companies, this is a serious moving violation, and could result in dramatic increases or possible outright refusal of insurance.
Generally, driving infractions will affect your insurance policy for up to 3 years. As far as your driving abstract, it will always remain.
In order to get your charges dropped, there would have to be a fatal error in the provinces disclosure or evidence. If this is the case, a legal professional would argue to have the charges dismissed.
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