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Automatic Suspension of Driver's Licences in Ontario
An Impaired Driving Attorney Explains
Whenever a person in Ontario is convicted of a drunk driving offence, the Judge will
impose a driving prohibition under the Criminal Code prohibiting them from driving
anywhere in Canada for a period of time. In my area that's generally one year on a first
offence. In law but not in practice, the Judge has some discretion as to the length of
that prohibition. Driving while prohibited is a serious criminal offence that usually
results in jail time.
Whenever a person is found guilty of a drunk driving offence in Ontario, the laws of
the Province of Ontario work automatically to suspend the person's licence. That
automatic suspension is completely separate from the prohibition referred to in
the paragraph above. The Judge has
absolutely no discretion in this. On a first offence you will automatically lose your
licence for one year. You can't get any special dispensation for work. If you
are found guilty you lose your licence, no choice or discretion.
Here are some excerpts from sections 41 and 42 of Ontario's Highway Traffic Act.
You may need a lawyer's help to explain in
force effective dates and transitional provisions. The transitional provisions
are very complicated as to whether you go back 5 years or 10 years in checking
for a record.
Warning: Apply for re-instatement forthwith upon conviction!!!
SECTION 41
Suspension on conviction for certain offences
41. (1) Subject to subsections 41.1(1), (2) and (3), the driver's licence of a person
who is convicted of an offence,
(a) under section 220, 221 or 236 of the Criminal Code (Canada) committed by means of a
motor vehicle or a street car within the meaning of this Act or a motorized snow vehicle
within the meaning of the Motorized Snow Vehicles Act;
(b) under section 249, 252, 253 or 255 of the Criminal Code (Canada) committed while
driving or having the care, charge or control of a motor vehicle or street car within the
meaning of this Act or a motorized snow vehicle within the meaning of the Motorized Snow
Vehicles Act;
(c) under subsection 254(5) of the Criminal Code (Canada) committed in relation to the
driving or having the care, charge or control of a motor vehicle or street car within the
meaning of this Act or a motorized snow vehicle within the meaning of the Motorized Snow
Vehicles Act;
(d) under a provision that is enacted by a state of the United States of America and
that is designated by the regulations; or
(e) referred to in a predecessor to this subsection,
is thereupon suspended,
(f) upon the first conviction, for one year;
(g) upon the first subsequent conviction, for three years; and
(h) upon the second subsequent conviction or an additional subsequent conviction,
indefinitely.
(3) The periods of suspension provided for in subsection 41(1) of the Act, as it read
immediately before its re-enactment by subsection 1(1) of this Act, continue to apply with
respect to convictions for offences committed before subsection 1(1) of this Act comes
into force.
Determining subsequent conviction
(2) In determining whether a conviction is a subsequent conviction or an additional
subsequent conviction, as the case may be, for the purpose of clauses (1) (g) and (h), the
only question to be considered is the sequence of convictions and no consideration shall
be given to the sequence of commission of offences or whether any offence occurred before
or after any conviction.
Ten-year limitation
(3) Clauses (1)(g) and (h) do not apply when the subsequent conviction is more than 10
years after the previous conviction.
(4) The five-year limitation provided for in subsection 41(3) of the Act, as it read
immediately before its re-enactment by subsection 1(2) of this Act, continues to
apply with respect to convictions for offences committed before subsection 1(2) of this
Act comes into force.
Note: The ss. 1(2) and(4) referred to above came into force
September 30, 1998.
Exception
(3.01) Despite subsection (3), when the subsequent conviction is within 10 years after
the previous conviction, all previous convictions that were not followed by a 10-year
period without a conviction shall be taken into account for the purpose of clauses (1)(g)
and (h).
Transition
(3.02) Despite subsections (3) and (3.01), a conviction that was more than five years
before the date on which this subsection comes into force shall not be taken into account
for the purpose of clauses (1)(g) and (h).
Note: This subsection came into force on September 30, 1998, so 5 years
before is September 30, 1993. Is the previous conviction before or after
September 30, 1993?
Suspension concurrent with s. 48.3 suspension
(3.1) The licence suspension under this section runs concurrently with the remaining
portion, if any, of a suspension under section 48.3.
Order extending suspension
(4) Where the court or judge, as the case may be, making the conviction referred to in
subsection (1) considers it to be desirable for the protection of the public using the
highways, the court or judge may make an order extending the suspension of the
licence,
(a) for any period in addition to the period specified in subsection (1) that the court
or judge considers proper, if the person is liable to imprisonment for life in respect of
the offence; or
(b) for any period in addition to the period specified in subsection (1) that the court
or judge considers proper but not exceeding three years, if the person is not liable to
imprisonment for life in respect of the offence.
Order for discharge
(5) This section applies in the same manner as if a person were convicted of an offence
if the person pleads guilty to or is found guilty of an offence referred to in subsection
(1) and,
(a) an order directing that the accused be discharged is made under section
730 of the
Criminal Code (Canada) or under a provision that is enacted by a state of the United
States of America and that is designated by the regulations; or
(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders
Act (Canada), including a confirmation or variation of the disposition.
Appeal
(6) An appeal may be taken from an order for additional suspension made under
subsection (4) and the provisions of the Criminal Code (Canada) applying to an appeal from
the conviction referred to in subsection (1) apply in respect of an appeal from an order
made under subsection (4).
Stay of order on appeal
(7) Where an appeal is taken under subsection (6), the court being appealed to may
direct that the order being appealed from shall be stayed pending the final disposition of
the appeal or until otherwise ordered by that court.
No cause of action
(8) No person whose licence is or was suspended under subsection (1) or a predecessor
thereof has a cause of action against the Registrar of Motor Vehicles or Her Majesty the
Queen in right of Ontario for any misapplication of, or misadvice about, the suspension
period under subsection (1) or predecessor thereof.
SECTION 42
Suspension for driving while disqualified
42. (1) The driver's licence of a person who is convicted of an offence under
subsection 259 (4) of the Criminal Code (Canada) or under a provision that is enacted by a
state of the United States of America and that is designated by the regulations is
thereupon suspended for a period of,
(a) upon the first conviction, one year; and
(b) upon a subsequent conviction, two years,
in addition to any other period for which the licence is suspended and consecutively
thereto.
Determining subsequent conviction
(2) In determining whether a conviction is a subsequent conviction for the purposes of
subsection (1), the only question to be considered is the sequence of convictions and no
consideration shall be given to the sequence of commission of offences or whether any
offence occurred before or after any conviction.
Five-year limitation
(3) Clause (1) (b) does not apply when the subsequent conviction is more than five
years after the previous conviction.
Order for discharge
(4) This section applies in the same manner as if a person were convicted of an offence
if the person pleads guilty to or is found guilty of an offence referred to in subsection
(1) and,
(a) an order directing that the accused be discharged is made under section
730 of the
Criminal Code (Canada) or under a provision that is enacted by a state of the United
States of America and that is designated by the regulations; or
(b) a disposition is made under section 20 or sections 28 to 32 of the Young Offenders
Act (Canada), including a confirmation or variation of the disposition.
Regulations
(5) The Lieutenant Governor in Council may make regulations designating
provisions enacted by a state of the United States of America for purposes of this section
and section 41.
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