Criminal Code Section 39 re impounding of Car

According to the Criminal Code;

39. (1) Every one who is in peaceable possession of personal property under a claim of right, and every one acting under his authority, is protected from criminal responsibility for defending that possession, even against a person entitled by law to possession of it, if he uses no more force than is necessary.

The case law that I have found would indicate that a person speeding over 50km/h could in theory refuse to exit the vehicle and remain in the vehicle to defend it from being towed, thereby using "reasonable force" to defend their possession (in this case the car) against a person entitled by law to possession of it (the police officer). This would also stand within the overall tone of the Charter rights protecting against UNLAWFUL search and SEIZURE whereby the car is being UNLAWFULLY SEIZED as DUE PROCESS has not been carried out in a court of law. The seizure is punitive in nature.

If I was a single man with sufficient funds I would consider testing this, just for the principle that I do not feel that the police have the right to take a car for a week as this is a clearly punitive action, not based on any due process.

On the other hand, I personally can not see a situation where I would be speeding that fast, and as I have a family to take care of, I would not wish to act in a manner that would cost my family undue hardship.

We do not say that we disagree. But someone else does. (Cough, Fantino, cough)

If someone refused to exit, then arrest as HTA 172 is an arrestable offence under the HTA.

Once someone is arrested under the HTA the motor vehicle can be detained with which the offence was committed until the final disposition of any prosecution under this Act.

Nice find Mrcpu....... Anybody here single??

My understanding is that a charter challenge is being painstakingly put together against s. 172. It's never a quick process. We haven't had too many updates on its progress but the law is being fought on precisely those grounds.

Good to see something being done through legal channels.

I'm not familiar with how a challenge works - if successful, does it completely strike 172 from the HTA?

Ya no kidding i dont get where People like Fantino seem to think they are over the laws and rights of this own country.

However abuses power like that sure as hell does not belong to be the OPP cheif.

172 has always been unjust and unlawful. Maybee everyone isnt going 50 over. I remember they put those signs back for the oil crisis.

Time to change them back, oil is around 40 $ a barrel. Cars are more efficient at higher speeds now. They are also safer.

One day when this all blows over this province is going to owe alot of people a lot of money.

All these people that had their property STOLEN are going to have to be reimbursed.

Innocent until proven guilty. It would be one thing to make a law to seize a car after found guilty in a court of law but to seize the car on the side of the road is unlawful and unjust.

172 was pathetic. How can you give the same penalty for 150 on the 401 at 3 am (complete joke) and fine someone the same for going 90 downtown or in a school zone!. Clearly the later (second) one deserves something more serious and the first one just deserves a ticket.

They sold this law to us to stop street racing. They didn't call it stunt driving they said it was for street racing.

I am sure the well over 10,000 probably more close to 15 or 13 k now are going to want their money back for the inconvenience when the province unlawfully stole their vehicles for 7 days.

tdrive2 wrote:

Time to change them back, oil is around 40 $ a barrel. Cars are more efficient at higher speeds now. They are also safer.

I disagree with the efficiency part here. The formula for the required power to overcome the air drag is:

Where p-creature is Greek "Ro" (density of fluid/air), A is the area of the front of the object (against which the fluid is pushing), and Cd is the drag coefficient, around 0.25-0.45 for cars, and v is velocity in m/s (that is relative to wind - wind blowing against you increases air drag and vice versa). The engineers have reduced the Cd to 0.25, but there is nothing that can be done otherwise unless the car is really low, with a very little front area. And the drag is a function of a square of the speed, and the power output required to susteain the speed is a function of a cube of speed, so it will take 8 times as much energy (read: fuel) to sustain double the speed. If you have read about the Bugatti Veyron, at top speed of 375 km/hr it uses up 78L of fuel for 100 km (3 MPG), while highway rating is 20 L/100 km.

Of course there are many factor that affect this fuel efficiency, like the efficiency of transmission, engine power output at certain RPMs, the torque developed, so most cars have "best mpg" speed of in-between 90 (older squarish Volvos and Olds, etc) to 130 (higher-end cars) km/hr. Going faster than that simply uses up more fuel.

Not to mention the SUVs which have a "best" speed of closer to 70-80 km/h. My Escape gets much better mileage on rural roads because of that (~100 km more per tank). 80 km/h, engine speed around 1800 RPM with the torque converter locked.

Anyone who drives 30 years ACCIDENT FREE should be given a pat on the back by those interested in safety.

If you look, photo radar is still in the OHTA

Squishy wrote:

I'm not familiar with how a challenge works - if successful, does it completely strike 172 from the HTA?

Could go any number of ways. Complete removal is unlikely, but the courts could rule that the impoundment is unconstitutional and strike just that portion, or they could remove the upfront license suspension as well. The offence itself may stay in, but they might also strike down the regulation that defines "stunt driving" and "racing" as being too vague and open to abuse. We'll have to wait and see.

think the only thing you might see is the "impoundment" portion. I can see the licence suspension remaining in affect, it is similiar based as the 90 day ADLS which has been around for years.

I think you're right, bear.

If this gets throw away what happens to the over 10,000 individuals who have been ripped off and were denied they're rights as Canadian citizens to a fair trial.

What about the ones who were guilty on the side of the road.

What about all those 10,000 people who had their license suspended and cars stolen for 7 days. What about the towing and rental fees?

All these people were victims of this before they had their day in court and right to a fair trial.

Is the province going to reimburse them for this breach of their rights as citizens?

We already had laws to deal with this stuff just fine!

In fact this law lets the real street racers off the ones who should be charged with careless driving, this stunt racing law lets them off easier!

I agree street racing and stunt driving deserves punishment.

Going 150 in the middle of night in the left lane does not deserve impoundment, suspension, and to be labeled stunt driving.

What i am really curious about is once this law is found to be unjust what happens to all those people who got ripped off ?

I cant wait the day this law is found unjust.

If 172 gets removed does this mean 50 over the speed limit would essentially be removed and the fines or punishment for 49 over would apply to this?

Would this also mean 4 demerit points for the 30 to 49 over would now apply for 50 over?

tdrive2 wrote:

Ya no kidding i dont get where People like Fantino seem to think they are over the laws and rights of this own country.

However abuses power like that sure as hell does not belong to be the OPP cheif.

Don't worry about him, his day is coming in more ways then one!

and he knows he's trouble!

http://www.cbc.ca/canada/toronto/story/ ... alcomments

tdrive2 wrote:

What i am really curious about is once this law is found to be unjust what happens to all those people who got ripped off ?

I cant wait the day this law is found unjust.

From what Mr. Newell has told me, after meeting with a Constitutional Lawyer

The bottom line is this challenge would run into six figures if it were handled professionally by a lawyer. If we won, it would be appealed and if we won again, the province would have leave to appeal to the Supreme Court of Canada.

Allan said the Ontario Government would take the challenge very seriously and take every step to ensure they won.

He also said that a law is the law until it is repealed. But there is no option for giving anyone their money back if the law is struck down. To do so would promote (legal) chaos he said.

When I stated that I believed the law was passed fraudulently, he dismissed that at the outset but the more he heard, the less dismissive he became. He was clearly interested in that aspect of the case despite its seeming inadmissiblitiy

John has a great book out on the STREET RACING LEGISLATION

Canadian ISBN # 978-0-9810028-0-4

If anyone in the GTA wishes borrow a copy to read, PM me!

tdrive2 wrote:

If 172 gets removed does this mean 50 over the speed limit would essentially be removed and the fines or punishment for 49 over would apply to this?

Would this also mean 4 demerit points for the 30 to 49 over would now apply for 50 over?

I believe there are fines for up to 59 over. 60 over automatically got you an appointment with the robed ones and you had to explain why you still needed your license. Correct me if I'm wrong anyone.

128.13(3) already provides ample penalties for exceeding the speed limit by over 50 km/hr. 6 points, plus hefty fine, plus massive insurance increase, but no roadside license suspension nor towing the car. Good ol' law that's been replaced by a bad new one.

tdrive2 wrote:

In fact this law lets the real street racers off the ones who should be charged with careless driving, this stunt racing law lets them off easier!.

How do you figure that?

Careless = $325 and 6 points

172 = $2000 and 6 points

I think he meant dangerous driving.

Correct i got the two confused. Thanks reflections.

What is happening with this unconstitutional law is there any active court cases?

hwybear wrote:

tdrive2 wrote:

In fact this law lets the real street racers off the ones who should be charged with careless driving, this stunt racing law lets them off easier!.

How do you figure that?

Careless = $325 and 6 points

172 = $2000 and 6 points

OK, give the "racers" 2 charges, Careless and Dangerous. Dangerous is not that hard to prove. We can change the fine structure to suit. For that charge I will support a licence suspension....

Don't we have something against laying two charges for the same offense? Or is that just in the States?

Squishy wrote:

Don't we have something against laying two charges for the same offense? Or is that just in the States?

But there are two offences. One is speeding the other is racing.

If you line up side by side with someone else and proceed to try and beat them to a specific spot that's Dangerous. If you try really hard, i.e. exceeding the speed limit by 50KPH, that would be careless. I would then agree that an officer could take away the drivers' license, but not the car. Slap the dumbdumb ricer, um, I mean racer with 2 charges and watch the occurences of real street racing drop. Just doing 50 over is not racing.