Stunt Driving - Strict Liability

R. v. Raham, 2010 ONCA 206 holds that stunt driving by excessive speeding is an offence of strict liability.  See below:

 

[26]         Counsel agree that if the offence as charged is one of absolute liability, it is unconstitutional as it is potentially punishable by a term of imprisonment.  They also agree that if the offence is one of strict liability, it is constitutional:  see Re B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486.

[27]         In addressing the constitutional question, one must focus on the specific offence alleged.  The various definitions set out in the Regulation create many different ways in which the offence under s. 172 can be committed.  The different language used in the various definitions of "race" and "contest" and "stunt" could mean that some of the ways in which the offence created by s. 172 may be committed are properly characterized as absolute liability offences while others are properly characterized as strict liability offences.  The respondent is alleged to have violated s. 172 by driving at 50 km per hour or more over the speed limit.  By virtue of the definition in s. 3(7) of the Regulation, driving at that rate of speed constitutes driving while performing a stunt.  The information charged that the respondent unlawfully:

[D]id drive a motor vehicle on a highway while performing a stunt, to wit:  driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit….

[28]         The conduct component (actus reus) of the offence under s. 172 as charged against the respondent under s. 3(7) of the Regulation consists of driving a motor vehicle on a highway at 50 km per hour or more over the speed limit.  There is no additional conduct requirement.  This same conduct also constitutes the offence of speeding contrary to s. 128 of the Highway Traffic Act.  The offence committed by the respondent is, in essence, a speeding offence, no matter what the Legislature may choose to call it. 

[29]         This court and other provincial appellate courts have held that the offence of speeding simpliciter, as prohibited for example by s. 128 of the Highway Traffic Act, is an absolute liability offence:  see R. v. Hickey (1976), 12 O.R. (2d) 578 (Div. Ct.), rev'd (1976), 13 O.R. (2d) 228 (C.A.); London (City) v. Polewsky (2005), 202 C.C.C. (3d) 257 (Ont. C.A.), leave to appeal to S.C.C. refused, [2006] 1 S.C.R. xiii; R. v. Harper (1986), 53 C.R. (3d) 185 (B.C.C.A.); R. v. Lemieux (1978), 41 C.C.C. (2d) 33 (Q.C.A.); R. v. Naugler (1981), 49 N.S.R. (2d) 677 (C.A.).  Not surprisingly, the Crown does not ask the court to reconsider those authorities. 

[30]         The Crown submits, however, that there is nothing inherent in the act of speeding that dictates that all speed-based offences must be characterized as offences of absolute liability.  The Crown submits that, as was recognized in the dissenting judgment of Estey C.J.H.C. in the Divisional Court in R. v. Hickey, at pp. 582-84, the act of speeding can involve a wide variety of circumstances, some significantly more dangerous to the public than others.  The Crown contends that the Legislature may choose to address various forms of "aggravated" speeding by creating discrete offences which can coexist with the generic offence of speeding.  The Crown further contends that where the Legislature chooses to create specific offences targeting some form of "aggravated" speeding, the proper characterization of that offence as absolute, strict or perhaps even criminal in the true sense, must be determined using the analysis first set down in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.   

[31]         I accept the thrust of the Crown's submissions.  The nature of the prohibited conduct, in this case speeding, while certainly germane to the determination of the proper characterization of the offence created, cannot be determinative.  To take an extreme example, if the Legislature were to create an offence of "wilfully and intentionally driving at over 50 km per hour above the speed limit", I do not think that it could be argued that despite the mens rea language used by the Legislature, the offence would be one of absolute liability because it was a speeding based offence.  The proper categorization of speed-based offences as absolute, strict, or full mens rea offences will depend on the outcome of the Sault Ste. Marie analysis. 

[32]         In Sault Ste. Marie, at pp. 1325-26, Dickson J. recognized three categories of offences, one requiring mens rea, consisting of a positive state of mind, a second requiring proof of the doing of a prohibited act and leaving it open to the accused to avoid liability by showing he took all reasonable care to avoid committing the prohibited act (strict liability), and a third, offences of absolute liability where a conviction follows proof of the commission of the prohibited act.  Dickson J. went on at p. 1326 to declare:

Public welfare offences would prima facie be in the second category [strict liability].  They are not subject to the presumption of full mens rea.  An offence of this type would fall in the first category only if such words as "wilfully," "with intent," "knowingly," or "intentionally" are contained in the statutory provision creating the offence.  On the other hand, the principle that punishment should in general not be inflicted on those without fault applies.  Offences of absolute liability would be those in respect of which the Legislature has made it clear that guilt would follow proof merely of the proscribed act.  The overall regulatory pattern adopted by the Legislature, the subject matter of the legislation, the importance of the penalty, and the precision of the language used will be primary considerations in determining whether the offence falls into the third category [absolute liability].  [Emphasis added.]

[33]         The Highway Traffic Act is public welfare legislation designed to protect those who use the roads of the province.  The Act, and in particular Part X, "Rules of the Road", creates a wide variety of offences, including the offence in s. 172.  Those offences, taken together, are designed to regulate and control conduct on the roads.  The offences are properly regarded as public welfare offences:  see R. v. Kanda (2008), 88 O.R. (3d) 732 (C.A.); R. v. Kurtzman (1991), 4 O.R. (3d) 417 (C.A.).  On the authority of Sault Ste. Marie, these offences, including s. 172, are prima facie strict liability offences.

[34]         The analytical template described in Sault Ste. Marie sets out four "primary considerations" to be used when determining the proper categorization of an offence:

·        the overall regulatory pattern of which the offence is a part;

·        the subject matter of the legislation;

·        the importance of the penalty; and

·        the precision of the language used.

[35]         The appeal judge performed the Sault Ste. Marie analysis.  I agree with most of his analysis.  The appeal judge concluded that the overall regulatory pattern of the Highway Traffic Act did not assist in classifying the offence as either strict or absolute liability.  I agree: see Kanda, at paras. 20-26.  The appeal judge next concluded that the subject matter of the offence – speeding – suggested a classification as an absolute liability offence.  I agree. 

[36]         The appeal judge next turned to the significance of the penalty provision that provided for potential incarceration.  He held that the risk of incarceration supported a classification of the offence as one of strict liability. 

[37]         I agree that within the Sault Ste. Marie analysis, the availability of incarceration suggests strict liability.  However, in the post-Charter era, the potential for incarceration is much more than simply one of the factors to be considered in categorizing an offence.  An absolute liability offence that provides for incarceration as a potential penalty is unconstitutional and of no force and effect, subject to an argument based on s. 1 of the Charter.  Courts, when interpreting legislation, will presume that the Legislature acted within the limits of its constitutional powers and not in violation of the Charter:  R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 29; R. v. Rube, [1992] 3 S.C.R. 159, at p. 160; R. v. Nickel City Transport (Sudbury) Ltd. (1993), 14 O.R. (3d) 115 (C.A.), at p. 138, Arbour J.A.  This presumption does not entitle a court to rewrite legislation to avoid a finding of unconstitutionality.  It does dictate, however, that if legislation can be reasonably interpreted in a manner that preserves its constitutionality, that interpretation must be preferred over one which would render the legislation unconstitutional.  Because of the presumption of constitutionality, it will take very clear language to create an absolute liability offence  that is potentially punishable by incarceration. 

[38]         In this case, the presumption in favour of a constitutional interpretation means that if the offence charged against the respondent can reasonably be interpreted as a strict liability offence, it must be so interpreted even if it could also reasonably be interpreted as an absolute liability offence.    

[39]         The appeal judge also addressed the fourth and final Sault Ste. Marie factor – the precision of the language used.  He observed that some parts of the Regulation used words suggesting an absolute liability classification and others used language inconsistent with such a classification.  He ultimately determined that the language used throughout the Regulation did not point clearly in the direction of either absolute or strict liability.  He described this factor as "neutral" in the Sault Ste. Marie analysis.  I agree that the language does not clearly point to a categorization of the offence as either strict or absolute liability.

[40]         I think it is fair to say that had the appeal judge based his conclusion exclusively on the factors identified in Sault Ste. Marie, he would have decided that s. 3(7) of the Regulation created a strict liability offence.  However, the appeal judge went on to consider whether, as a practical matter, a due diligence defence could be available to the charge.  In examining the practical availability of a due diligence defence as a component of the classification exercise, the appeal judge relied on R. v. Pontes, [1995] 3 S.C.R. 44, at paras. 27-28, where Cory J. observed:

There are, I believe, two methods of determining whether an offence is one of absolute liability.  First, as suggested in Sault Ste. Marie, supra, regard may be had to the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precision of the language used.

Second, the availability of a due diligence defence must be considered.  An absolute offence denies an accused the opportunity to put forward a defence of due diligence.  Conversely, in order for an offence to be one of strict liability, the defence of due diligence must be available. [Emphasis in original.] 

[41]         Cory J. reiterated the point at para. 32:

By definition, a strict liability offence requires that the defence of due diligence be available.  Put another way, if the offence does not permit a due diligence defence, then it cannot be a strict liability offence. 

[42]         In considering whether a due diligence offence could realistically be available to a charge of stunt driving by speeding at 50 km per hour or more over the speed limit, the appeal judge proceeded on the basis that the defence could not be available to a person who knowingly or negligently drove over the speed limit.  The appeal judge put it this way, at para. 40:

It is simply not realistic to say that a person could reasonably advance a defence that they did not know they were speeding when they would have to have been travelling 50 percent above the speed limit.  Accordingly, the person would have to admit speeding, just not at the extreme level of 50 percent over the limit, which would defeat a due diligence defence.  The defence would fail because it is impossible to reconcile an admission of speeding with the idea of taking all reasonable steps to avoid speeding at a rate of speed 50 kilometres per hour over the speed limit.  The notion that a broken or malfunctioning speedometer could give rise to a mistaken set of facts is simply untenable.  When charged under s. 3(7), the person would have to be speeding 50 percent or more over the posted speed limit.  The point is that at a speed 50 percent or more over the posted speed limit, the person would have to have some knowledge that they were speeding.  [Emphasis added.]

[43]         Mr. Gattrell, for the Crown, submits that the appeal judge erred in law in relying on the approach articulated in Pontes as a second method, distinct from the Sault Ste. Marie analysis, for distinguishing between absolute and strict liability offences.  He relies on the subsequent decision in Lévis (City) v. Tétreault; Lévis (City) v. 2629‑4470 Québec Inc., [2006] 1 S.C.R. 420, at para. 19.  I accept Mr. Gattrell's submission.  In Lévis, the court made it clear that the analysis set down in Sault Ste. Marie was the approach to be used in categorizing an offence as one of strict or absolute liability.  LeBel J., for the court, described the analysis in Pontes as an unhelpful refinement on the Sault Ste. Marie analysis. 

[44]         I, of course, accept what was said about Pontes in Lévis.  In my view, however, that does not preclude a consideration of whether the language used to create the offence can reasonably admit of a due diligence defence.  I think that this consideration is simply one way of examining "the precision of the language used", one of the four factors identified in Sault Ste. Marie.  Language that expressly, or by clear implication, excludes the operation of the due diligence defence will necessarily compel the conclusion that the offence is one of absolute liability:  see Kanda, at para. 40. 

[45]         Consequently, while I agree with Crown counsel that the appeal judge should not have treated the potential availability of a due diligence defence as a freestanding method of categorizing the offence in question, I think the appeal judge was right to examine the potential availability of a due diligence defence as part of a consideration of the language used to create the offence.  Viewed in this way, that examination is part and parcel of the Sault Ste. Marie analysis. 

[46]         I do, however, disagree with the appeal judge's finding that stunt driving as defined in s. 3(7) of the Regulation could not possibly admit of a due diligence defence.  The appeal judge reached this conclusion because he believed that an accused could avail him- or herself of a due diligence defence only if the accused believed he or she was not travelling over the speed limit at all.  With respect to the careful reasons of the appeal judge, I agree with the Crown (both at trial and in this court) that the due diligence defence is not limited to persons who believed they were not speeding.

[47]         A due diligence defence to a strict liability charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence with which he or she is charged.  Where the accused contends that he or she operated under a reasonable misapprehension of the relevant facts, the due diligence defence takes the form of a reasonable mistake of fact claim.  As explained in Sault Ste. Marie, at p. 1326:

[T]he doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonable care.  This involves consideration of what a reasonable man would have done in the circumstances. 

[48]         The due diligence defence relates to the doing of the prohibited act with which the defendant is charged and not to the defendant's conduct in a larger sense.  The defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense:  see John Swaigen, Regulatory Offences in Canada: Liability & Defences (Toronto: Carswell, 1992), at pp. 98-100.  The point is well made in Kurtzman, at para. 37: "The due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably" (emphasis in original).  Just as a due diligence defence is not made out by acting generally in a reasonable way, it is not necessarily lost by virtue of actions surrounding the prohibited act, legal or illegal, unless those actions establish that the defendant, in committing the prohibited act, failed to take all reasonable care. 

[49]         I do not think that it can be said that driving over the speed limit, regardless of how much over the speed limit, will necessarily preclude a finding that an individual took all reasonable steps to avoid driving at 50 km per hour or more over the reasonable limit.  For example, a driver, acting reasonably, may be proceeding somewhat over the speed limit in the passing lane of a multi-lane highway.  That driver may find that he has no reasonable choice but to accelerate in order to avoid being hit by a vehicle that is approaching from behind.  If that driver were to go more than 50 km per hour over the speed limit for the two or three seconds needed to get around traffic so that he could pull out of the passing lane and out of the way of the oncoming vehicle, I think a trier of fact could conclude that the driver was exercising all reasonable care to avoid driving at 50 km per hour or more over the speed limit.  Similarly, a driver who testified that he or she relied on a speedometer, which indicated a rate of speed well below 50 km per hour over the speed limit, might succeed on a due diligence defence if there was evidence that the speedometer, unknown to the driver, was malfunctioning. 

[50]         In outlining the above scenarios, I do not suggest that the due diligence defence is limited to those or similar scenarios.  I also do not imply that the due diligence defence will be readily available to this charge.  As MacPherson J.A. observed in Kanda, at para. 31, the use of strict liability is "a serious commitment to the enforcement of the law".  I would add that even where a due diligence defence is available to a charge of stunt driving contrary to s. 3(7) of the Regulation, a conviction for speeding will often be imposed.  Section 55 of the Provincial Offences Act, R.S.O. 1990, c. P33, would permit, in most situations, a conviction on the lesser but included offence of speeding contrary to s. 128 of the Highway Traffic Act:  see R. v. Benson, 2009 ONCJ 566, at paras. 29-34.

[51]          In summary, I would interpret the offence of stunt driving by speeding as defined in s. 3(7) of the Regulation as creating a strict liability offence.  It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128.  I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence.  The stunt driving provision provides for the potential of incarceration, the speeding provision does not.  This distinction is constitutionally significant.  The Legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault.  Strict liability sets the lowest standard of fault available.  The Legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 km per hour or more over the speed limit by including the risk of incarceration.  In doing so, the Legislature must be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence.  Neither the language of s. 172 nor that of s. 3(7) of the Regulation has that effect. 

[52]         I close these reasons with an observation.  This appeal has necessarily focussed on the availability of a due diligence defence and the possibility of incarceration.  Neither is likely to play any role in the vast majority of prosecutions under s. 172 of the Highway Traffic Act.  The real difference between being charged with speeding and being charged with stunt driving by going 50 km per hour or more over the speed limit lies in the other sanctions that flow from being charged with or convicted of the latter.  These include a $2,000 minimum fine, an immediate administrative licence suspension and an immediate seizure of the driver's vehicle.  No one has argued on this appeal that the Legislature could not simply have imposed those added sanctions by amending the penalty provisions referable to speeding under s. 128 of the Highway Traffic Act.