excoppersHold on tight because this is the charge to worry about. A conviction for drive under suspension carries a minimum fine of $1,000up to $10,000. You can go to jail for up to 6 months and can be placed on probation and there is a mandatory 6 month suspension which the convicting justice can not disregard.

Drive suspended is a strict liability offence. This means there are basically 3 codified defences and the common law defences are available. The codified defences are Officially induced error, due diligence, and reasonable mistake in fact. If you visit our classifications of offences page, you’ll find some information on these defences and how they’re all connected.

One of the biggest mistakes I see is the “I didn’t know” defence. Not knowing isn’t a defence however why you didn’t know could be. If you’re relying on due diligence, then you have to have taken all reasonable steps, reasonable mistake in fact then your belief must be reasonable (and may involve having taken steps anyway), and lastly if you’re relying on officially induced error, it is also a mistake in fact and must be reasonable. They are all connected and contextual. Speak to someone experienced in this charge who can help you parse the facts and navigate the process effectively.

A branch (and usually a big part) of the I did’t know defence is “I didn’t get the notice” defence. Take a quick look at section 52 of the Highway Traffic Act below. There is a positive duty on you to establish one of the circumstances contemplated in the list.

Another mistake is the self represented whose never had a license (or surrendered it) who plans on using the “I don’t have a license to suspend” defence. You may want to have a look at section 54. The penalties for driving without a license at all are not as severe as driving suspended so it would be wrong to think that it would be an easy out.

For those who want to do some research…

The Highway Traffic Act has these relevant sections:

Service of notice of licence suspension

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. 2000, c. 26, Sched. O, s. 4.

Deemed date of service

(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. 2000, c. 26, Sched. O, s. 4.

Regulations

(3) The Lieutenant Governor in Council may make regulations,

(a) prescribing other methods of service that may be used in the case of a suspension described in clause (1) (a) or a suspension described in clause (1) (b) and prescribing the day on which the notice sent or delivered by such other means shall be deemed to have been given;

(b) prescribing means of proving that a notice was given by a method permitted by subsection (1) or by a method permitted by regulation. 2000, c. 26, Sched. O, s. 4.

Driving while driver’s licence suspended

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. R.S.O. 1990, c. H.8, s. 53 (1); 1997, c. 12, s. 7 (1).

Same

(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. 1997, c. 12, s. 7 (2).

Subsequent offence

(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). R.S.O. 1990, c. H.8, s. 53 (2).

Same

(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). 1998, c. 5, s. 25 (1).

Licence suspended

(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. R.S.O. 1990, c. H.8, s. 53 (3); 1998, c. 5, s. 25 (2).

Where person whose permit or licence suspended does not hold permit or licence

54. Where by or under the provisions of an Act of the Legislature or a regulation made thereunder a permit or licence is suspended and the person to whom the suspension applies is not the holder of a permit or licence, as the case may be, the person shall be deemed for all the purposes of this Act or the regulations to be a person whose permit or licence, as the case may be, has been suspended. R.S.O. 1990, c. H.8, s. 54.

Suspension on appeal

55. If a person whose licence has been suspended enters an appeal against his or her conviction and serves notice of the appeal on the Registrar, the suspension is stayed from the time notice is served on the Registrar unless the conviction is sustained on appeal. R.S.O. 1990, c. H.8, s. 55; 1996, c. 33, s. 10.

In Addition

Apart from the sections in the Highway Traffic Act, there are many cases that interpret and guide on how to deal with some of the issues that arise in this charge. This is one of those cases where you should always have someone defend you. Visit the Case Law page in the Resources section for some case law on Drive Suspended.

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