Stunt Racing Law Deemed Unconstitutional

[Slippery_Pete]

AM640 News has learned a judge from the Ontario Court of Justice has deemed the new stunt racing law to be unconstitutional. The law says drivers driving 50km/h over the speed limit can be charged with stunt driving.

Discuss...

[Reign]

Sounds good, now I can mash the gas!

[B0000rt]

AM640 News has learned a judge from the Ontario Court of Justice has deemed the new stunt racing law to be unconstitutional. The law says drivers driving 50km/h over the speed limit can be charged with stunt driving.

Discuss...
Umm contradictory?

[Slippery_Pete]

Umm contradictory?

well its from AM640...their news flashes are usualy riddled with mistakes...I'm sure they meant can't...I think?

[l69norm]

http://jmortonmusings.blogspot.com/2009/09/stunt-racing-law-found-unconstitutional.html

Tuesday, September 8, 2009
Stunt racing law found unconstitutional
Friday's (September 4) decision from Napanee from Ontario Court of Justice Judge G J Griffin in R v Raham, 2009 ONCJ 403 holds the stunt racing by excessive speed law to be unconstitutional. This decision has been eagerly awaited.

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.

[f00kie]

Finally I don't have to keep watching my speedometer while travelling 148?

[Canuck_2005]

it was only a matter of time before this fell apart

[DLFB]

...sometimes the law is just plain stupid

[masterballer]

So can i finally do 180 on the 407 at night or no?

[Slippery_Pete]

So can i finally do 180 on the 407 at night or no?

Yes..you could always do that. But you'll still get a fine when you get caught.

[masterballer]

Yes..you could always do that. But you'll still get a fine when you get caught.

So the whole 50 over and instant car impound is over with? Happiest day ever? lol

[bembol]

I wonder if the Dodge Viper I saw a few months ago with "149 MAX" plates will get it change. LOL

[roadrunner17]

Can I now sue OPP for suspending my license and keeping my car away for seven days under some Unconstitutional law? :mad:

[rems]

AM640 News has learned a judge from the Ontario Court of Justice has deemed the new stunt racing law to be unconstitutional. The law says drivers driving 50km/h over the speed limit can be charged with stunt driving.

Discuss...

Umm contradictory?

that`s not contradictory. It`s reporting that the law is unconstitutional (and that law states that drivers driving 50km/h over the speed limit can be charged with stunt driving)

[GangStarr]

So can i finally do 180 on the 407 at night or no?

Your insurance company is still going to have some fun with you if your convicted.

The article also suggests that police are still enforcing it.

[koft]

AM640 News has learned a judge from the Ontario Court of Justice has deemed the new stunt racing law to be unconstitutional. The law says drivers driving 50km/h over the speed limit can be charged with stunt driving.

Discuss...

No Stunt driving doesn't mean you won't get 6+ points and a hefty fine + would like to see your insurance rate when it is time for renewal!

[GunnerX]

So can i finally do 180 on the 407 at night or no?

You can do that. But if you get caught, you can be charged with Dangerous Driving and be criminally charged which is not as lenient as the stunt driving law. Instant 1 year suspension of your license and jail time.

[COSMIC5]

All I can say is more than likely a non renewal!

No Stunt driving doesn't mean you won't get 6+ points and a hefty fine + would like to see your insurance rate when it is time for renewal!

[blainehamilton]

All we need is another couple of fatalities from a street race and the vast majority of people will be right behind support for the law again.

150km/h is too fast unless you are on a track or a german engineered roadway designed for that kind of speed...

[m4gician]

What happened here according to 680 is that in napanee, there is constitutionally no real defense to the charge and the justice decided that way. However, this decision may be appealed (most likely) by the supreme court to keep this law in place.

It is still a law, and until it is ammended, you will face the penalties this law presents.

Now without going into constitutional rights, you are guilty because your car regardless was speeding, so a fine is something I support. What I don't like is how there is no way to fight police corruption (u were not going 150 but ur charged anyways), criminal charges/jail time.

Speed + circumstance has to hbe taken into account when deciding criminal consequences. 151 on the 407 at night is different from 120 in a 40 during school hours.

Unfortunately, laws 30yrs behind in terms of fairness.

[new_vr]

All we need is another couple of fatalities from a street race and the vast majority of people will be right behind support for the law again.

I don't think public support would allow it to override the constitution.
I do think the law will live on, it will just be amended so that it fits the constitution.

[GunnerX]

The latest people charged under this law have been police officers. With the latest one being caught for the second time.

[teknoluv]

151 on the 407 at night is different from 120 in a 40 during school hours.
That's because 80 is different from 51, and even 51/40 is different from 51/100.

[fastlayne]

The latest people charged under this law have been police officers. With the latest one being caught for the second time.

Link please. Is this the driver that was reported on the weekend, but there was no mention of his name in any newspaper or news program? This is the article (http://scstandard.com/ArticleDisplay.aspx?e=1733119).

[madmarino]

All we need is another couple of fatalities from a street race and the vast majority of people will be right behind support for the law again.

150km/h is too fast unless you are on a track or a german engineered roadway designed for that kind of speed...


Hmm, makes me wonder why we don't engineer our own Autobahn.

Keep it out of the cities and near danger area's.

I don't even drive the standard 120kmph myself, but always wondered why what works in Germany wouldn't work here.

[jigz2k3]

yeah read abt this.. its so messed up...

[deuce]

All we need is another couple of fatalities from a street race and the vast majority of people will be right behind support for the law again.

150km/h is too fast unless you are on a track or a german engineered roadway designed for that kind of speed...

the 400 series highways are engineered for 140+ safely. the problem with them is that they arent maintained very well.

Hmm, makes me wonder why we don't engineer our own Autobahn.

Keep it out of the cities and near danger area's.

I don't even drive the standard 120kmph myself, but always wondered why what works in Germany wouldn't work here.

simple. a blind circus monkey can get a drivers licence in ontario. a large percentage of drivers here should not be on the roads.

[Nikita]

AM640 News has learned a judge from the Ontario Court of Justice has deemed the new stunt racing law to be unconstitutional. The law says drivers driving 50km/h over the speed limit can be charged with stunt driving.

Discuss...

The OCJ is a fairly low court so that decision isn't binding (only persuasive) on that court or any higher court. This decision just opens the door for further appeals to the Court of Appeal and perhaps the Supreme Court before any finality will attach to it. Further the decision is fairly narrow in it's scope and sounds more like the court is simply seeking some tweaking to bring it in line with the Constitution.

Good start though IMO!

BTW l69 norm, thanks for posting the article, it wasn't in our newspaper today yet and I haven't been able to get my hands on a copy of the decision yet.

All we need is another couple of fatalities from a street race and the vast majority of people will be right behind support for the law again.

150km/h is too fast unless you are on a track or a german engineered roadway designed for that kind of speed...

Again? I don't think the 'vast majority' were ever behind it. Besides you're missing the issue. Nobody is in favour of people going 150kph, or 50 over the speed limit. The issue is the manner in which this law is enforced...and that's what the court found to be constitutional.

I don't think public support would allow it to override the constitution.
I do think the law will live on, it will just be amended so that it fits the constitution.

And that's just fine, that's all anybody really wants. But I still think we're a long way off from that happening. The government will likely want to appeal this even higher and get a final decision from the CA or the SCC as to what will pass constitutional muster rather than making any changes based on a provincial court decision alone.

Buttt, I repeat....good start!:)

[thoughts]

Yes I listened to AM640 all morning. What everyone keeps forgetting, and the way people are talking is sending out the wrong message, is that doing 150 is still speeding. Since I started driving in 1999, Ive always lived by the rule that 140 is am acceptable limit, meaning you can get pulled over if youre in the wrong place wrong time, but anything over that you can be charged with wreckless driving. Cops are usually on the look out for people going over 140 but driving erratically. I drove on the 400 for years commuting doing 140, 150 and 160 never ever got pulled over, never saw an accident. Saw cops drive by me going even faster, 90% of the time theyre only going to pull over the idiots who drive fast and duck and dodge in an out of lanes.

Back to the 150 thing, people should bloody well know if theyre at 145, 148 and so and if you get caught then youre the fool. I dont agree with impounding and suspending, but I agree that anything speeding over 50 in the posted limit should be charged as wreckless/gross speeding not stunt driving. If youre dumb enough to get caught going over 50 I think you should get fined $2500, no contest. And it should be paid in full before the next renual.









Sorry for babbling on but I see in peoples comments on forums and radio that everyone thinks its ok now to drive 150. People need to check their speeds seriously....thats the main issue here, the actual speeding. A lot of idiots now are gonna speed over 50, telling themselves it'll get thrown out now. And they can just go on speeding.

[at1212b]

Its going to appeal so that'll defintiely take longer. Now, if it reaches the higher courts, then there may be a 'postponement' in the application of the law, but bc its a decision from a lower court regarding a specific case, it doesn't affect the actual definition of the whole law or certain aspects/applications as unconstitutional. The impounding of vehicles also doesn't seem affected. Just the conviction aspect regarding a specific set of events. So immediate impoundment of vehicles will at the very least continue to occur for longer.

Once or if it ever becomes a issue regarding a more broad applicable situation, then we might start seeing changes in it to meet 'constutional' requirements. At the very least, it is going to give lawyers and defendents new avenues, ideas and defenses to pursue.

"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.


http://toronto.ctv.ca/servlet/an/local/CTVNews/20090909/stuntracing_ruling_090909/20090909?hub=Toronto

[MaximDude]

I briefly heard that now it works like this:

If you do 150+ while actually street racing all the rules apply.

But

If you do 150+ just speeding if caught you'd get a speeding ticket?


Is that right?

[ShadowVlican]

Hmm, makes me wonder why we don't engineer our own Autobahn.

Keep it out of the cities and near danger area's.

I don't even drive the standard 120kmph myself, but always wondered why what works in Germany wouldn't work here.
same reason why we have stop signs instead of yield signs.... all way stops instead of roundabouts... etc..

[mkerian]

I briefly heard that now it works like this:

If you do 150+ while actually street racing all the rules apply.

But

If you do 150+ just speeding if caught you'd get a speeding ticket?


Is that right?

No, the law still applies. You'd have to go to court and argue that you were speeding 50 over because you were just speeding, not racing. In the example everyone is quoting, it was a grandmother who was charged....I think if you were a young 20ish male than it would be harder to fight, so don't be stupid.

[mkerian]

Hmm, makes me wonder why we don't engineer our own Autobahn.

Keep it out of the cities and near danger area's.

I don't even drive the standard 120kmph myself, but always wondered why what works in Germany wouldn't work here.

Engineer our own Autobahn?? Do you have tens of billions of dollars to upgrade and expand our highways? Also, we're a massive country of 32 million, Germany is much smaller land wise, but almost 3 times our population....

As for the Autobahn myth, the unlimited speed limit that people misquote all the time is only applied in certain areas, and is being gradually retracted in province after province. Also, it's alot tougher and takes alot more time to gain a German driver's license...our systems cannot be compared.

[actng]

i don't think i've read a single post in this thread that in my opinion has understood the apparent implications of last week's ruling.

the only thing that has been CONFIRMED is that a judge in the appellate court has ruled that it is unconstitutional for someone traveling 50km/h+ over the speed limit to be held CRIMINALLY liable, because speeding is an absolute liability... there is no defense for it. You can't say "i didn't know or I didn't intend to or my cruise control was on or my gas pedal was stuck".

You can only send people to jail (criminally liable) for strict liability... where defenses like "i didn't mean to kill him. i had no intention of firing that gun. i did not race. i wasn't trying to do a wheelie on my bike... the clutch slipped."

so again the only thing that we can conclude from last week's ruling is that you can't send people to jail for 50km/h over... which means that's the only part of the law we know for sure will get amended... no possible jail time for speeding!

all the other ridiculousness like roadside suspension/impoundment at the sole discretion of one person (the police) still applies if you're caught 50 over.

i'm hoping for someone with sense that will amend this law properly when they rewrite the speeding / no jail portion.


In the meantime, if you're doing anything listed in regulation 455, referenced in section 172 of HTA, you are still getting towed and suspended for 7 days before you even get to court.

[camber]

Sorry for babbling on but I see in peoples comments on forums and radio that everyone thinks its ok now to drive 150. People need to check their speeds seriously....thats the main issue here, the actual speeding. A lot of idiots now are gonna speed over 50, telling themselves it'll get thrown out now. And they can just go on speeding.

Ummm.. It's not the law was stopping people from driving 50 kn/h over the posted speed limit. There are +10k stunting/50 over ticket over the past two years to attest to that fact.

To be fair, I betting that most of those tickets were in nasty transition zones where the police could fish all day.

[camber]

Engineer our own Autobahn?? Do you have tens of billions of dollars to upgrade and expand our highways? Also, we're a massive country of 32 million, Germany is much smaller land wise, but almost 3 times our population....

As for the Autobahn myth, the unlimited speed limit that people misquote all the time is only applied in certain areas, and is being gradually retracted in province after province. Also, it's alot tougher and takes alot more time to gain a German driver's license...our systems cannot be compared.

Since we're talking about myths....

Have you driven on Autobahn?

Large sections of the Autobahn aren't designed as well as most sections of 400 series highways in Ontario. Also, most 400 series highways in Ontario run through very dense population. Southern Ontario to eastern Ontario has a decent population density and this is where 99.9% of population Ontario lives.

[camber]

From Jim Kenzie Blog

There is none so blind as he who will not see

A Napanee Ontario Court judge, G. J. Griffin, has come to the only conclusion that anyone with even a passing familiarity with the English language, our legal system or basic fairness could come to - that the Julian Fantino street racing/stunt driving law which makes a police officer judge, jury and executioner in a certain class of speeding infractions is unconstitutional.

Of course it is. How did this ever get through our legislature? Does somebody have incriminating photos of our M.P.P.s or something?

But O.P.P. Sgt. Dave Woodford, who seems to have been saddled with the sad task of trying to defend the indefensible, says Fantino's minions are going to keep laying charges.

Sgt. Woodford was quoted on Breakfast Television this morning as saying that they believe it applies only to this individual case.

Um, Dave: I know you have more than a passing familiarity with the English language, and I understand the bit about you having to obey orders. But do you - does anybody within the O.P.P - not have a passing familiarity with the concept of judicial precedent?

This law never stood a chance of passing judicial review.

And I would have thought that the role of our police forces is to defend and uphold our constitutional rights, not to deny them to the citizens they allegedly (and have been sworn to) serve and protect.

Never mind that the entire concept of speed limit enforcement is totally bogus.

It doesn't work.

It has never worked.

It CAN never work.

Why? Because no amount of speed limit enforcement we can begin to afford, especially of speed limits that are artificially low, will ever have a marked effect on the speeds we drive.

The fact that over 7,000 speeding charges were laid this past weekend alone proves that. If it DID work, why are we all still "speeding"?

And even if speeds could be reduced, there is zero evidence it would have any positive effect on our traffic casualty statistics. Because speed per se is considered a factor - by the police themselves, according to the crash reports they are required to fill out - in only a relative handful (something around ten percent) of fatal or injury-causing crashes, vastly disproportional to the number of speeding charges laid (which comprise something around seventy percent of all traffic tickets issued).

Why don't the police lay charges against the driving behaviours that DO cause crashes?

Because they are all too busy playing "King Canute".

"Going with the flow" is the only speed that makes sense, the only speed at which we can all be safest. And "the flow" is way faster than our current limits, at least on our freeways where most of this unconstitutional activity takes place.

Speed limit enforcement as it is currently implemented is a complete and utter waste of scarce police resources, as even a cursory examination of the statistics proves.

And a cursory examination of some of the comments that have been logged on at least one web site dealing with this issue reveals that many in the public don't get it either.

To wit: "Clearly this judge and those of you who disagree with this law have never had a loved one killed by dangerous speeding."

I don't know about Judge Griffin. But I have indeed had a loved one killed in a traffic incident, which by definition involved "speeding", although I guess my five-year old sister could have run into a stationary ("non-speeding") truck hard enough to kill herself.

That bit of family history is in fact one of the main reasons I campaign so hard for traffic law enforcement that IS effective, and not political grandstanding, which is the sum total of this inane - and now officially unconstitutional - law.

Can't anyone but Judge Griffin see that Emperor Fantino has no clothes?

http://thestar.blogs.com/kenzie/2009/09/there-is-none-so-blind-as-he-who-will-not-see.html

[lagos]

the 400 series highways are engineered for 140+ safely. the problem with them is that they arent maintained very well.

simple. a blind circus monkey can get a drivers licence in ontario. a large percentage of drivers here should not be on the roads.

That's right, obtaining a drivers licence in ontario and in North America is so simple compared to some parts of Europe, it's not even funny.

Engineer our own Autobahn?? Do you have tens of billions of dollars to upgrade and expand our highways? Also, we're a massive country of 32 million, Germany is much smaller land wise, but almost 3 times our population....

As for the Autobahn myth, the unlimited speed limit that people misquote all the time is only applied in certain areas, and is being gradually retracted in province after province. Also, it's alot tougher and takes alot more time to gain a German driver's license...our systems cannot be compared.

What Autobahn myth are you talking about? I am curious to know which provinces retract? It sounds like you are trying to create a myth yourself.

FYI, I was just in Germany last week. There is a suggested speed limit on all parts of the autobahn when there is no max limit sign, and that is 130km/h. HOWEVER, it is indeed true that you can travel without speed restrictions on about three quarters of the autobahns in Germany. The only time you have to slow down is when passing through town intersections and construction zones. Keep in mind that when you get into an accident at higher than 130km/h, your liability may increase.

[actng]

stop talking about the autobahn.
it has no relevance to this law being unconstitutional.

whether the autobahn exists in germany has no bearing (for or against) the ability for police officers to impose roadside suspension/impoundment for 7 days solely at his own discretion that one was racing/stunt driving... without physical evidence aside from his own testimony and conjecture... all before the victim has set foot in a court room.

even if the victim is found not guilty in his future day in court, the $692.74 he spent recovering his car from impound and $2500 spent on lawyer is unrecoverable.

[bembol]

I briefly heard that now it works like this:

If you do 150+ while actually street racing all the rules apply.

But

If you do 150+ just speeding if caught you'd get a speeding ticket?

Is that right?

I hope so. I have no problem with it when one actually Street Races.

When this BS law was introduce the number of street races was getting out of hand and I hated/balmed Fast & Furious for it, then the Government twisted it and took advantage of the problem and turned it into a Money Grabbing law.

I think the real problem is that it's just TOO EASY to get a driver's license. The G test is a joke, it's an In & Out test.

[antman59]

Hmm, makes me wonder why we don't engineer our own Autobahn.

Keep it out of the cities and near danger area's.

I don't even drive the standard 120kmph myself, but always wondered why what works in Germany wouldn't work here.

Doesn't work that well remember Drazen Petrovic.

Should raise the limit to 120 to keep pace with the actual flow/comfort speed on the freeways. This is the safest and easiest way to reduce speeding. Increase the limit and watch the success...Of course it would mean less fines to collect so that's why it hasn't been done yet.

[fastlayne]

From Jim Kenzie Blog



http://thestar.blogs.com/kenzie/2009/09/there-is-none-so-blind-as-he-who-will-not-see.html

+1

Jim Kenzie for Premier!

His campaign platform would be "speed is not the problem, speed is the goal" - a common Kenzism.

Fantino, McGuinty and the like will never understand. If they had the vision and 10 years, the drivers of Ontario, could be educated, trained and tested to have far superior road discipline. We could travel at speeds that make sense for our open-spaces highways and the vehicles that we drive.

Add a penny to every litre of fuel sold in Ontario and provide mandatory training for every Ontario driver.

[lagos]

stop talking about the autobahn.
it has no relevance to this law being unconstitutional.

whether the autobahn exists in germany has no bearing (for or against) the ability for police officers to impose roadside suspension/impoundment for 7 days solely at his own discretion that one was racing/stunt driving... without physical evidence aside from his own testimony and conjecture... all before the victim has set foot in a court room.

even if the victim is found not guilty in his future day in court, the $692.74 he spent recovering his car from impound and $2500 spent on lawyer is unrecoverable.

just trying to prevent a myth starting, that's all. :)

Some will say, just don't speed 50 over the limit, and you should be fine. But the reality is there will always be somebody who will go 50 over, and when that happens, this law becomes unfair in so many aspects of the process.

[l69norm]

just trying to prevent a myth starting, that's all. :)
Some will say, just don't speed 50 over the limit, and you should be fine. But the reality is there will always be somebody who will go 50 over, and when that happens, this law becomes unfair in so many aspects of the process.

I think that's exactly what happened to the woman in question that was charged in the Napanee case. She went over 130 km/hr in a 80 zone, but it occurred while she was passing a semi on a 2 lane section of Hwy 7 between Ottawa and Toronto.

How many people hit or exceed 120 - 130 km /hr when passing a vehicle on a 2 lane highway, especially while overtaking a long vehicle like a semi on a road with fairly short passing sections?

[cheap sk8]

Seems from the transcript of the case, the judge actually wanted the alleged stunt driver to win, and it would seem in fact that he even suggested to the lawyer that won that he take on the case, since it was mostly his work that the paralegal that the lady had previously hired was using.

Source:

http://www.over80.net/userfiles/file/appeal%20reasons%20for%20judgment.pdf

On another similar note, was watching a 10b challenge in Brampton court a few days back where the defendant wanted to speak to a specific paralegal upon his arrest and was denied the opportunity (right to counsel). The judge didn't rule in favour of the defendant and gave a few good reasons why, but did make a remark that although now admitted to a certain level of the bar, paralegals technically aren't lawyers (and shouldn't be considered "counsel"). The judge didn't want to actually want to bring up the "should paralegals be considered counsel under the law" issue and even stated that they didn't want this to come up and create case law on this issue.

[Kellster]

Take THAT Fantio and Bryant!!!

[Nikita]

i don't think i've read a single post in this thread that in my opinion has understood the apparent implications of last week's ruling.

the only thing that has been CONFIRMED is that a judge in the appellate court has ruled that it is unconstitutional for someone traveling 50km/h+ over the speed limit to be held CRIMINALLY liable, because speeding is an absolute liability... there is no defense for it. You can't say "i didn't know or I didn't intend to or my cruise control was on or my gas pedal was stuck".

You can only send people to jail (criminally liable) for strict liability... where defenses like "i didn't mean to kill him. i had no intention of firing that gun. i did not race. i wasn't trying to do a wheelie on my bike... the clutch slipped."

so again the only thing that we can conclude from last week's ruling is that you can't send people to jail for 50km/h over... which means that's the only part of the law we know for sure will get amended... no possible jail time for speeding!

all the other ridiculousness like roadside suspension/impoundment at the sole discretion of one person (the police) still applies if you're caught 50 over.

i'm hoping for someone with sense that will amend this law properly when they rewrite the speeding / no jail portion.


In the meantime, if you're doing anything listed in regulation 455, referenced in section 172 of HTA, you are still getting towed and suspended for 7 days before you even get to court.

I agree that people are overextending the application of this ruling to other cases. I commented earlier that this barely even sets a precedent...though for other reasons than the narrowness of the part of s.172 that's affected. As I stated earlier, this is only a OCJ decision, which even if it did strike down the entire law is not binding on future OCJ decisions or possibly even HTA decisions. At most it's persuasive on this one narrow ground that was even ruled on, the speeding/strict liability/criminal record/jail time issue and at this early stage it's persuaviness is weak. In other words, not much has changed, not enough has changed, and what has changed has really only changed wrt to this one case. Remember decisions are made not only on law but also on the facts of the case being used to challenge the decision. Any JP or Judge can simply toss it on the basis that the facts are different, and there are rarely two cases with the exact same facts.

Bottom line, people shouldn't get too excited over this. Personally it doesn't even touch the major issues I have with s.172, being the lack of due process, so we have a long way to go before breakin' out the beers, so to speak.

[ES_Revenge]

Bottom line, people shouldn't get too excited over this. Personally it doesn't even touch the major issues I have with s.172, being the lack of due process
Yeah I thought it was odd the judge went what I think was the maverick route and said it's unconstitutional because it's an absolute liability offence. Why not just stick with the obvious?

Seems like the Crown is just appealing arguing it isn't unconstitutional, which means the judge "avoided" having it go to the Oakes test.

I think though from this trial judge's move we may see some more of the s172 "bashing" starting up in the courts. I'm sure the Crown saw this coming a mile away. The legislators, well they don't care, they pulled the wool over the eyes of the people and made a quick buck so if it ends it's still a job well done for them :rolleyes: The police, well they're idiots anyway. Trying to be smart by now giving out two tickets doesn't really make any sense to me either. I mean if you get charged with stunting due to [only] speeding, can't only one charge or the other hold up given it's the same occurence? I mean hey why not charge murderers with 1st and 2nd degree, along with manslaughter all at the same time? LOL. I understand that in that case something like 1st degree may be dropped to 2nd degree on conviction but surely only one conviction can be made for one offence, no?

[Nikita]

Yeah I thought it was odd the judge went what I think was the maverick route and said it's unconstitutional because it's an absolute liability offence. Why not just stick with the obvious?

Seems like the Crown is just appealing arguing it isn't unconstitutional, which means the judge "avoided" having it go to the Oakes test.

Well in all due fairness to the Judge, I'm hearing that the challenge itself was limited to that one section of the act and that one ground of alleged 'unconstitutionality'. If that's true, the Judge had no jurisdiction to rule on other parts of the law or the law as a whole

I think though from this trial judge's move we may see some more of the s172 "bashing" starting up in the courts. I'm sure the Crown saw this coming a mile away. The legislators, well they don't care, they pulled the wool over the eyes of the people and made a quick buck so if it ends it's still a job well done for them :rolleyes: The police, well they're idiots anyway. Trying to be smart by now giving out two tickets doesn't really make any sense to me either. I mean if you get charged with stunting due to [only] speeding, can't only one charge or the other hold up given it's the same occurence? I mean hey why not charge murderers with 1st and 2nd degree, along with manslaughter all at the same time? LOL. I understand that in that case something like 1st degree may be dropped to 2nd degree on conviction but surely only one conviction can be made for one offence, no?

Yeah, I personally see it as an abuse of process and I think some JPs/Judges may see it that way too. Even though it's two separate charges, there's a principle in law called the Kienapple principle that doesn't allow multiple convictions for one transaction where all elements of the two offense are the same notwithstanding that the elements of each of the two offenses can be made out. (LOL...this is almost a shamefully bare-bones explanation of that principle, I argued it once and submitted volumes of paper to support it, but I'm surely trying to put it as simply as possible here.)

[actng]

I agree that people are overextending the application of this ruling to other cases. I commented earlier that this barely even sets a precedent...though for other reasons than the narrowness of the part of s.172 that's affected. As I stated earlier, this is only a OCJ decision, which even if it did strike down the entire law is not binding on future OCJ decisions or possibly even HTA decisions. At most it's persuasive on this one narrow ground that was even ruled on, the speeding/strict liability/criminal record/jail time issue and at this early stage it's persuaviness is weak. In other words, not much has changed, not enough has changed, and what has changed has really only changed wrt to this one case. Remember decisions are made not only on law but also on the facts of the case being used to challenge the decision. Any JP or Judge can simply toss it on the basis that the facts are different, and there are rarely two cases with the exact same facts.

Bottom line, people shouldn't get too excited over this. Personally it doesn't even touch the major issues I have with s.172, being the lack of due process, so we have a long way to go before breakin' out the beers, so to speak.

i agree with you

if you voiced this earlier in this thread and i missed it and included you in my blanket statement that there wasn't a single post that demonstrates any understanding of the implication of this appeal, i apologize.

[actng]

the biggest ******** is still the roadside suspension/impoundment done solely at the discretion of one person (the police).

compared to drunk driving, there are at least THREE rounds of breathalyzer tests and other drunk tests that are performed at roadside prior to impounding and suspension.

s172 requires no testing/evidence.

i discussed this with a lawyer today and he says this is a tough battle to fight. because if someone does successfully challenge the validity of roadside suspension/impoundment for s172, it opens a whole new can of worms for all the other roadside suspension/impoundment for other sections of the HTA, which the courts/judges/JPs/politicians will have none of.

so it looks like this roadside BS is here to stay.

[Speedeamon]

there is some information here that explains this in non-legal jargon...

http://trafficticketsolutions.blogspot.com/2009/09/stunt-driving-ruled-unconstitutional-in.html

read this before you decide to ignore your speedometer!

[Nikita]

i agree with you

if you voiced this earlier in this thread and i missed it and included you in my blanket statement that there wasn't a single post that demonstrates any understanding of the implication of this appeal, i apologize.

Thank you, it's rare, and refreshing, to see politeness and civility here so I appreciate that. That said, no apology necessary, the thread is a long one, I miss posts too, we all do (though most never admit it...lol). Anyway...no biggie, I didn't take it personally. In fact your post, again, was refreshing in that you actually gave this issue some thought before posting and made an intelligent response.