What is Driving While Disqualified (Operation While Prohibited)?

If you've heard the terms "driving while disqualified" or "operation while prohibited," you probably assume they are the same as "driving while your license is suspended." "Suspended?" "Disqualified?" "While prohibited?" What's the diff, right?

There is a big difference, and the Greater Toronto Area defence lawyers at TorontoDUI will advise you that the penalties for "driving while disqualified"—now codified as "operation while prohibited"—are far more severe than those for driving while your license is suspended. The most significant difference is that driving while disqualified is a federal criminal offence, whereas driving while suspended is a provincial offence under the Ontario Highway Traffic Act. Let's take a deeper dive into what differentiates driving while disqualified and driving while suspended.

Reasons for License Suspensions

Driving is a privilege, not a right. Drivers can jeopardize this privilege by running afoul of any of the more than 500 motor vehicle-related offences detailed in Ontario's Highway Traffic Act or several criminal driving-related offences in Canada's Criminal Code. The Ontario Ministry of Transportation can order a license suspension for numerous reasons, including:

• Conviction of Criminal Code motor vehicle-related offences like DUI, dangerous driving, failing to stop for police, and causing death or bodily harm in an accident due to criminal negligence.
• Specific Highway Traffic Act offences like stunt driving, excessive speeding, careless driving, and uninsured driving.
• Failing to pay traffic offence fines.
• Accumulating too many driving demerit points.
• Immediate 90-day administrative suspension for refusing a roadside drug or alcohol test.
• Temporary administrative suspensions for registering a "warn" range reading in roadside breath testing.
• Medical reasons.
• Novice-driver violations.
• Failing to pay child support.

Among these license suspension reasons, if police catch you driving while your license is suspended for a Criminal Code conviction, they can charge you with driving while disqualified. The other license suspension categories can lead to driving while license suspended charges if police catch you.

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Provincial Driving While License Suspended Charges

Section 53 (1) of Ontario's Highway Traffic Act describes the offence of driving while your driver's license is suspended as:

"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."

Section 53 (3) of the Act further mandates the additional suspension of the driver's license for six months. As previously noted, the offence is not "criminal" and will not result in a criminal record. However, the provincial Act intersects with the Criminal Code "operation while prohibited" offence in ways that enhance penalties.

Understanding the Federal Driving While Disqualified Offence

The first thing to know about driving while disqualified is it is no longer codified as such in the Criminal Code. Legislators repealed Section 259(4), "driving while disqualified" language in the Code in 2018 and replaced it with Section 320.18 , "operation while prohibited." However, the legal field in Ontario has been slow to adopt the new terminology, and most lawyers still refer to the offence as "driving while disqualified."

Section 320.18 defines operation while prohibited as:

"Everyone commits an offence 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 Parliament or under provincial law in respect of a conviction under this Act or a discharge under section 730."

Simply put, this definition makes it illegal to operate a motor vehicle (or other conveyance) while under a driver's license suspension mandated by a Criminal Code conviction. Section 320.18 (2) clarifies that the offence does not apply to those registered in and in compliance with the terms of a provincial ignition interlock program.

Operation while prohibited is a hybrid offence, which carries a maximum sentence of 10 years imprisonment if charged as an indictable offence or two years when charged as a summary conviction. While there is no federal mandatory minimum punishment, the provincial Act mandates a minimum fine of $5,000 for a first offence, with a maximum of $25,000, while a second offence carries a mandatory minimum $10,000 fine, with a maximum of $50,000. Judges also have the option to substitute the fine with six months or less imprisonment or can combine imprisonment with the fine.

Additionally, drivers charged with operation while prohibited face a 45-day vehicle impoundment, with the owner responsible for stiff impoundment fees. If the accused driver did not own the vehicle, the owner can recover it if they can prove that the driver stole or took it without consent.

Defending Against Operation While Prohibited Charges

In most cases, mounting an effective defence against operation while prohibited charges is challenging. However, a skilled criminal defence lawyer will carefully examine case details and evidence to strategize a defence to directly fight the charges or negotiate a favourable resolution with the Crown. Defence moves that may be available to the accused include:

• Necessity— the driver needed to drive while prohibited due to a medical emergency or other urgent situation.
• Lack of Suspension Notification— the driver was unaware of the driving prohibition due to not receiving proper notification of the suspension.
• Mistaken Identity— Another person may have been impersonating the accused.
• Charter Rights Violations— police obtained evidence through unlawful search and seizure, wrongful detainment, or other rights violations.
• Humanitarian Circumstances— presenting non-emergency justification for needing to drive while prohibited in an effort to sway the Crown's leniency.
• Insufficient Evidence— proving that the Crown lacks sufficient evidence to prove the offence beyond a reasonable doubt.

Due to its connection with DUI, the defence lawyers of TorontoDUI offer operation while prohibited criminal defence services to their Greater Toronto Area clients. With decades of success securing favourable outcomes in DUI-related cases, contact TorontoDUI to strategize your defence.