In Canada, driving while prohibited is a criminal offence that occurs when a person operates a motor vehicle (or any “conveyance”) even though a court or statutory order has banned them from driving. Under the Uniform Crime Reporting system this is coded as UCR Code 9320, and it is classified as a hybrid offence, meaning the Crown can choose to proceed either summarily or by indictment. This page explains how driving prohibited Canada is defined under the Criminal Code, the penalties you can face, common legal defences, and how a conviction may affect your record.
The Legal Definition
“Everyone commits an offence who operates a conveyance while prohibited from doing so by an order made under this Act or the former Act within the meaning of subsection 320.19(5).”
(Criminal Code, RSC 1985, c C-46, s. 320.18(1))
In plain English, this means you commit the offence if you drive any type of motorized vehicle or vessel (called a “conveyance” in the Criminal Code) at a time when you are legally prohibited from driving by a valid order made under the current impaired driving provisions or the former impaired driving laws. The prohibition must be in force when you drive, and it must originate from an order under the Criminal Code’s impaired driving regime (for example, a court-ordered driving prohibition following a conviction for impaired driving or a related offence).
Section 320.18(2) of the Criminal Code, available at the official statute link (s. 320.18), also creates a specific exception. If your prohibition allows you to participate in a provincial alcohol ignition interlock program, and you are properly registered and fully complying with all of that program’s rules, then you are not committing this offence by driving in accordance with that interlock authorization. However, if you drive outside the terms of that program (for example, in a non‑interlock vehicle, or after being removed from the program), you can still be charged with driving while prohibited.
Penalties & Sentencing Framework
- Offence type: Hybrid (Crown may proceed by summary conviction or by indictment).
- Mandatory minimum penalty: None specified in s. 320.18 for first offences.
- Maximum penalty (summary conviction): Up to 2 years less a day imprisonment and/or a $5,000 fine.
- Maximum penalty (indictable): Up to 10 years imprisonment.
Because driving while prohibited under s. 320.18 is a hybrid offence, the Crown prosecutor decides whether to proceed by summary conviction (generally reserved for less serious cases) or by indictment (for more serious or repeat matters). This choice significantly affects your potential exposure to jail time and the overall seriousness of your criminal record entry.
The statute itself does not create a mandatory minimum penalty for a first offence. That means, on a first conviction, a sentencing judge has discretion to consider a range of possible outcomes: fines, probation, and imprisonment, depending on factors like your prior record, the reason for the original prohibition, and the circumstances of the new driving. That said, Canadian courts consistently treat driving while prohibited as a serious public safety issue, particularly when the original prohibition followed impaired driving. Even without a statutory minimum, short jail sentences are common when someone knowingly ignores a court‑ordered driving ban.
On the more serious end, if the Crown proceeds by indictment, the maximum penalty is 10 years in prison. This reflects that driving while prohibited is seen as more than a simple traffic infraction—it is an offence against the administration of justice and public safety. For summary conviction proceedings, the maximum sentence is up to 2 years less a day and/or a $5,000 fine. The “2 years less a day” limit also determines where any custodial sentence will be served: generally in a provincial institution rather than a federal penitentiary.
Although s. 320.18 does not itself list mandatory minimums, repeated violations and prior impaired driving or driving‑while‑prohibited convictions will usually lead to progressively harsher sentences. Courts frequently impose escalating jail time for repeat offenders to deter further breaches and to signal that ignoring driving prohibitions will not be treated lightly.
Common Defenses
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Lack of knowledge of the prohibition order
To secure a conviction for driving while prohibited, the Crown must prove beyond a reasonable doubt that you were subject to a valid driving prohibition order and knew (or were wilfully blind to the fact) that you were prohibited at the time you drove. A potential defence arises where the accused genuinely did not know about the prohibition, or reasonably believed it had expired or been lifted. For example, if the court order was never properly communicated, or there was a clerical error that led you to believe you were allowed to drive, your lawyer may argue that the necessary mental element (mens rea) is not present. Courts will look at what notices you received (such as written orders in court, letters from the licensing authority, or explicit warnings from a judge) and whether it was reasonable for you to rely on your understanding. Simple forgetfulness is rarely enough, but genuine lack of knowledge or a reasonable mistake about the order’s status can undermine the Crown’s case.
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Compliance with alcohol ignition interlock program exception
Section 320.18(2) of the Criminal Code provides a specific statutory defence: if a person is registered in an approved provincial alcohol ignition interlock program and is fully complying with its conditions, then they are not guilty of driving while prohibited for operating a conveyance as allowed by that program. This defence is highly technical. To rely on it, the accused must show (usually with documentation) that: (1) their prohibition order authorized or permitted participation in the interlock program; (2) they were in fact enrolled at the relevant time; and (3) they were following all program conditions, such as only driving interlock-equipped vehicles and not tampering with the device. If any of these elements are missing—for instance, if the person drove a non‑interlock vehicle or had been suspended from the program—the exception does not apply, and the Crown may proceed on the driving while prohibited charge.
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Charter rights violations (e.g., s. 8 unreasonable search)
Like any criminal charge in Canada, driving while prohibited prosecutions must comply with the Canadian Charter of Rights and Freedoms. Section 8 of the Charter protects individuals from unreasonable search or seizure. In this context, police might discover that a person is prohibited during a traffic stop, a roadside check, or after reviewing driver database information. If the initial stop or subsequent information‑gathering involved an unreasonable search or seizure—such as an arbitrary or discriminatory stop without lawful authority, or accessing databases in a way that violates privacy protections—the defence may bring a Charter application seeking to exclude that evidence under s. 24(2). If key evidence (like proof of identity, driving status, or the fact of operation) is excluded, the Crown’s case may collapse. Other Charter rights, such as the right to counsel (s. 10(b)) and the right not to be arbitrarily detained (s. 9), can also be relevant depending on how the police investigation unfolded.
Real-World Example
Imagine someone was previously convicted of impaired driving and their licence was suspended and a court order prohibited them from driving for one year. Six months later, they believe—incorrectly—that the prohibition no longer applies because they have “served enough time” and have started taking public transit less often. Without checking with the court or the licensing authority, they decide to drive to work. On the way, police stop them at a roadside check. When the officer runs their information, it shows an active prohibition order under the Criminal Code’s impaired driving provisions. The driver is then arrested and charged with driving while prohibited under s. 320.18.
In this situation, the key legal issues would include whether the prohibition order was valid and in force, and whether the driver knew or ought to have known that they were still prohibited. The fact that they “believed” it no longer applied, without taking any steps to confirm this, may not be sufficient to avoid liability. The court will consider the original sentencing hearing (where the prohibition is often clearly stated), any written orders given to the accused, and notices sent by the licensing authority. Unless there is evidence of miscommunication or reasonable confusion, the person could be convicted. Sentencing would then take into account the original impaired driving conviction, the breach of the court’s prohibition order, and any aggravating or mitigating factors (such as whether there was dangerous driving or an accident).
Record Suspensions (Pardons)
A conviction for driving while prohibited under s. 320.18 results in a criminal record. In Canada, a person can apply to the Parole Board of Canada for a record suspension (formerly called a pardon) after waiting a prescribed period and fully completing all parts of their sentence, including jail, probation, fines, and surcharges. Because driving while prohibited is a hybrid offence, the applicable waiting period depends on how the Crown proceeded and how the offence was recorded:
Where the offence is treated as a summary conviction matter, the typical waiting period before applying for a record suspension is 5 years after completion of the sentence. If the offence is prosecuted or recorded as an indictable offence, the waiting period is generally 10 years after completion of the sentence. These waiting periods reflect the seriousness with which the justice system views driving while prohibited, particularly when linked to impaired driving histories. While a record suspension does not erase the conviction, it can separate the record from public criminal record checks, reducing barriers to employment, volunteering, and travel. However, further offences or breaches can jeopardize eligibility or cause a granted suspension to be revoked.
Related Violations
- Impaired Driving
- Driving Without a License
- Failure to Comply with Recognizance