Jail for Driving Without Insurance?

A question I often get asked is if you can go to jail for driving without insurance. I get asked this by first-time offenders and I get asked this by people with multiple prior convictions.

I can say that when I opened my firm, while still in law school (taking on primarily traffic-court matters) I was surprised to learn that jail is not an option for “drive no insurance.” This is in stark contrast to driving with a suspended licence, which has a maximum jail sentence of up to six months and often sees courts in this province doling out “short sharp” periods of custody for third offences and even sometimes for a second offence.

But for driving without insurance there is no option for jail. This, however, doesn’t mean that you get a slap on the wrist. Very high fines are imposed, even for a first-time offender, and there are other consequences — such as the potential for a licence suspension.

The governing law in Ontario is the “Compulsory Automobile Insurance Act.” (CAIA) The penalty provision of this statute is as follows:

Offence

(3) Every owner or lessee of a motor vehicle who,

(a) contravenes subsection (1) of this section or subsection 13 (11); or

(b) surrenders an insurance card for inspection to a police officer, when requested to do so, purporting to show that the motor vehicle is insured under a contract of automobile insurance when the motor vehicle is not so insured,

is guilty of an offence and is liable on a first conviction to a fine of not less than $5,000 and not more than $25,000 and on a subsequent conviction to a fine of not less than $10,000 and not more than $50,000 and, in addition, his or her driver’s licence may be suspended for a period of not more than one year.  R.S.O. 1990, c. C.25, s. 2 (3); 1996, c. 21, s. 50 (4); 2002, c. 22, s. 33.

Now, a few details to know about the “minimum fine.” As stated above, the minimum fine is $5,000.00.

• In Ontario, there is a “victim fine surcharge.” For fines of over $1,000.00 the surcharge is 25% and so the starting fine is actually $6,250;
• There is a provision of the Provincial Offences Act (section 59 subsection 2) which permits a court to go below the minimum if “exceptional circumstances” warrant. (These are usually related to financial hardship but also can relate to the “interests of justice.”)
• What this means varies dramatically from Court to Court. For example, in Cornwall, I’ve seen fines as low as $500.00 given out on numerous occasions whereas in Ottawa, section 59(2) typically operates to reduce the fine to $2,500.00 or $3,500.00.

It should also be noted that you can be prosecuted for this offence up to three years after the incident.

Defences to the Charge

I have already mentioned that if you are guilty and if you want to plead guilty, you can ask for a reduction from the minimum fine. A skilled lawyer or paralegal can often save you thousands of dollars.

But if you are not guilty you have options. Some defences raised are listed below.

1. You were actually insured. If you can prove you were insured, that is an absolute defence to the charge. This often can be accomplished by showing documentary proof to the prosecutor; however, sometimes the prosecutor could insist on witnesses testifying so it is a good idea to have a lawyer or paralegal speak to the Crown on your behalf;
2. Knowledge. If you didn’t know you had no insurance this can be a defence. The reason that the word “can” is used is because it’s not clear cut. Criminal offences require the prosecutor to show — beyond a reasonable doubt — that someone did something wrong and also that they had a “guilty mind.” What is meant by “guilty mind” varies depending on the type of offence, but it typically involves proving that someone intentionally did the wrong thing, or did so knowingly. But for many provincial offences (like driving with no insurance) the mental element (or “guilty mind”) doesn’t need to be proven by the prosecutor. However, the defendant / accused can prove they didn’t have the guilty mind. Further support for this “reverse onus” provision is that the law is worded so that nobody can drive a car on a public road unless they have valid insurance. That phrasing suggests that legally driving is an exception to the rule and usually the party, in court, who wants to rely on an exception needs to prove it.
3. Not the owner. If you are not the owner of the vehicle which was allegedly driven, you cannot be charged. This surprises many people, but it’s written right into the statute (“owner or lessee”). Beware, though. There are some important rules to consider. The first rule comes from the Act itself. Driving without insurance is s.2(1)(a) of the CAIA. But if you look at 2(1)(b) it says that permitting someone to drive an uninsured vehicle is an offence. So, if you drive your spouse’s car without insurance, you wont be charged — but your spouse probably will be. And what is meant by “permitting” someone to drive? There is conflicting jurisprudence (higher courts make rules about how to interpret laws) as to whether permitting means simply allowing it to happen on a literal level — for example allowing a person to know where they keep the keys and not taking steps to prevent the person from taking the car — versus actually knowingly agreeing to let the person take the car. Granted, if you pulled over driving your spouse’s car and she or he is in the passenger seat, this won’t be a viable defence! Secondly, you should consider that there is jurisprudence that allows a person to be treated as a de facto owner. It is not necessary to be the “registered owner” (R. v. Zwicker) it includes a common law owner. So, if your grandparent gives you a car and them moves away or becomes deceased, don’t think that the fact that it’s still in their name will protect you.

If you have been charged with driving with a suspended licence or without insurance, please give me a call and I would gladly discuss your case further with you.

If you have any questions, please do not hesitate to call David or Matthew at David Anber’s law office for more information.