Judge rules Ont. stunt driving law unconstitutional

The Ontario Provincial Police will continue to nab excessive speeders and charge them under the province's stunt-driving laws despite a judge's ruling that the legislation is unconstitutional.

Sgt. Dave Woodford told CTV Toronto the legislation is still being enforced because the law has been effective in reducing the number of fatalities on Ontario highways by about 30 per cent in the last two years since its been inacted.

"This piece of legislation is helping us get to be number one (in road safety) not only in Canada but in the world," he said.

Napanee Judge G. J .Griffin ruled Friday that convicting someone who is "morally blameless" of an offence that carries a jail sentence breaches the Charter of Rights.

Toronto-based lawyer James Morton said he was "really surprised" at the decision but that the judge is probably right.

By law, speeding is considered an absolute liability, which means a driver can't claim he didn't know he was speeding as a defence. However, the driver could very well be "morally blameless," meaning the motorist thought he was going at the speed limit even though he was not, Morton said.

"The defence of due diligence is not a defence because of the way the legislation is written," he told ctvtoronto.ca. "You would still be convicted even if you tried not to speed."

The judge was presiding over a case involving a grandmother in her 60s, who was nabbed by police for driving more than 50 kilometres faster than the posted speed limit on Highway 7.

The woman said she sped up in order to pass a truck. However, she said, the truck also sped up which forced her to speed up even more to pass him. The evidence given by the police officer who issued the ticket demonstrated that the driver slowed her vehicle to 110 kilometres an hour after passing the truck.

On Sept. 30, 2007, Ontario enacted provisions of the Safer Roads for a Safer Ontario Act that allowed officers to immediately seize the car of any motorist caught driving more than 50 km/h over the posted speed limit. Aside from having their car towed for a week, motorists automatically have their licence suspended for seven days. Drivers also face a hefty minimum fine of $2,000.

"The judge didn't say licence suspension or a car tow was unconstitutional. What he said is that a conviction for stunt driving by speeding is unconstitutional," Morton said.

Street racers who are nabbed under this legislation would not be affected by the judge's ruling. They would be tried under a different subsection of the law that deals with racing in particular, Morton explained.

The Crown would have a hard time reversing the judge's decision at the Court of Appeals, he said.

Prosecutors had a chance to argue the judge's decision using Section 1 of the Charter which essentially says that a breach of the Charter can be justified if it shown to be reasonable in a free and democratic society. However, in court Friday the Crown conceded it could not argue with the judge.

Morton said there are hundreds of cases in the system where people have been charged with stunt driving. Now the defendants have an excellent chance of getting the charge thrown out in court.

"This (ruling) is very important," he said. "It seems to me that the judge is probably right but my instinct is that it can be reasonably justified. Going over 50 kilometres is a serious offence."

With files from CTV Toronto's Austin Delaney