“Sec. 172 Upheld”

ORONTO — The Ontario Court of Appeal has upheld the provinces controversial stunt racing law that includes potential jail sentences for speeding more than 50 kilometres per hour over the limit.

The ruling issued Thursday overturns a lower court decision and states there are now effectively two types of speeding offences in Ontario — speeding and "aggravated speeding."

The Court of Appeal also ordered a new trial for Jane Raham, a 62-year-old grandmother who was acquitted of stunt racing after she was stopped driving 131 kilometres per hour in an 80 kilometre per hour zone, while passing a truck.

The stunt racing law, enacted in 2007, was billed by the Ontario government as part of a crackdown on street racing.

When it was passed into law though, the offence included fines and potential jail terms of up to six months in custody simply for driving more than 50 kilometres over the limit.

The courts have previously interpreted speeding as an "absolute liability" offence, which means someone charged is not allowed to present a defence. The Supreme Court of Canada has ruled that it is unconstitutional for an offence to include the possibility of jail, when there is no right to a defence.

The Court of Appeal ruling distinguished between the amount that someone is accused of speeding.

If a driver is charged under the Ontario Highway Traffic Act with speeding of up to 50 kilometres over the limit, it will still be an "absolute liability" offence, since the penalties are fines and not potential jail terms.

But if the charge is stunt driving, then a driver is entitled to present a "due diligence" defence, that reasonable steps were taken to speed by less than 50 kilometres.

"I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence," wrote Justice David Doherty, with Justices Robert Blair and Kathryn Feldman concurring.

Doherty provided a number of examples where someone speeding might be acquitted of a stunt racing charge, such as pulling out into a passing lane for a few seconds or if it was shown the speedometer was malfunctioning.

In ordering a new trial for Raham, the court noted that she will now be permitted at her re-trial to "advance a due diligence defence" to explain why she was speeding.

Looks like we are good to charge. I predict that the numbers charged again will shoot up. I know many I work with were shy to lay the charge while it was under appeal and opted to part 3 50 over instead of the stunt driving.

OPS

OPS

It would appear all those that put their 172 trials over until the decision need to come up with a new strategy

Having read the newspaper article... if JPs/Justices in lower courts actually follow the Ontario Court of Appeal's guidance, this should work. (Key word: IF.) Actually it makes it easier to defend a stunt driving charge than regular speeding.

Doherty provided a number of examples where someone speeding might be acquitted of a stunt racing charge, such as pulling out into a passing lane for a few seconds or if it was shown the speedometer was malfunctioning.

Many JPs had simply said "well you admit you're speeding even 1 km/h over the limit so there goes your due diligence defence." What Doherty said to them was "WRONG," and said the due diligence is not to speeding, but to speeding 50 km/h or more over the limit. So if the defendant can show that they took reasonable steps to avoid going 50 km/h over the limit, even if they were speeding, they would be found not guilty of stunt driving. Speeding yes, but stunt driving no.

I'm not a legal expert, but I get the impression that Doherty actually thought this one through carefully and probably got it right.

Now raise the 400-Series speed limits already... Oh and on top of that, there's another issue with the up-front penalties (read: property seizure intended as de-facto punishment) for a strict liability offence... Roadside licence suspension would probably stand up as constitutional...