Because of major changes in the law, this article is substantially different from its first iteration.

When a person is convicted of certain driving offences, the Criminal Code provides for mandatory and discretionary driving prohibitions.  A judge has the authority to prohibit a person from operating a vehicle anywhere in Canada, depending on the maximum penalty for the offence, for up to life.  As a matter of practice, however, suspensions imposed under provincial legislation are more important: Such suspensions are usually longer than corresponding prohibitions that may be imposed under the Criminal Code.   This article concerns suspensions imposed for criminal conduct under s. 41 and s. 42 of the Highway Traffic Act. 

Under the Ontario Highway Traffic Act, the Ministry has different suspension options that penalize drivers for various causes. This topic concerns fixed-length or lifetime suspensions, but other suspensions include those for non-payment of fines, judgments for motor vehicle accidents and family law support.  These latter suspensions are indefinite and therefore run concurrent to any other kind of suspension.  A fine suspension runs from the date that the license holder is deemed to have received a registered notice of suspension for non-payment of fines until all fines due are paid.  Another kind of concurrent-running suspension is the administrative driver’s license suspension imposed for 90 days when a person is charged with “over 80" or refusing to provide a breath sample.

What are the types of suspensions under the Highway Traffic Act?:  These are the basic types of fixed-length suspensions:

·         Suspensions imposed automatically as result of a conviction under the Highway Traffic Act;

·         Suspensions imposed on a discretionary basis by a justice of the peace in proceedings under the Highway Traffic Act;

·         Suspensions imposed automatically as result of a conviction under the Criminal Code;

·         Suspensions imposed on a discretionary basis by a judge in proceedings under the Criminal Code, but authorized by the Highway Traffic Act.

The above suspensions are all for a fixed period or for life.  In all cases they are consecutive in duration regardless of the order in which they occurred.  An instance of this would be when a driver is convicted in May 2000 for an offence in January 1999 and again in June 2000 for an offence committed in December 1998.  If the 1998 offence was dangerous driving and the 1999 offence was impaired driving, the May suspension will be for one year and the June suspension will be for three years.  The driver will not be eligible for a lifting of the suspension until May 2004.  The only exception to this rule applies when two or more offences arise out of the same or related transactions, for instance, impaired driving and refusing a breath sample.  In such a case, only one suspension applies for the length of time that would be applicable to either offence alone.

What is the length of the suspension?:  Suspensions imposed under s. 41 for criminal driving convictions are for a first offence, one year.  For the next offence, three years and indefinitely for a third offence.  An indefinite period may be reduced to 10 years upon completion of a remedial program.  Completion of a remedial program however is required for such every suspension.  To participate in the program involves a fee exceeding $500. A further suspension may be imposed for not completing the remedial program.   Even  after completing the program, a license is not automatically returned and the driver must reapply and pay a fee to have his or her license re-instated  Ontario's Remedial Measures Program for Impaired Drivers.   The order of date of the offence is irrelevant for the purposes of s. 41.  For instance, an individual might be charged for an offence in 2022 and another in 2023.  If they are found guilty of the later offence first and the earlier one after, under the Criminal Code both are considered first offences, and the individual will be subject to a total minimum prohibition of two years.  Under the Highway Traffic Act however, there will be suspensions for one year and three, totally four.  

What are the offences for which a person is subject to a suspension?:a Criminal offences for which a person would receive an automatic suspension are those committed in relation to a motor vehicle, street car, or motorized snow vehicle:

·         Criminal Negligence Causing Death - s. 220;

·         Criminal Negligence Causing Bodily Harm - s. 221;

·         Manslaughter - s. 236;

·         Dangerous Driving – s. 320.13, formerly s. 249;

·         Failing to Stop for Police – s. 320.17, formerly s. 249.1;

·         Leaving the Scene of an Accident – s. 320.16, formerly s. 252;

·         Impaired Driving or Over 80 – s. 320.14, formerly s. 253;

·         Refusing Roadside Test – s. 320.15, formerly s. 255; or

·         Refusing to Provide a Breath or Blood Sample – s. 320.15, formerly s. 254(5)

A conviction in a state of the United States for a driving related offence also qualifies as including by a municipality in another jurisdiction, and is designated in a reciprocal agreement.   To the author’s knowledge, as of March 31 2003, the only states designated are New York and Michigan.  If you want an up-to-date information, contact the Ministry.

Formerly, a conviction that was more than five years old was not counted as a previous conviction.  In 1998 this period was changed to 10 years for the purposes of s. 41.

Automatic suspensions apply to persons who are convicted of offences anywhere in Canada.  It doesn’t matter if a person is not licensed in Ontario as the effect is the same.  For instance, a person licensed elsewhere, would be guilty in Ontario for driving while under suspension if he or she has an applicable criminal conviction.

Suspensions are administrative in nature and are different from the authority a judge has to prohibit a person from driving anywhere in Canada for a period fixed by the judge under the Criminal Code.

Other provinces have similar administrative suspension measures.

Under the same section a judge in Ontario sentencing an individual in a criminal proceeding for a driving offence, may also make the suspension for a period longer than the automatic period.  The maximum length of such a suspension is three years except when the maximum penalty for the offence is life in prison.

Are suspensions under s. 42 of the Highway Traffic Act different?:  The changes in the 1998 amendments did not affect the suspension provisions of s. 42 of the Highway Traffic Act.  That section provides for a further suspension for a conviction under s. 320.18, formerly s. 259 (driving while disqualified) of the Criminal Code or an equivalent US state provision.  For a first conviction, the suspension is one year and for all subsequent provisions, two years.  Only convictions within five years count.  Other criminal convictions do not count for these purposes, just as driving while disqualified convictions do not count for the purposes of s. 41.

Section 320.18 of the Criminal Code provides penalties for driving while disqualified.  On the face of this, it might appear the offence applies where the prohibition is made under the Code.  Under established case law however, a disqualification may result from the operation of provincial law.  For instance, an individual may receive only a one year prohibition for a driving offence, but a Highway Traffic Act automatic suspension for three years.  If the individual is caught driving at any time in the following year, they will be charged with an offence under s. 320.18 even though that person is not under any prohibition under the Criminal Code.   

Caution: This article has highlighted some of the issues that will arise in a drunk driving case.  It must however be read with caution, as this is a complex area.  If you are charged with such an offence, it is especially important to hire or at least consult with a criminal lawyer in the jurisdiction where the charges arise.