The decision is unreported and I do not have an electronic copy -- I have a rather poor photocopy and that was not easy to obtain -- and so I will describe the decision in some detail.
The decision is clear stunt driving by excessive speed contrary to s 172(1) of the Highway Traffic Act and O Reg 455/07 fails.
The reasoning is that the excessive speed section of the definition of stunt (the 50 km/hr over the speed limit) is an absolute liability offence. No mental element is required to find guilt and no due diligence defence will avoid guilt. This conclusion, which differs from many Justice of the Peace decisions, is based largely on the language of O Reg 455/07 which refers to intention in regarding several ways a stunt can occur but not with regard to speed.
Considering a possible due diligence defence the Court held any such defence was implausible and that suggested absolute liability.
In other cases speeding, in the sense of breaking the speed limit, has been found to be an absolute liability offence.
The Court reviewed the traditional tests to distinguish absolute and strict liability and found stunt driving by excessive speed to be absolute liability.
The Court noted that the provision in question, while called stunt driving and punished potentially by jail, might more properly be called driving at extremely excessive speed. In effect the offence was one of super speeding.
As a matter of constitutional law, an absolute liability offence tied to a potential prison sentence breaches s 7 of the Charter. The principles of fundamental justice forbid imprisonment without some mental element -- some wrongful mens rea, even if limited to being able to avoid conviction by showing due diligence.
Here the Court, noting that stunt driving can lead to jail time, found a breach of s 7 of the Charter.
Surprisingly, perhaps, the Crown acknowledged that if there was a breach of s 7 of the Charter such breach could not be saved by s 1 of the Charter.
Hence, the stunt driving law, as to speed, fails.
On to the Court of Appeal!!!
James Morton
1100-5255 Yonge Street
Toronto, Ontario
M2N 6P4
416 225 2777
6 comments:
great work posting this up as currently there is very little information about what is going on. I'm not keen on having our roads turn into racetracks, but having a law that violates due process in order to accomplish something that was adequately handled by previous laws is just simply wrong. Want speed racing legislature? Fine, but leave it to the courts to establish guilt, not peace officers.
This is law was based on fluffed up stats, cash cow for the province and cash cow for Dennis Mahoney- Bruer, who awaits his day in court, unlike victims of this cash grab.
I just paid $2500 dollars and got six points slapped onto my quebec drivers licence for this very offence! I went to court to answer for the charge, they even impounded my suv for a week, I was not racing, I was driving above the speed limit, there is no logical way to race a heavy clunky range rover anyhow, yet I was charged with this nonsence with no explanation given. It did not make any sence to me when it happened and still does not. Is there any remedy in sight for what happened to me or is it dead in the water?
my question is... so what happens now that this law is found unconstitutional? from what i know, the JP only ruled on the speeding portion... the rest racing, stunt driving and the most important element, roadside suspension/impoundment at the discretion of one person is unaddressed?! or is it?
@ machineman:
File an appeal asap! Hire a paralegal and then a Charter application. If speed was the only element then you have a definitive case and will win on the merits of the Napanee ruling alone! The real question is how to go about recouping losses (towing costs, Legal fees, fines, etc etc) Do I smell a class action lawsuit brewing against the province?? Attorney General? et al?
All together now....
Hmmmmmmmmmmmmmmmmmmmmm.....
I was charged with stunt driving almost a year and a half ago while unknowingly going through a dead construction zone on Canada Day with poor signage, no workers or machinery. I was doing 134 thinking I was in a 100 zone when in reality it had been marked down to 80. I have a lawyer (and solid grounds on why I thought I was in a 100 zone) but am curious to know what my best course of action is. Is this a situation where there is a small window of opportunity to file a motion to get this quashed or am I better off to let 'sleeping dogs lie' and wait to see if the situation works out on its own? Moreover, would the prosecutor be more inclined to negotiate in light of this news? Any insight anyone has would be greatly appreciated!
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