Challenging the Ontario Racing Law

Since the Ontario government brought in the the so called “racing law” (HTA s. 172) thousands of Ontario drivers have been charged, most for the simple act of driving more than 50 km/h over the speed limit (an action which is referred to as “performing a stunt” under the Statute and Regulations). In fact the police and the Crown have taken the position that anyone driving more than 50 km/h over the limit is guilty of stunt driving under the Highway Traffic Act. But in taking this position they have violated the intent of the Ontario Legislature.

It is a generally accepted tenet of law that words which appear in a statute are to be assumed to have been put there for a reason. When the government passed s. 172 and its attendant regulations they chose not to remove s.128(14)(d) of the Act which states the penalties for speeding more than 50 km/h over the limit. Thus we have a statute which indicates there is an offence of speeding more than 50 km/h over the limit as well as the offence of racing or performing a stunt. This shows that is was apparently not the government’s intention that all 50 km/h speeding offences be treated as stunts. The police and the Crown have exceeded their authority in choosing to ignore the speeding offence and to charge all persons under the racing section.

It is unfortunate that the regulations related to the racing law are not particularly well drafted; well to be fair they are some of the worst drafted regulations I’ve seen. And so there is nothing on the face of the definition of stunt driving to give guidance to cop or Crown attorney as to what the circumstance are that would make a racing charge appropriate rather than a simple speeding charge. But this should not be the problem of the defendant. It should be incumbent upon the crown to seek clarification from the government about the circumstances where a s. 172 charge (racing) is appropriate rather than a s.128 charge (speeding), and until they get that clarification they should charge all defendants with speeding rather than racing.

In the alternative, if we were to attempt to glean the intent of the legislature from the existing legislation, we should look to the definition of a “race” in the regulations. The regulations provide for the possibility of a single vehicle race, where a person drives a vehicle at a rate of speed which is a marked departure from the lawful rate of speed, and goes on to state that ““marked departure from the lawful rate of speed” means a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway. O. Reg. 455/07, s. 2 (2).” Given the seriousness of the charge and the penalties, this definition is more appropriate as it requires the Crown to prove an actual dangerous act rather than a simple breach of the rules.

So in closing I’d suggest that until the definitions of stunt driving are clarified, the Crown should be limited to prosecuting speeders either with simple speeding charges or with single vehicle racing charges. And I’d suggest that anyone defending a stunt driving under the racing section bring this argument forward as part of their defence. Finally I would add that this defence may not beat the charge entirely. An accused could still be found guilty of speeding over 50 km/h as an included offence and that still would be a 6 point penalty, but the fines would be less and they wouldn’t have that s.172 conviction on their record for their insurance company to see.

The content for this post comes from research i did in preparing a defence to a stunt driving charge. The crown offered to reduce the charge to speeding moments before trial so I didn’t have the opportunity to test the above defence in court. My expectation going in was that I would probably have to get to the appeal level in order for this defence to gain traction, and further that if i had been successful at the provincial court trial level, the Crown would almost certainly have appealed as it would really have cut the legs out from under this whole stunt driving racket they’re running currently.

If any reader tries or has tried this defence, successfully or not, I’d be interested in reading your comments on the experience.

Comments

  1. Doesn’t the danger or stunt objective factor in the environment/weather/speed of traffic/conditions/etc? Sounds like this law needs more clarification

  2. It looks a version of your argument was tried unsuccessfully in R. v. Goonoo, 2009 ONCJ 248 (CanLII).

    Mr. Goonoo was charged with both stunt driving under s. 172 and 50kph over under s. 128.

    Although hisagent pled guilty on the s. 128 charge and argued that the s. 172 charge should be dismissed, the Justice of the Peace gave a conviction on the s. 172 charge and dismissed the s. 128 charge under the Kienapple principle.

  3. I don’t think we’re going to get a well-reasoned debate over the legality and definitions of the new stunt driving provisions until someone has the motivation to take a case up to an appellate level. Without trying to put too fine a point on it, judgments from JP’s in cases defended by traffic agents are rarely going to lead to ‘good law’ being made. The patchwork nature of traffic-court decisions is creating a dangerous precedent in this area and I can only hope that we will see a judicial pronouncement by a criminal court judge in a well argued case soon.

  4. The regulation says “rate of speed” and one could not ask for better evidence that it is, indeed, badly drafted. Speed is a rate, i.e., the distance travelled in a unit of time.

  5. I have argued this in front of a JP and lost. She simply found (without any basis, in my opinion) that going 118 in a 60 zone constitutes a marked departure from the lawful rate of speed. She gave no consideration to whether this speed may limit the ability of a prudent driver to adjust to changing circumstances on the highway.

    In this case, the roads were dry and bare; it was daylight; there was no evidence of nearby pedestrians; there was no evidence that there were any residential areas nearby; there was no credible evidence of any nearby vehicles; there was no accident; and the accused was able to pull over without any difficulty.

    Moreover,the question of whether a given rate of speed may limit the ability of a prudent driver to adjust to changing circumstances on the highway is not, I suspect, something that can be answered without expert evidence regarding brake and reaction times etc.

  6. It may be poor form to comment on your own post but i can’t resist entering this debate. I had a look at the decision in Goonoo and I don’t think it makes a good test case for this argument. To begin with the agent didn’t really make the argument I’m proposing. Here his client was charged with both speeding and stunt driving and he made the rather feeble claim that by pleading guilty to speeding he had precluded a conviction on the stunt driving charge based on the Kienapple principle. The second point, is that regardless of the speed issue involved the accused was driving so badly (weaving and swerving through traffic, tailgaiting, etc) that he probably could have been found guilty of the race/stunt charge regardless of the speed. To be successful, the test case for the defence I’m proposing would be limited to circumstances where speed was really the only evidence of the offence (e.g. Driving 133 in an 80 zone on a dry road in light traffic with good visibility)

    It’s noteworthy that the judge in Goonoo quoted from another decision in R. v. Brown [2009] O.J. No. 269 (I wasn’t able to locate the full text of the case) where the JP states “s. 128 falls within Part IX—Rate of Speed portion of the HTA while as noted above s. 172 is within Part X—Rules of the Road. This suggests that the legislators intended speeding of 50 kph or more above the posted speed limit, to be treated differently, depending on the charge laid.” [emphasis added] This to my mind suggests that the judge in that case was accepting that there were in fact two different offences which could be applied to driving 50Km over the limit. And to this I would add that if there are two offences it is not within the Crown’s discretion to ignore one of those offences as a matter of policy (and the signs we now see on the highways which effectively state that all 50 over offences are going to be treated as racing is evidence of just such a policy)

    And finally I have to agree with Mr Prutschi’s comment that we are not going to get this resolved until it gets to the appellate level. A Provincial Court judge is simply not going to stick their neck out on an issue such as this.

  7. A colleague directed me to the full text of the Brown decision. Two further noteworthy quotes from JP Cuthbertson include “In my opinion, the similarities between s. 128 HTA and s. 3.7 of O. Reg. 455/07 extend only to their wording. They are in different Parts of the HTA, they have significantly different penalties and consequences, with s. 3.7 including the possibility of imprisonment and/or probation.” and “It is not the similarities that make s. 128 and s. 3.7 of O. Reg. 455/07 the same rather it is their differences that make them unique and separate offences. In my view, the legislators intended to establish an offence separate from s. 128”.

    So JP Cuthbertson supports the position that there are two applicable offences under the Act. What remains undetermined to date, that we know of, is a ruling which makes clear the specific circumstances under which each section applies

  8. I have a serious problem with the jail issue as well. The Hess decision from (I believe) 1987 was quite clear that regardless of how remote the possibility of a custodial period being imposed, section 7 is offended if there would be no obligation on the prosecution to prove the mental element. I’d have thought the novelty, or the “kid with a new toy” element would have worn off by now, but I had a call from an 18 year-old client yesterday who was left abandoned on the side of the 401 with no car or money, and who had to cross 6 lanes of a 400 series highway to reach Napanee. I would have been charged criminally in my police days if I was so delinquent.

  9. SECTION 11(d)
    “11. ANY person charged with an offence has the right (d) to be PRESUMED INNOCENT until proven guilty according to LAW in a FAIR and public hearing by an independant and impartial tribunal;…”
    **************************************************************

    The Constitution as I understood it, IS/WAS the Law. And ever since Roadside trials were “granted / added” to police powers, one has to wonder where this dangerous violation of our rights (in full decay) is headed? I wholeheartedly agree with Mr. Wilsons’ view which simply CAN NOT BE ignored on the face of normal logic and reasoning. S.172 needs to be abandoned not just for the obvious reasons, but for the very fact of the ambiguous nature of CONFLICTING HTA definitions (128 vs 172)! Relying on the police and or Crown to interpret and administer s.172 as they see fit essentially removed the role of the JP and everyone else open to Charter violation et al!

    http://tinyurl.com/stunt-money

  10. Ontario’s Unjust Speeding Laws:
    An ever harsher approach is proving to be doing MORE HARM than good…

    Ontario’s stunt / “racing” laws are the strictest of any
    rich democracy. Convicted stunters and simple speeders are
    now exposed to jail provisions within the sentencing
    phase. When convicted, the MTO driving record remains put
    on registries ready for viewing by any insurance agent
    looking to impose the secondary punishment – High
    insurance premiums. Rates that almost guarantees
    facility type insurance for years. Effectively making
    driving un-affordable.

    Which makes it all the more important to ask whether
    Ontario’s approach to speeding is the right one. In fact
    its s. 172 “stunt driving” laws have grown self -defeatingly harsh. They have been driven by a ratchet
    effect thanks to political appeasement. Individual
    politicians have great latitude to propose new laws.
    Stricter curbs on speeding err racing win votes. And to
    sound severe, such curbs must be stronger than the laws in
    place, which in turn were proposed by politicians who
    wished to appear tough themselves. Few politicians dare to
    vote against such laws, because if they do, the potential
    for attack ads practically write themselves.

    Some prosecutors are now stretching the definition of
    “Stunt driving” to include anyone that simply meets any
    facet of the act itself, including speeding over 50.
    How dangerous are these speeders anyways? MTO’s Stats
    don’t reflect the dangers, and no one has yet to prove
    statistically the effects of s. 172 on road safety. A
    review of some of the available stats in Ontario found
    that more than two thirds of those charged with s. 172
    posed little risk. Most were merely speeding and not
    performing any other of requirements of stunting for the
    purpose of a race etc.

    For example, Mr. Wong was found guilty of “Stunt
    Driving” because he was rushing on his way to a job
    interview. Another man was found guilty of s. 172 for
    speeding home to bring medication to his mother who was in
    severe pain. The young man had to beg for a ride from the
    tow truck driver to take him home some 4 hours and
    hundreds of dollars later. These are real people with real
    life situations, does this mean they should be exposed to
    such severity of punishment and possible jail terms??

    Punishment fit the “crime” ?

    There are three main arguments that can or should be made
    to remove s. 172 from the act. First and foremost, it is
    unfair to impose harsh penalties for small offences like
    speeding. Lets face it, this is the only thing that is in
    question for most offenders. The strict vs. absolute
    liability question gets so convoluted that its impossible
    to make sense of it, or even what kind defense strategy
    should be utilized which is why up to now most have
    failed. Second, Ontario’s racing laws often punish not
    only the offender, but also amputates his/her rights
    as mentioned earlier. Third, harsh HTA laws often places
    pressure on police or crown that having so many petty
    speeding offenders to sort through and makes it hard if
    not impossible to distinguish the truly dangerous ones
    from simple speeding. The net result is treating everyone
    charged under this act the same. Instead of lumping all
    alleged racing offenders together on the same list, the
    province should re-draft the poorly written legislation to
    include more distinctions and remove the harsh jail
    provision all together!

    It may take some time to undo this act. However practical
    and just the case for reform, we must overcome political
    cowardice and agendas so that at the end of the day
    sensible speeding laws are enacted rather than vengeful
    ones.

  11. very interesting read. I am going to court tomorrow (defending myself)to face a charge of speeding but with a s.172 factor. Coles notes version: paced(no radar) on highway at 160km/h in a 90km/h zone. charged only with speeding s.128 (1 ticket) but had my bike and license seized roadside. from what I understand I should have received 2 tickets one for speeding s.128 and one for stunting s.172.

    In all my searching I cannot get a definitive answer if I should have received the 2 tickets? It appears that I was charged with speeding but convicted of stunting without ever being charged?