Bringing an Application for a Stay of a Driving Prohibition Pending Appeal

The stay driving prohibition application is an important step that has significant consequences.  If successful, it restores the Applicant’s driving privileges during the appeal period, after they were lost due to the conviction and sentence at trial.

Under section 261 of the Criminal Code, a judge of the court being appealed to may direct that a driving prohibition be stayed pending final disposition of the appeal (or until otherwise ordered by the court).

Section 261 of the Criminal Code does not set out any statutory test for the granting of a license suspension stay, pending appeal.  It simply grants a broad discretion.

 However, as a matter of practice, the test that has developed is analogous to the related powers found in s. 679 and s. 683(5), which deal with bail pending appeal and with stays of fines, probation orders and other sentences pending appeal.  The statutory tests set out in these two provisions are that the “appeal is not frivolous”, that relief from the underlying sentence is “in the interests of justice”, and that maintaining the underlying sentence is “not necessary in the public interest”.

To meet these three tests in drinking and driving cases, the materials filed on a s. 261 Application must satisfy the court that

·         the appeal has some arguable merit,

·         that it will cause hardship to the Applicant if the stay is not granted, and

·         that the Applicant is not a danger to the public.

See R. v. Won, 2012 ONCA 755 (CanLII)

An exemplary Application Record filed for a s. 261 application would contain the following:

(i)            A detailed Notice of Appeal that set out the grounds of the appeal, avoiding the kind of automatic “boiler plate” that is sometimes relied on.  A well-written Notice of Appeal signals that counsel had thought about the appeal and had given his client a considered opinion about its potential merits. 

Counsel should be prepared to elaborate on the grounds in oral argument on the Application hearing date;

(ii)             The trial Judge’s Reasons should be included were possible. This allows the Court to evaluate whether the proposed grounds in the Notice of Appeal are “not frivolous”.  In a case where the trial Judge’s reasons are not available, within a reasonable time, an opinion letter from counsel would suffice.  This is often resorted to on bail applications pending appeal.  What will not suffice is a conclusory hearsay assertion, in the Applicant’s affidavit, stating that he/she has been told that there are “arguable grounds of appeal” or that “the appeal has merit”.  This kind of assertion is sometimes relied on and it simply cannot be evaluated by the Court;

(iii)               The Applicant’s driving record and criminal record, if any, so that the Court will be able to assess whether the Applicant is a danger to the public when driving.  In this regard, a brief summary of the facts at trial should also be included somewhere in the materials with particular emphasis on whether there was any accident, any injuries, the breathalyzer readings, and any evidence about the driving alleged that could impact on public safety;

(iv)          The Applicant’s affidavit should set out when he had a driver’s license and when his license was suspended, in order to evaluate any hardship that will result if a stay is not granted.  Applicants who have had their license suspended for period of time, (for instance, those whose license has been suspended administratively on arrest for three months should explain how they coped.  The Affidavit should also set out the kind of information about the Applicant’s character and antecedents that is normally provided in a bail application, so that the Court can assess whether he/she is likely to abide by the conditions imposed.  In this regard, it is routinely ordered as a condition of any s. 261 stay for Applicants convicted of drinking and driving offences, that the Applicant only drive with a zero blood-alcohol concentration and voluntarily submit to testing, if stopped.  The Applicant’s drinking habits are obviously important in this regard;

(v)             Finally, the Court Reporter’s estimate as to when the transcripts will be available should be included.  This will help determine the earliest available date for scheduling the appeal, and therefore, the duration of any s. 261 order.

See R. v. Won, 2012 ONCA 755 (CanLII)