The controversial cash grab…er, law…known as s. 172(1) of the Highway Traffic Act along with Regulation 455/07 have been deemed unconstiutional by a Judge in Napanee in the case of R v. Rahman (unfortunately, the case is not currently reported and therefore I cannot provide a full text of the decision but thank you to James Morton for summarizing the case on his blog).
The law essentially creates serious penal consequences for excessive speeding (anything over 50kph above the posted limit) and had been challenged constitutionally before in several failed attempts. This time around, Justice Griffin was convinced that the statute created an absolute liability offence, a serious no-no when penal consequences attach to a conviction. The ruling confirms that there is no mens rea (intent) bundled within the offence of 'super speeding' thus such an offence, by its very nature, cannot be punished by criminal sanctions such as jail (which IS indeed a possible sentence for stunt driving). One could regulate super speeding in the same way as run-of-the-mill speeding…by way of a fine. But if you are going to subject accused individuals to the risk of imprisonment, you'd better be able to show that they had some intention to commit a "stunt" before you toss them in jail for so-called "stunt driving".
Admittedly, this reasoning is built on somewhat shaky ground with the possibility that an appeal court will be convinced that the defence to the charge is one of due diligence. There are several examples of offences that have the appearance of creating absolute liability but have been found to be constitutional as an accused can claim that he or she took reasonable steps to avoid the commission of the offence. In the case of stunt-driving by excessive speed, one need only ensure that your speed never exeeds 49kph over the posted limit. Justice Griffin did address the due diligence defence and found that it did not exist in the specific facts of stunt-driving-by-speeding. This analysis is based on the language of the Regulation which discusses the intent necessary for 'stunting' but does not address excessive speed.
This decision may be on the fast-track to a crown appeal so stay tuned.
This is an interesting decision. And we can find further extended discussion of the racing law connected with a former post of mine at http://www.slaw.ca/2009/07/21/challenging-the-ontario-racing-law/
One particularly interesting aspect of the decision is that, when the law first came out, my understanding is that lawyers for accused spent time arguing that this was a strict liability offense, so as to extend the defense of due diligence to their clients. So having a judge find that its an absolute liability offense and unconstitutional as a result is refreshing. Kudos to a creative defense counsel.
And while the Crown must appeal this decision, it sets the stage for the statute to be considered by a higher court where it may be subject to a more sophisticated level of judicial interpretation. Though the risk of course is that the appeal court will merely consider the strict vs absolute question and not evaluate the statute as a whole.
A fundamental problem we face (and several other interesting points of view are articulated in comments on my original post) is that several courts have taken the position that not every act of speeding 50 km/h over the limit is in fact racing; but in all cases I'm aware of, the court has held that on the facts of that particular case, racing was the appropriate charge, but they did not articulate what the criteria should be for deciding between racing and speeding.
We can see by government action (posting large signs on the side of the highway stating that every act of speeding 50 over the limit is racing) that the government has chosen to simply ignore the position of the courts; and while this is a comparatively minor offense, the idea that the government can simply ignore the courts in any circumstances is a far more major concern.
The government could have easily acknowledged the position of the courts by acting in two ways. They could choose to repeal the section of the act (s.128(14)(d)) which articulates the offense of speeding 50km/h over the limit, and so eliminate the ambiguity. Or they could have chosen to amend the regulations related to the speeding offense to clearly articulate the government's position on how one should determine when the racing and when the speeding provisions apply. But to simply ignore the position of the courts and to simply ignore the provisions of s.128(14)(d) is appalling and just a bit frightening.
Whatever legislator(s) drafted the stunt drivng law did not do a thorough job. There already is a law that exists within the Provincial Offences statute that addresses not only speeding, but speeding over 50k per hour. So to have two laws in the same statute addressing the same offence is clearly redundant. And to make matters worse, one of the laws carries a stiffer penalty than the other, i.e. jail time.
The grandmother who was charged was trying to pass and get clear of a transport truck – certainly she was speeding but she wasn't racing the truck, nor was she stunt driving.
The Attorney General's office announced their intention to appeal Justice Griffin's ruling – I will be very interested to see their grounds for appeal.
Why is this case getting the attention of the AG?
A case in the spring already determined that speeding is speeding and the provision of speeding over 50 kph under s. 172 is of no force or effect.
Therefore, this is the second case, not the first, to finally come to the proper legal conclusion.
Arthur Wilson – The court cannot simply repeal s. 128 dealing with 50 over to keep 60 over in play under s. 172.
Speeding is an absolute liability offence in Ontario and the penalty cannot contain a term of imprisionment. By repealing 50 over under s. 128 would not make speeding an strict liabilty offence, thus it would remain unconstitutional under s. 172 as a term of imprisonment would continue to apply.
There are many other legal problems with s. 172. Most of the conduct it addresses are mens rea offence, not strict, based upon the poor wording of the law.
Thus, this one law, s. 172, contains absolute, strict and mens rea offences.
I understand the appeal has now been filed it will be interesting. The Crown, the police and the Government continue to try and enforce this law. In some jurisdictions the police and crown are proceeding as nothing happened. In other areas the police are now laying both the sec 172 racing charge(you check the old section it dealt with racing and still does today) and they are laying the 128 speeding as well. They impound the car and suspend the license. The crowns are then proceeding going to trial and if the constitutionality is brought up they drop the stunt & proceed on the speeding. They already have the defendant's license abstract showing the suspension, they already got the satisfaction of impounding the car ( and really is that not what this is all about, the satisfaction for the police, of stopping the racers) then the crown gets a speeding right after the suspension so the defendant gets hit twice as hard by the insurance companies. And finally the driver gets hit with the same 6 demerit points(speeding under 128 and charges under 172 get the same demerits) in Ontario.
The wording on the section 172 states "No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager." there is the word WHILE in that charge. the amendment to the act was to stop street racing. this was the former racing section. Break down the sentence no person shall #1 WHILE also dong #2 or #3. Seems to me that the justice in R. v Lou was correct that you need conjunctive reading to this law. It was also hinted at in the most recent case. Lets hope the higher court does look at the whole legislation.
As for the highway warning signs no only is that reasonable but I think it should be mandatory. As you enter this province from the west or the USA there are now a good number of warning signs. They deal with mandatory helmets, stopping for school buses with lights flashing, seat belts are mandatory, and we have signs that say speeding 20 over = set fine, 30 over = set fine and 40 over = set fine (there is a second identical looking sign that states the demerit points for each of those speeds) but we do not warn tourist and our own citizens that if you speed over 50 kph over you loose your license and car for a week and you pay for the impound, you pay fine four times the amount of a speeding charge for the same speed fine and you could go to jail. when I speak to anyone about this charge their first reaction is nobody needs to go that fast 140 kph is too fast! that is is northern Ontario, in southern Ontario you get to go 150. (both of those speeds are on the Trans Canada Highway)Yet most stunt drivers get caught going into a town when the peed reduces down to 60 kph.
It sure reminds me of the old TV show Dukes of Hazard when the mayor needs a new car he just send Rossco out to the speed trap to get more money in.
THEN AGAIN IS THAT NOT WHAT MONEY GRAB IS ALL ABOUT.
As for the actions of the police the Crown and the AG's office now that the court has a decision perhaps they should take the high road.
The police are not impounding cars, they are stealing them.
S. 172 has ben uncomstitutional from day one.
Once they steal you car they are allowing a thrid party to place a lein on your now stolen property.
You cannot get your stolen property back unless you fork over some cash.
That's fraud.
So the cop could be arrested on the spot by the private citzen for theft, mischief, and fraud.
The cop will resist arrest so you can add that charge as well.
If the impoundment, I mean theft occurs on private property, a mall, for example, (you're speeding on a highway but stop in a mall parking lot) you can add a trespassing charge onto the long list of cop offences.
The cop can be sued for all damages regarding towing, storage etc.
Most of s. 172 are mens rea offences, as the words "in a manner that indicates an intention to" are used.
An intention to = intent.
Intent = mens rea.
Most of s. 172 is unenforceable due to the doctrine of vagueness.
No definition is provided for:
"outdistancing or attempting to outdistance"
"in close proximity to"
"for a period of time"
"as close as possible to another vehicle"
These terms can have different meaning to different cops.
S. 172 is also an arrestable offence. The HTA provides for private citizens to make arrest for s. 172 offences.
Thus those terms I just listed could have 10 million definitions since there are 10 million adults in Ontario capable of making a s. 172 arrest.
The only term provided with a definition is
“marked departure from the lawful rate of speed” which 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."
This definition is sooo vague it too is unenforcable as well.
Many of the other offences are already covered under careless driving.
Other offences are actually permitted under other sections of the HTA.
The MOT does not provide a licence suspension hearing prior to the suspension taking effect.
The HTA states you can appeal the s. 47(1)(b) MOT suspension under s. 50.
However the Licence Appeal Tribunal (LAT) is refusing to hear such appeals because the cop must have reasonable and probable grounds to lay the charge and susend the licence and the LAT does not have the jurisdiction to determine reasonable and probalbe grounds.
The LAT employs Administravie Law to where reasonable and probable grounds does not exist.
If they held appeal they have no choice but to rule in the drivers favour because the MOT has not proven the cop has reasonable and probable grounds to lay the charge and suspend the licence.
The LAT is however violating every drivers charter right by refusing to provide a hearing.
They are obligated to under s. 50 of the HTA.
Secondly, the government now claims s. 172 is a due dilligence offence, thus the driver is allowed a defence.
However, once again, the LAT has no jurisdiction to determine a due diligence defence, so if a hearing was provided they must once again rule in favour of the driver as the MOT has not discharged its burden and standard of proof to suspend the licence.
So far, the police have stolen over 11,000 vehicles. Committed over 33,000 criminal offences.
It's pretty safe to say that are a repeat offender and habitual criminals.
A massive class action needs to be filed again all police departments involved.
The government may've enacted the law, but the enactment was just a policy decision.
You cannot sue for a policy decision, however enforcing that decision is an operation matter, and you can sue for that!
And in this case, you'll win.
This law is so fatally flawed and poorly crafted you'd think Fantino, McGuinty and M. Bryant drafted it.
Wait a second, they did.