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.