September 14, 2009 by Canadian Underwriter
An Ontario Court Justice has struck down Ontario’s new “stunt driving” legislation as unconstitutional.
The legislation, introduced in 2007, outlines several factors defining “stunt driving,” including “driving a motor vehicle at a rate of speed that is 50 km-h or more over the speed limit.”
Penalties in the legislation include fines of between Cdn$2,000 and Cdn$10,000, the automatic impounding of a vehicle, driver’s license suspension and/or a potential prison term of not more than six months.
“There is no issue about the validity of automatic driver license suspension at the side of the road, or the immediate impoundment of a motor vehicle, or a minimal fine of not less than [Cdn]$2,000, as set out in section 172 of the Highway Traffic Act,” Ontario Court Justice Geoffrey Griffin wrote in his reasons for decision. “The only issue is the possibility of imprisonment for up to six months for an absolute liability offence, which I have found [Ontario’s stunt racing law] to be.”
In R. v. Raham, a police officer clocked Jane Raham, a 62-year-old grandmother, at a speed of 131 km-h in a posted 80 km-h zone. Raham was trying to pass a tractor-trailer near Kanata, Ontario (near Ottawa).
Griffin noted there is a difference between a strict liability law — which allows a person to defend themselves by saying they tried to exercise some care and due diligence under the circumstances — and an absolute liability offence, for which no such defence is available.
The Supreme Court of Canada found in 1985 that “absolute liability and imprisonment cannot be combined.”
Since the defence of due diligence is not truly available to a driver exceeding posted speed limits by more than 50 km-h without admitting that he or she is speeding, Ontario’s street racing law is, in effect, an absolute liability offence, Griffin found.
The judge said the imprisonment portion of the penalty renders the stunt driving law unconstitutional under the Charter, because it denies a person the right to the principles of fundamental justice.
The Crown has indicated in press reports that it will be appealing the ruling.