I've just started my LLM at U of T and am considering a paper/article on the limits of prosecutorial discretion. A defining personal example for me is the racing legislation under the Ontario HTA. With that legislation the Ontario Government created a circumstance where 2 identical fact situations could be subject to two different charges under the HTA at the discretion of the crown. Given that there's unlikely to be much high level discussion of matters related to the HTA, I'm interested if any SLAW members are aware of other statutes (provincial or federal) where two identical fact situations could be subject to different charges under the same statute, or perhaps different statutes. More examples will allow me to find more case law from higher level courts, and this will assist my research and give more weight to the paper.

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.