Provincial Driving Offences (13:VI)
A. Common Offences
The most common provincial offence committed in BC is speeding in violation of section 146 of the Motor Vehicle Act. Generally, drivers must not exceed 50km/h in a municipality or on treaty lands, 80km/h on other highways, and must not operate a motor vehicle at a rate of speed higher than that posted on a sign. S 148.2 of the Motor Vehicle Act lists a defence to speeding: if the sign stating the speed limit was obscured or impossible to read, the accused cannot be convicted. This is an affirmative defence and the burden is on the accused to prove that the sign was obscured or impossible to read.
2. Careless Driving
Under s 144(1) of the Motor Vehicle Act, it is an offence to drive:
a) without due care and attention;
b) without reasonable consideration for other persons using the highway; or
c) at a speed that is excessive given the road, traffic, visibility, or weather conditions.
A person who commits an offence under (a) or (b) is liable on conviction to a fine of not less than $100 (s 144(2)) and six points added to their driving record. Subject to the minimum fine, s 4 of the Offence Act states that a fine must be less than $2,000. A person who commits an offence under (c) is liable on conviction to a fine of $173 and three penalty points as per the VTAFR and Motor Vehicle Act Regulations.
To convict a driver of any of these offences, the Crown must only prove inadvertent negligence: a lack of proper care or absence of thought. The standard of care is determined in relation to the circumstances and carelessness must be proved beyond a reasonable doubt: R v Beauchamp,  OJ No 495, (1953)106 CCC 6 (Ont CA).
3. Road Racing
Part 9 of the Motor Vehicle Act includes street racing provisions. This offence has recently become a major public issue and authorities treat it very seriously. Street racing will also be considered an aggravating factor for other offences including those in the Criminal Code.
Per Motor Vehicle Act s 250, “Race” includes circumstances in which, taking into account the condition of the road, traffic, visibility, and weather, the operator of a motor vehicle is operating the motor vehicle without reasonable consideration for other persons using the highway or in a manner that may cause harm to an individual, by doing any of the following:
a) outdistancing or attempting to outdistance one or more other motor vehicles;
b) preventing or attempting to prevent one or more other motor vehicles from passing; or
c) driving at excessive speed in order to arrive at or attempt to arrive at a given destination ahead of one or more other motor vehicles.
According to Motor Vehicle Act s 251(1)(e), a peace officer may cause a motor vehicle to be taken to and impounded at a place directed by the peace officer if the peace officer has reasonable grounds to believe that a person has driven or operated a motor vehicle on a highway in a race or in a stunt and the peace officer intends to charge the person with a motor vehicle related Criminal Code offence or an offence under section 144 (1), 146 or 148 of this Act.
Per ss 253(2) and 3(a), the impoundment period for s 251(1)(e) is seven days, unless the owner of a motor vehicle has also had a motor vehicle impounded within the last two years before the present impoundment, in which case the vehicle will be impounded for thirty days.
4. Use of Electronic devices
Part 3.1 of the Motor Vehicle Act outlines offences related to the use of electronic devices while driving. Section 214.2 defines an “electronic device” as (a) a hand-held cellular phone, (b) a hand-held device capable of receiving email or text messages, or (c) any prescribed class or type of electronic device. Prescribed electronic devices are further defined in s 3 of the Use of Electronic Devices While Driving Regulation, BC Reg 308/2009 [EDWDR] as any of the following:
- Electronic devices that include a hands-free telephone function;
- Global positioning systems;
- Hand-held electronic devices, one of the purposes of which is to process or compute data;
- Hand-held audio players;
- Hand microphones; or
Exceptions for hands-free use of electronic devices are permitted under s 7 of EDWDR. Further exceptions for persons carrying out special powers, duties, or functions are allowed under s 5.
Fines for the use of an electronic device while driving have increased significantly as of June 1st, 2016, and now stand at $368 per offence. As well, 4 penalty points are issued for a violation of this section.
“Use” of an electronic device is defined broadly. Per Motor Vehicle Act s 214.1 use means:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device's functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
Additionally, EDWDR s 2 adds watching the screen of an electronic device as use of an electronic device.
In R v Baindridge 2018, BCPC 101 the accused was found guilty of the offence for simply holding the device in his hand while driving. The court held that any number of functions of the accused’s phone could have been used in the position in which he held his phone. In R v Jahani, 2017 BCSC 745, the accused was found guilty of the offence for plugging his phone into the cord to charge the phone.
In R v Tannhauser, 2018 BCPC 183, the accused was acquitted of the offence because his cell was programmed with a software that immobilized the phone when a vehicle that is in motion. **This case was appealed and BCCA ordered a new trial. The judge in the BCCA trial said that even though the cell phone could not immediately be used due to the software, it was still an electronic device held in a position in which it may be used, which is illegal R. v. Tannhauser, 2020 BCCA 155.
In R v. Partridge, 2019 BCSC, The accused was observed by a police officer looking downwards whilst driving and when stopped, a cell phone was found wedged between the folds of the passenger seat such that the screen was facing the driver. Accused was convicted. However, the accused was acquitted on appeal because the mere presence of a cell phone within sight of a driver is not enough to secure a conviction, leaving aside a situation where, for example, the screen is illuminated and so the driver may then be utilizing the cell phone in some fashion.
B. Penalty Points
Penalty points are imposed in accordance with the schedule set out in Division 28 of the Motor Vehicle Act Regulations. It is important to note that conviction for Criminal Code offences also results in the imposition of penalty points. See Appendix A for examples of offences and their corresponding penalty points.
The number of penalty points will be taken into account under Motor Vehicle Act s 93 when the Superintendent suspends a license. The Superintendent may suspend the license of a class 5 driver who accumulates 15 or more points in any two year period. For a class 7 driver, or novice driver, the Superintendent may suspend the licence for receiving single a 3 point Violation Ticket. More information can be obtained from the Driver Improvement Program Policies and Guidelines.
As of December 2017, a class 5 driver who incurs two high-risk offences (Use of Electronic Device; Excessive Speed; and/or Drive Without Due Care or Attention) in a one year period risks losing their driver’s licence up to 5 months.
1. ICBC Effects of Penalty Points
Drivers who have received 4 or more driver penalty points will be required to pay a premium to ICBC, even if they do not own or insure a motor vehicle. In essence, these premiums are a surcharge on Violation Tickets that put a driver beyond 3 penalty points. For more information, see http://www.icbc.com/driver-licensing/tickets/Pages/Driver-Penalty-Points.aspx.
C. Vicarious Liability for Provincial Motor Vehicle Offences
Pursuant to Motor Vehicle Act ss 83 and 88, the owner of a motor vehicle is liable for any violation of the Motor Vehicle Act or Motor Vehicle Act Regulations unless they prove that:
a) they did not entrust the motor vehicle to the person in possession or exercised reasonable care and diligence when doing so (Motor Vehicle Act s 83(3));
b) although the registered owner, they are not the actual owner (Motor Vehicle Act s 83(5)(b)); or
c) the person committing the offence was not the registered owner’s employee, servant, agent or worker (Motor Vehicle Act s 88(3)).
Under Motor Vehicle Act s 83(4), if an owner is liable for an offence committed by the driver, a fine of not more than $2,000 may be imposed in place of the fine or term of imprisonment specified in the enactment.
Under s 83(7), no owner is liable if the driver was convicted under the Motor Vehicle Act for:
a) driving without a license or without the appropriate class of license (s 24(1));
b) driving while prohibited by order of peace officer or Superintendent (s 95);
c) driving while prohibited by operation of law (s 102);
d) impaired driving (s 224); or
e) refusing to give a blood sample (s 226(1)).
Generally, where the driver of a motor vehicle has been convicted of an offence, financial liability rests on them and further relief cannot be sought against the owner of the vehicle.
D. Limitation Period
An information or Violation Ticket in relation to a Motor Vehicle Act offence must be laid or issued within 12 months from the date the alleged offence took place (Motor Vehicle Act s 78).
The Violation Ticket Administration and Fines Regulation prescribes fines for Motor Vehicle Act offences. Appendix A of this chapter provides examples of fines.
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by the Law Students' Legal Advice Program on August 21, 2020.|
|© Copyright 2020, The Greater Vancouver Law Students' Legal Advice Society.|