“Case Law Update”

Just surfing Canlii and came across two recent decisions.

• R. v. Brown, 2009 ONCJ 6
• R. v. Sgotto, 2009 ONCJ 48

Some people had argued that s.172 violated the Charter because it was an absolute liability charge with the possibility of imprisonment contrary to the Supreme Court's interpretation in R. v. Sault Ste Marie and B.C. Motor Vehicle Act. Therefore, the argument went, this section was unconstitutional and of no force and effect.

The two cases cited above put these claims to rest. The courts have chosen instead to interpret 172 as a strict liability charge separate from s.128. Up to 49km/h over, it's an absolute liability charge, but at 50 over you can use the due diligence defence.

In other words, if you are driving faster than the posted limit, no excuse or explanation will get you off the hook. BUT if you speed up and go really fast, then you can provide a reasonable explanation! Only in Ontario folks. Only in Ontario.

ticketcombat wrote:Just surfing Canlii and came across two recent decisions.

• R. v. Brown, 2009 ONCJ 6
• R. v. Sgotto, 2009 ONCJ 48

Some people had argued that s.172 violated the Charter because it was an absolute liability charge with the possibility of imprisonment contrary to the Supreme Court's interpretation in R. v. Sault Ste Marie and B.C. Motor Vehicle Act. Therefore, the argument went, this section was unconstitutional and of no force and effect.

The two cases cited above put these claims to rest. The courts have chosen instead to interpret 172 as a strict liability charge separate from s.128. Up to 49km/h over, it's an absolute liability charge, but at 50 over you can use the due diligence defence.

In other words, if you are driving faster than the posted limit, no excuse or explanation will get you off the hook. BUT if you speed up and go really fast, then you can provide a reasonable explanation! Only in Ontario folks. Only in Ontario.

You might be ok if you put your 4-ways on.

Cheers

Viper1

How can you be afforded defence of due dilligence if your vehicle has been impounded and your licence suspended... in other words, penalty handed out before you have an opportunity to provide any defence to strict liability?

In R. v. Brown the court stated:

the applicant submitted that where speeding is the only allegation within a charge of stunt driving, there is no conceivable due diligence defence available. With respect, this Court declines to speculate on possible defences. In my view, it is this Courts responsibility to simply acknowledge that a due diligence defence is available and leave the development of the defence of what the proverbial ‘reasonable person might do, to the creative thinking of counsel.

Hmm, what could the reasonable person say???

According to the Peterborough Examiner OPP Constable Lloyd Tapp accused of driving 180km/h testified he wasn't paying attention to the speedometer but was going with the flow of traffic. He said he would never drive at such "ridiculous" speeds. "Personally, it's against my code of ethics to travel at that speed."

Well there you have it. Read, memorize, repeat.

Ooops sorry: join the OPP, memorize, repeat.

At least Heidi Fisher's already got step one covered!

Court date was March 24th for Heidi Habitual , any news on that?

ticketcombat wrote:OPP Constable Lloyd Tapp accused of driving 180km/h testified he wasn't paying attention to the speedometer but was going with the flow of traffic. He said he would never drive at such "ridiculous" speeds. "Personally, it's against my code of ethics to travel at that speed."

Great. If he wasn't paying attention to speedometer, shouldn't he be charged with "Careless Driving" based on his own testimony? That is actually more fitting than perhaps a half of all "Careless Driving" charges laid.

Else Lloyd must be so used to rip past the rest of us folk at 50 km/hr over THEIR speed that, when the traffic was moving 130, he felt it was his duty to overtake everyone as if they were standing still, without even realizing how fast everyone else was going.

ticketcombat wrote:Hmm, what could the reasonable person say???

Even if it's "against my code of ethics" to speed excessively, how's that going to help when the tow truck pulls up? Apparently the courts missed that part. Seems like strict liability for court, absolute liability at the roadside. We're starting to turn into a banana republic without the climate for bananas (to quote comedian Lorne Elliott).

Okay humm flow of traffic at 180.

I don't know about that.

Okay maybe on the 400 N or the 407 but i doubt this.

First of all anyone that sees a cruiser will not have the balls to drive over 130. I mean if you are your probably more likely to run.

I have seen very fast flow of traffic up to high 140 a few times on the 401.

Secondly this guy is a police officer, he knows what the limit is infact he would impound your car if you went that fast.

180 is friggin fast. You cant even get up there in most 4 cylinder cars.

Even if the flow of traffic was 140 i wonder what this guy has done before.

Same as Miss Fischer.

Do you guys even think if they got caught doing this just one time how many other times they have done *EDIT* like this with the fact most officers would not even think of doing this to own of their own?

Hi everyone. How are you?

I couldn't remember my email address or password so I had to create a new account.

Just in the process of reading the first case TC posted and found many errors.

I already proved last September that s. 172 is an absolute liability offence and also contains mens rea offences.

The judge claims all of s. 172 is strict liability and there is no evidence to support otherwise.

Wow!

I'll find my posts from last year and post them.

There are certain elements of s. 172 that is mens rea.

And part of the penalty of the offence is a 7 day licence suspension. Therefore, if it were strict liability with a defence of due diligence available, then clearly you would be entitled to a hearing regarding the suspension.

No hearing is provided because they are treating it as an absolute liability offence, which still requires a hearing by law and as no hearing is provided, your charter rights are still violated.

The suspension falls under administrative law as it is an administrative suspension. However, even if a hearing were held the forum would have no jurisdiction to hear the case because s. 172 requires the cop to reasonable and probable grounds to make the stop, and the standard of proof is reasonable doubt, both of which are beyond the jurisdiction of administrative law and the Licence Appeal Tribunal.

It is also the government who created the law. The government informed all police departments what the law is. As you may recall, I contract the OPP on 5 different occasions to inquire and make sure they were all singing the same note. They all stated it was an absolutely liability offence.

I also called my local department several different times to inquire, and they too stated absolute liability. Since the police were informed by the government as to what offence it was how can this judge not state the government claims it is a strict liability offence?

I'm glad to see the BC motor vehicle case cited, I was the first to cite that case.

As I stated last year, the going over 50 is already covered in the HTA.

A speeding ticket is just that.

Where the two identical offences are located in the HTA is meaningless. Speeding over 50 is subject to a fine. Section 128 remains a valid live section.

Section 172 incorporates a whole lot of extra penalties for the same speeding offence.

Even if this were legal, the accused is entitled to the benefit of the lesser penalty of the two.

This judge states the POA does not prevent the HTA from having two sections cover the same offence, which may be true (though I disagree with him), however, the law does prevent the two same offences being covered from having two different classifications.

The judge may claim its permissible to have two offences cover the same act but he cannot deny that the accused is entitled to the lesser penalty.

Countless previous case articulate speeding is an absolute liability, (which this judge admits too at para 89) and now s. 172 is being classified a strict liability, so the same offence improperly has two classifications. And if you actually read it, it has three, because parts are mens rea.

Many portions of s. 172 also suffer from vagueness and are unenforcable.

I'll post a link to the other thread proving this point when I find it.

ticketcombat wrote:Just surfing Canlii and came across two recent decisions.

• R. v. Brown, 2009 ONCJ 6
• R. v. Sgotto, 2009 ONCJ 48

Some people had argued that s.172 violated the Charter because it was an absolute liability charge with the possibility of imprisonment contrary to the Supreme Court's interpretation in R. v. Sault Ste Marie and B.C. Motor Vehicle Act. Therefore, the argument went, this section was unconstitutional and of no force and effect.

The two cases cited above put these claims to rest. The courts have chosen instead to interpret 172 as a strict liability charge separate from s.128. Up to 49km/h over, it's an absolute liability charge, but at 50 over you can use the due diligence defence.

In other words, if you are driving faster than the posted limit, no excuse or explanation will get you off the hook. BUT if you speed up and go really fast, then you can provide a reasonable explanation! Only in Ontario folks. Only in Ontario.

I'm reading the second case now.

The justice said:

Thirdly, there is the issue of penalty. The penalties are far reaching and the consequences appear to be severe. They are however not extreme or outside the parameters of the Highway Traffic Act when compared to other offences such as Driving while Suspended or Driving without Insurance. Sentencing should take into account the seriousness of the offence as well as the potential of harm to others. The effect must be a deterrent to the defendant as well as the general public. This court does not find the penalties prescribed as unduly harsh. Given the nature of the driving behaviours prohibited by s.172(1), the Court does find the penalties flowing from convictions under s. 172(1) of the Highway Traffic Act to be proportional to the objective of the legislation.

I say:

Imprisonment is the most severe sentence imposed by law, apart from death, and is generally reserved as a last resort for occasions when other sanctions cannot achieve the objectives of the system. Yet here the accused faces a 6 month prison sentence for a first offence.

In contrast, until April 2009, a person could've acquired over 700 provincially imposed 12-hour suspensions per year without a fine or any prison time. Thus, the administration of justice is brought into disrepute by such an unreasonable and extravagant penalty under s. 172; as it is totally disproportionate to the offence and quite incompatible with the objective of a penal system.

It is basic to any theory of punishment that the sentence imposed must be a fit sentence proportionate to the seriousness of the offence. Speeders doing 50 kph over the limit is not the leading cause of death, injury or property damages; impaired driving is; yet the Province goes out of its way to still keep impaired drivers on our roadways reeking havoc.

Impaired driving is covered exclusinely under the Criminla Code, however, the government has now amended the HTA to increase the 12 hour suspension to 3 days for a first offence, when in reality, the suspensions are unconstitutional.

The Criminal Code impaired offences carry a 1 year driving prohibition, criminal record, and $1000 fine, but the penailites for Canada's leading cause of death injury or property damages has been determined to be too stirct by the Province, thus a three day suspension is all you get for blowing in the warn range.

Common law offences precluded punishment in the absence of a guilty mind and imprisonment is reserved for the more serious mens rea offences. The race stunt offence is also not criminal; we are dealing with a statutory offence. Therefore, imprisonment is not a plausible response and attaching a term of imprisonment to an absolute offence violates the principles of fundamental justice.

And suspending a drivers licence is one thing, seizing and impounding a provincially approved mechanically fit vehicle is quite another and does not advance the Provinces goal of ridding the highways of stunt drivers.

The vehicle is private property and not rationally connected to a drivers licence; thus the Province lacks power to seize and impound it. One can own a vehicle without possessing a drivers licence and it is not a crime to lend ones car to another person.

The vehicle is also not being preserved as evidence in a proceeding. The Province is permitting a third party under the Repair and Storage Liens Act to place a lien on the private property of the driver or another third party in circumstance of the car being borrowed.

Under HTA s. 207, the vicarious liability provision, when photo-radar existed, and if it returned, the owner of a vehicle can be charged with speeding under s. 128, even if he's not the driver.

However, under s. 207, an owner cannot be charged under s. 172.

The language of 207 provides for only one defence, namely that the person in possession of the motor vehicle at the time the offence was committed had not been entrusted by the owner with possession.

It is impossible to construe the section as permitting, or anticipating, the defence of reasonable care or due diligence, a strict liability offence.

Section 207 provided the potential for a person who had not done anything wrong (the owner) to be convicted of an offence committed by another.

The offence created by that section does not incorporate any element of fault. The state of mind of the owner, either at the time possession of the vehicle was entrusted to another, or at the time of the offence by the driver, is completely irrelevant to any prosecution under the section.

Thus the offence created by the section is, in every sense of the expression, an absolute liability offence.

However, courts have already determined that all vicarious liability provisions in the HTA are unconstitutional; but yet they still magically exist in Ontario.

"Vicarious liability has no role in quasi-criminal statutes ... and is not in accordance with the principles of fundamental justice."

Bear in mind, however, that s. 207 does not apply to s. 172.

So since an owner of a car cannot be convicted (only the driver of the car can) it raises a question of how the owners vehicle can legally be impounded if the owner was not driving it at the time of the s. 172 offence?

The owner, not the driver, is incurring liabilities for towing and storage.

The doctrine of vicarious liability has its origins in common law. Thus any statute which seeks to import the common law concept of vicarious liability into public welfare or regulatory offences, and which does not specifically make the state of mind of the person to whom such liability attaches relevant, can properly be construed as an absolute liability offence.

The owner of a car entrusted to another driver can be convicted under s. 128 when a driver goes 50 kph over the speed limit but the vehicle cannot be impounded.

In contrast, the owner of the car cannot be convicted when the car is entrusted to a driver who goes over 50 kph over the speed limit under s. 172 yet the car can be impounded.

The Ontario Legislature emphasized its overall goals, by stating in s. 172(18):

"The suspension of a drivers licence and the impoundment of a motor vehicle under this section are intended to promote compliance with this Act and to thereby safeguard the public..."

Impounding the owners car that was legally lent and entrusted in another in no way, shape or form promotes compliance with this Act.

The JP goes on to define a penalty.

Penalty is defined in Websters Dictionary as:

a punishment for breaking a law or other wise committing an offense against established authority; a disagreeable consequence suffered as a result of ones own folly or wrongdoing; a fine, forfeit etc. incurred when some condition is not observed.

Since the owner of the car entrusted to another commits no wrongdoing, they cannot be ordered to forfeit money for towing and storage; which is clearly a penalty.

Additionally, if your vehicle is stolen and then impounded, s. 172 (9) and (15) require you as the owner to pay towing and storage fees before your stolen property will be returned to you. Should you refuse refuse to pay, the impound facility is entitled to sell your stolen property.

Have you ever heard of anything so stupid?

First of all, its stolen property. Second, the police know it belongs to you and must return it to its rightful owner at no cost. Third, the impound facility is now in possession of stolen property under s. 354(1). Possession is defined in Criminal Code s. 4(3).

Theft of the vehicle is a Criminal Code offence.

Section 172 (16) states "The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the vehicle was detained under clause (5) (b) to recover any costs or other losses incurred by the owner in connection with the impoundment.

However, the person who stole the vehicle from the owner might not be caught by police, he mayve run off on foot and got away after being chased by police for violating any provision within s. 172.

The owner of the car would not know who the driver was so the owner can not sue the driver. This would leave the owner of the vehicle to pay the impound facility to get his stolen property back.

But as mentioned, vicarious liability has no role in quasi-criminal statutes and is not in accordance with the principles of fundamental justice.

The law cannot allow the impound facility who is in possession of stolen property to remain in possession of the stolen porperty or to benefit from being in possession of the stolen property by selling it when the rightful owner is known.

Moreover, there is a great deal of social stigma attached to a violation of HTA s. 172. In its haste to rewrite legislation, the Province without forethought ignored the fact that all strict liability crimes have the potential of sweeping in apparently innocent actors; however, it is part of our system of laws that the innocent not be punished.

The justice said:

Fourthly, the precision of the language used is a factor that should be noted. S. 3.7 of Regulation 455/07 defines stunt to include an activity where a person is driving a motor vehicle at a rate of speed that is 50 km per hour or more over the speed limit. The wording defines the exact point, indeed the point of departure from s. 128 of the Highway Traffic Act where s. 172(1) has jurisdiction. By its own definition, it is unique and different from s. 128 of the Highway Traffic Act.

I say:

No where does s. 128 define that s. 128 ends once an accused exceeds 50km per hour or more over the speed limit.

The justice says:

The legislature is well aware of the wording required to demonstrate its intention to create offences of mens rea, strict liability, and absolute liability. Had it intended to create an absolute liability offence, specific language could have been enacted to do so. By not prohibiting a defence of due diligence, the wording lends itself to a position reflecting a strict liability offence.

I say:

Speeding over 50 kms is an absloute liability. The Ontario courts already agree. Some of the wording of s. 172 creates a mens rea offence. The courts have already defined what words create this offence. Those words were ignored by this judge.

The justice said:

Regulation 455/07 defines a variety of stunts covering 8 subsections. These must be considered in their entirety, not just one subsection in isolation. It is impractical to suggest that only one or more of these could be classified as being in the category of "strict liability" while others could fall into another category. This would run against the rules of statutory interpretation. It would also counter the absurdity rule where an interpretation of the legislation could be perceived as unjust or unacceptable.

In analyzing the intent of the legislation with respect to s. 172(1) of the Highway Traffic Act, the court concludes that the entire section with its accompanying Regulation falls within the category of strict liability.

Considering the language and overall intent of the legislation, the presumption towards strict liability and the justifiable need to allow a reasonable defence, together with the decision of the Supreme Court of Canada in the R v Sault Ste Marie(1978) case and the decision of the Ontario Court of Appeal in R v Kanda(2008), the court concludes that s. 172(1) of the Highway Traffic Act is a strict liability offence.

I say:

The judge just proved my argument in the previous posted message. You cannot have two offence classifications within one offence.

The judge will also have to eat his own words because when I post my links from last September, it will prove beyond any doubt that some offences in s. 172 are absolute and some are men rea.

The justice said:

Regulation 455/07 does however use the language of an absolute liability offence. That will remain problematic until a higher court makes a definitive ruling on the matter.

I say:

Ah, welcome to reality!

Nice way to pass the buck, too, *EDIT*.

Each of the following is a separate offence under the stunt definition. The court claims its a strict liability offence, meaning you have a due diligence defence.

How can one have a due diligence excuse for driving a motor vehicle with a person in the trunk?

How could it be unintentional?

How can one have a due diligence excuse for driving a motor vehicle while the driver is not sitting in the drivers seat?

How could it be unintentional?

Para. 8 use the same wording as careless driving on a road, on a sidewalk or on a snow machine. This is a strict liability offence under s. 130 of the HTA for a vehicle, under the TO Municipal Code for a bicycle, and under the Snow Vehicle Act for a snow machine.

However, para. 8(i); (ii); (iii) and (iv)(4)(c) goes on to turn the clause into a mens rea offence because the words "an intention to" are used.

The words "intention to" indicate intent, and if you intend on doing something you are not committing a strict liability offence with a due diligence excuse, you are committing an intentional act which is a mens rea offence.

An offence of strict liability requires the minimal mental element of negligence in order to gain a conviction. Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take.

Since ignorance of the law is not an excuse for breaking the law, due diligence consists in taking steps to fulfill a duty imposed by law and not just be aware of the existence of a statutory prohibition or its interpretation.

Strict liability is an odd offence. One is innocent until proven guilty. One cannot be forced to be a witness against himself at trial. Yet the due diligence defence places the defence within the sole knowledge of the accused.

A strict liability offence is not permitted in criminal law. Criminal offences have always required proof of guilt beyond a reasonable doubt.

This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. The HTA is quasi-criminal. Regulatory offences were developed and recognized as a distinct category precisely for the purpose of relieving the Crown of the burden of proving mens rea. This is their hallmark.

Strict liability places a reverse burden on the accused. It is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. It is a virtual impossibility of proving regulatory offences beyond a reasonable doubt and this was central to this Court's decision in R. v. Sault Ste. Marie.

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will have the means of proof.

This is not unfair as the alternative is absolute liability which denies an accused any defence whatever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

Therefore, the accused can produce an excuse without having to take the stand, which does not offend s. 11(c) of the Charter and the reverse burden does not offend 11(d) of the Charter.

But s. 172 is NOT a strict liability offence.

There is no distinction between the conduct of going 50 kms over the speed limit under s. 128 and going 50 kms over the speed limit under s. 172.

How can speeding over 50 kph be a strict liability offence under s. 172 when the same speeding 50 over offence is an absolute liability offence under s. 128?

Nothing in the language of s. 128 suggests any intention on the part of the legislature to depart from continuing to impose fines for the absolute liability offence of going over 50 kph over the speed limit after s. 172 was enacted.

Once a licence has been issued, the right to use one's skill and ability to drive is protected under s. 7 of the Charter and cannot be taken away except in accordance with the principles of fundamental justice. But no hearing is provided with respect to the 7 day suspension.

Once the trial for the offence is heard, the judge can suspend your licence again for up to 2 years; thus, you are being punished twice for the same offence, which violates s. 11(h) of the Charter.

Since the MTO has found you guilty and suspended your licence at the road side and issued a penalty of a licence suspension, s. 11(h) bars the court of hearing the case as punishment by the MTO has already be issued.

There can be no doubt since the decision of this Court in R. v. Wigglesworth, [1987] 2 S.C.R. 541, that the rights guaranteed by s. 11 of the Charter are available to all persons who are prosecuted for public offences carrying punitive sanctions.

The words "no appeal from, or right to be heard before" in s. 172(13) automatically go far towards establishing that this is an absolute liability offence.

172(13) There is no appeal from, or right to be heard before, a vehicle detention, drivers licence suspension or vehicle impoundment under subsection (5), (6) or (7),... this subsection does not affect the taking of any proceeding in court.

The words "this subsection does not affect the taking of any proceeding in court" appear to give you the right to commence a court review of the MTO decision to suspend a licence or impound a vehicle.

Although it is correct that in the sense that no appeal is available, this is only because this is an administrative imposed suspension under administrative law, which does not apply appeals, it only provides for reviews and subsequent judicial reviews.

Judicial review of administrative decision, it must be noted, is different from an appeal. When sitting in review of a decision, the Court will only look at the method in which the decision was arrived at, whereas in appeal the correctness of the decision itself will be under question.

But the court has no jurisdiction to hear a case regarding an administrative sanction since no administrative hearing was held and no hearing transcript exists, thus, the court has nothing to review.

As is the case for appeals under the Criminal Code, transcripts of proceedings are required for provincial offences in respect of proceedings commenced by under Part III of the POA legislation.

There is no mandatory requirement for transcripts under Part I, however, as a term of imprisonment is attached to s. 172 it is processed under Part III. Part I is not a constitutionally protected liberty interest under s. 7 of the Charter as there is no imprisonment and deprivation of liberty which follows in the event of a conviction for an offence.

This difference is vital in appreciating administrative law in common law countries. Thus, the scope of judicial review may be limited to certain questions of farness or whether the administrative action is ultra vires.

In terms of ultra vires actions in the broad sense, a reviewing court may set aside an administrative decision if it is patently unreasonable.

However, the Province has breached the principals of fundamental justice by imposing sanctions prior to a fair hearing being held and before its burden discharged, thus its actions cannot be demonstrably justified in a free and democratic society.

The police were required to have reasonable and probable grounds to make the vehicle stop prior to suspending the licence, and since the MTO has no decision from a court articulating the stop was valid, they have no evidence to support the licence suspension or vehicle impoundment, thus the impoundment or suspension is automatically ultra vires the MTO and its decision is patently unreasonable.

Under HTA s. 57, the Lieutenant Governor in Council is empowered to make regulations establishing conduct review programs for persons who are applicants for or holders of a licence that have been suspended.

A fair hearing requires that the affected person be informed of the case against him or her, and be permitted to respond to that case.

Proceedings under the HTA are supposed to be held by the Licence Appeal Tribunal (like other provinces and territories provide) which is subject to the Statutory Powers Procedure Act provisions.

Section 10 thereof allows the accused to be represented by a representative of his or her own selection and s. 6(1) states due notice of the hearing is required while s. 10(1)(a) and (b) provides for examine, cross-examine and re-examine of witnesses.

The Evidence Act also permits the accused to call expert witnesses to offer proof to the contrary. Section 12 expressly states;

Expert evidence

12. Where it is intended by a party to examine as witnesses persons entitled, according to the law or practice, to give opinion evidence, not more than three of such witnesses may be called upon either side without the leave of the judge or other person presiding.

When considered in this sense, it is beyond doubt that a proper public proceeding with reasonable notice is required prior to suspensions being issued.

In contrast, the review proceedings in the Manitoba, Nova Scotia, P.E.I. and British Columbia ADLS programs require that relevant information be considered by the Registrar.

Although the legislation of other provinces provides greater review rights than does the Ontario, there is apparently no legal requirement that constitutionally valid legislation provide for any right of appeal from an administrative act. Accordingly, the sufficiency of the right of review in the ADLS Program is a matter for the legislature, though I disagree with this position.

Regardless, this only means the driver must commence the proceeding in the ordinary court instead of at the Licence Appeal Tribunal, but this does not provide the Province the right to suspend a licence or impound a vehicle until the Province has discharged its burden of proof that the vehicle stop by the police was lawful and that the police had reasonable and probable grounds, as articulated under s. 172(5), and s. 254 of the Criminal Code in the case of impaired.

The accused has no burden of proof. The Province bears the burden and the burden never shifts to the accused. The standard of proof the Province bears is beyond a reasonable doubt. The choice whether to submit to a rebuttal belongs to the accused and he or she retains the right to introduce such evidence despite its weaknesses.

It should also be noted that the British Columbia, Manitoba, Nova Scotia and Prince Edward Island programs provide for the issuance of a temporary licence after the brief roadside suspension expires.

This temporary licence allows the motorist to make alternative transportation arrangements and to seek review by the Registrar of the suspension. In Manitoba, Nova Scotia. and P.E.I., the temporary licence is valid for seven days; in B.C. it is valid for 21 days.

Importantly, section 13 of the Charter states "A witness who testifies in any proceedings has the right not to have any incriminating evidence so given used to incriminate that witness in any other proceedings, except in a prosecution for perjury or for the giving of contradictory evidence."

Therefore, if someone commences a proceeding in the ordinary court over the suspension or impoundment, all the evidence the driver testifies to therein is prevented from being used in the trial to gain a conviction on the charges laid; as the accused cannot at any time have any incriminating evidence so given used to incriminate that witness in any other proceedings.

The Province will be Charter barred from proceeding to gain a conviction as the evidence will be conscriptive when an accused, in violation of his Charter rights, is compelled to incriminate him or her self at the behest of the state; and conscriptive evidence which in the case of statements includes derivative evidence.

Thus, all evidence entered in the ordinary courts that was used in advance by the accused in the impoundment or licence suspension proceeding is excluded under s. 24 of the Charter because it fails the Collins and Stillman tests and will bring the administration of justice into disrepute by the inclusion of the evidence at trial.

The other major problem with s. 172 is that it's too vague in some regards.

The words used are completely subjective and essentially arbitrary, and provided no guidance to allow courts to reasonably interpret the words or devise a test that achieved the legislative objective.

Some terms are so open-ended that it failed to delineate with sufficient precision the illegal conduct it sought to proscribe and that it authorizes a "standardless sweep" by enforcement officials.

Reliance on enforcement officers to interpret the words in a sensible way accepts precisely the sort of "standardless sweep" and discretionary enforcement that are the hallmarks of vague and uncertain legislation. Therefore, s. 172 is void for vagueness and is, on that account, invalid and unenforceable.

How can one have a due diligence defence if the conduct committed was "an intention to"?

Having an intention to do something is mens rea. You intended to do it. Offences with intent do not permit a due diligence defence and are not a strict liability offence.

The HTA is public welfare or regulatory legislation. The provisions are aimed at keeping bad drivers off the road; they are not prohibitions which are "criminal in the true sense."

But quite frankly, clauses that use the words "an intention to" are true criminal offences that flows from giving a plain meaning to the wording of the legislation. Therefore, they should fall under dangerous driving or street racing under the Criminal Code.

Definition, "race" and "contest"

2. (1) For the purposes of section 172 of the Act, "race" and "contest" include any activity where one or more persons engage in any of the following driving behaviours:

1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.

2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.

3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

...

ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or

iii. repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

Stunt

1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.

2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.

3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.

4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

...

8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,

ii. stopping or slowing down a motor vehicle in a manner that indicates the drivers sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,

iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or

iv. making a left turn where,

(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;

(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and

(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle

There is no legal definitions in the HTA for the following terms: in a manner that indicates; in a manner that may; outdistancing or attempting to outdistance; in close proximity; for a period of time; without due care: without reasonable consideration for others; or a period of time that is longer than is reasonably required.

There are thousands of cops and each cop would have his own definition of what these terms and measurements are.

The "doctrine of vagueness" is founded on the rule of law, particularly on the principles of fair notice to citizens and limitation of enforcement discretion.

Factors to be considered in determining whether a law is too vague include (a) the need for flexibility and the interpretative role of the courts, (b) the impossibility of achieving absolute certainty, a standard of intelligibility being more appropriate and (c) the possibility that many varying judicial interpretations of a given disposition may exist and perhaps coexist.

The doctrine of vagueness can therefore be summed up in this proposition: a law will be found unconstitutionally vague if it so lacks in precision as not to give sufficient guidance for legal debate. This statement of the doctrine best conforms to the dictates of the rule of law in the modern State, and it reflects the prevailing argumentative, adversarial framework for the administration of justice.

Thus the doctrine of being void for vagueness applies. Vagueness can be raised under s. 7 of the Charter, since it is a principle of fundamental justice that laws may not be too vague.

Ironically, to return to the language used by the JP in one of these cases; he claims the precision of the wording was clear and indicated a strict liability offence. Duh!

A marked departure from the lawful rate of speed is a mens rea offence that incorporates wanton or reckless disregard and is often found in dangerous driving or criminal negligence causing injury or death cases.

Criminal negligence requires a more elevated standard. The departure from the norm must be more marked in both the physical and the mental elements of the offence.

The requirement for a greater marked departure in both the physical and mental elements is consistent with the higher level of moral blameworthiness associated with criminal negligence, namely, wanton or reckless disregard for the life or safety of others.

To establish that conduct is wanton or reckless the consequences must be more obvious. The greater the risk of harm the more likely it is that the consequences are the natural result of the conduct creating the risk. It is from this conduct that the conclusion that the accused had a wanton or reckless disregard for the lives or safety of others is drawn.

At law, the term wanton means "heedlessly," "ungoverned" and "undisciplined" or an "unrestrained disregard for the consequences." The word "reckless" means "heedless of consequences," "headlong," and "irresponsible."

Since the HTA appears to indicate 50 kmp over the speed limit is the speed to determine a marked departure from the norm, it cannot legally be proven that going 49kph over the speed limit is safe, and okay, while going 50 kph over (one km faster) now becomes a marked departure from the norm and wanton or reckless disregard for the lives or safety of others occurs with higher levels of moral blameworthiness.

Since going 50 kph over the speed limit has been identified as the marked departure from the norm, no one can be charged with stunt racing unless they were going more than 50 kph over the speed limit; as s. 2. (1)(1) in the regulation is defined by the words a marked departure from the lawful rate of speed.

Any lesser speeds involved, despite an actual race occurring, is beneath the marked departure of 50 kph over and is not subject to this law, which defeats the purpose the law was allegedly designed to prevent.

The JP in the case TC posted focused in on the NO PERSON SHALL part only when he stated the language is used in both strict and absolute offences.

Not only did the JP ignore the mens rea portions in most of s. 172; he also ignored the IS GUILTY part which accompanies an absolute liability offence; as the Legislature has made it clear that guilt will follow merely on proof of committing the proscribed act.

You are not provided a due diligence defence when the Act already determines you are guilty by the mere physical actus reus element.

You cannot be found guilty of a mens rea offence by the actus reus alone. You can also not be found guilty by the actus reus wording (IS GUILTY or ARE GUILTY) of the Act when mens rea is required to be proven.

The words "is guilty" effectively eliminate the defence of due diligence.

Racing, stunts, etc., prohibited

172. (1) No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager. 2007, c. 13, s. 21.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and ...

An absolute liability offence only allows the accused to challenge the evidence; but does not allow the accused to provide a defence to the offence.

Even where an offence was one of absolute liability, general defences that relate to the volitional elements of a crime (eg. infancy, insanity, necessity, compulsion and duress) are still available.

Absolute liability generally applied to regulatory offences, such as speeding. R. v Sault Ste. Marie recognized the need for and existence of an intermediate category of strict liability offences for public welfare offences, such as environmental or equipment related.

Many strict liability offences are found in the Equipment Section under Part VI of the Act, and which regulates things such as lamps on vehicles; lighted streets; possession of red lights on vehicles; visibility of lights; brakes; windshield wipers; mirrors; speedometers; safety glass; mufflers; alarm bells; televisions in vehicles; and various others.

HTA s. 84 provides more evidence that when the Act articulates the "is guilty" or "are guilty" words it is an absolute liability offence.

Section 84 is an absolute liability offence as s. 84(5) clearly indicates this fact. The words "are guilty" are used in s. 84(1).

Offence if wheel detaches from commercial motor vehicle

84.1 (1) Where a wheel becomes detached from a commercial motor vehicle, or from a vehicle being drawn by a commercial motor vehicle, while the commercial motor vehicle is on a highway, the operator of the commercial motor vehicle and the owner of the vehicle from which the wheel became detached are guilty of an offence.

...

(5) It is not a defence to a charge under subsection (1) that the person exercised due diligence to avoid or prevent the detaching of the wheel.

Strict liability offences under the Act deal with environmental issues; noise, smoke, etc., such as s. 75, which states;

75(4) A person having the control or charge of a motor vehicle shall not sound any bell, horn or other signaling device so as to make an unreasonable noise, and a driver of any motor vehicle shall not permit any unreasonable amount of smoke to escape from the motor vehicle, nor shall the driver at any time cause the motor vehicle to make any unnecessary noise, but this subsection does not apply to a motor vehicle of a municipal fire department while proceeding to a fire or answering a fire alarm call.

The strict liability offence does not use the words "is guilty" or "are guilty" because a due diligence defence is available. The accused can escape liability by demonstrating that he had exercised due diligence by taking all reasonable steps to avoid the commission of the prohibited act, or that he reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent.

The JP in the Brown case also claims the location of the offences in the HTA is somehow relevant in determining its classification, which is nonsense.

The JP points out in para 72 "that s. 128 falls within Part IX - Rate of Speed portion of the HTA while as noted above s. 172 is within Part X – Rules of the Road. This suggests that the legislators intended speeding of 50 kph or more above the posted speed limit, to be treated differently, depending on the charge laid."

Despite the nonsense, what the JP does not point out, however, is that both ss. 128 and 172 are also covered under Part XV – Procedures, Arrests and Penalties; so his point is meaningless.

HTA s. 57.2 is also a strict liability offence with a defence of due diligence and s. 57.2 is not found under Part X of the Act.

Moreover, under the HTA, the police can stop vehicles under two parts of the HTA, s. 48 or s. 216, so the location of an offence, penalty or procedure in the HTA proves nothing.

At para 34 of the decision, the JP acknowledges what wording triggers a mens rea offence; which includes the words "with intent" and "intentionally," and these offences are criminal in the true sense; as pointed out in para 34.

Clearly the words "an intention to" and "sole intention in" (which means with intent) are contained in the statutory s. 172 provision creating the offence.

These words convert the offence into one of full mens rea.

Since mens rea is specified, the accused cannot be convicted from the actus reus alone, a due diligence defence is not available; and the licence cannot be suspended and the vehicle cannot be impounded until proof of guilt is proven beyond a reasonable doubt.

The words "No Person Shall" (as articulated in s. 172) are also not used in a mens rea offence. They are used in either a strict or absolute liability offence, as the JP confirmed.

At para. 39 of the decision, the JP then corruptly claims "there is no specific prohibition to a due diligence offence in s. 172;" then in para. 40 claims "I conclude that the overall regulatory pattern of s. 172 is neutral" and at para 65 he claims, "Section 172 does not contain the triggering language that provides automatic classification of the offence."

Hello! Mr. JP, you just finished explaining the mens rea triggering words in para 34; and those triggering words are found in s. 172, so how can he claim the overall regulatory pattern of s. 172 is neutral or that s. 172 does not contain the triggering language that provides automatic classification?

A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary. The text of the provision is used first, and it is read as it is written, using the ordinary meaning of the words of the statute. Interpreting a provision always turns to one cardinal canon before all others; that a legislature says in a provision what it means and means in a provision what it says there.

Another rule of statutory construction is that its operation is not to be given to a statute so as to impair an existing right, actual obligation or correct interpretation. The strict liability offence cannot be inferred in the face of clear language and where legislation and case law is in conflict, there is a principle that legislation takes precedence insofar as there is any inconsistency.

Section 172 is governed almost entirely by the well-known decision of the Supreme Court of Canada in Sault Ste. Marie. It is also clear that s. 172 is the most poorly written law ever, and Dalton McGuilty is a lawyer, not only a politician.

A drivers license is considered a property interest as defined by US state constitutions. America is a common law nation, as is Canada. Decisions of US courts apply in Canada.

The US state supreme courts have stated:

"We have previously recognized the important property interest inherent in driver's licenses when we stated that "[t]here is not much question that in our mobile society the suspension of a driver's license . . . constitutes a serious deprivation. Thus, we concluded that a driver's license is a property interest entitled to protection under our Due Process Clause."

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The principles of Fundamental justice, as used in the Charter, involves more than natural justice and due process, which is largely procedural, and includes a substantive element.

However in Ontario, officers are illegally and unconstitutionally being the ultimate judges of their own decisions.

It is trite law that cops do not have any power beyond that which is specifically delegated to them by legislation or common law; and neither the HTA, Police Services Act nor the Waterfield principle provides officers such authority.

Moreover, it involved a breach of the nemo iudex in causa sua rule; the rule which provides that no person can be a judge in his own case, thus the irrationality is underscored.

The government is not precluded from resorting to s. 33 of the Charter in order to dispense with the requirements of fundamental justice, however, the Province never incorporated the notwithstanding clause in HTA s. 172. Bear in mind, incorporating the notwithstanding clause would still not make a prison term attached to a absolute liability offence lawful, though.

Section 7 of the Chater provides a right not to be deprived of life, liberty and security of the person, except in accordance with the principles of fundamental justice.

The automatic licence suspension offends s. 7 because it is a deprivation of the "security of the person," i.e., it has the potential to disrupt the family, social life and work and the seizure of the licence and vehicle is not valid.

The prison term attached to the absolute liability offences within s. 172 also violates s. 7 of the Charter.

Absolute liability does not per se violate s. 7 of the Charter. An offence offends the principles of fundamental justice irrespective of the nature of the offence if as a result; anyone is deprived of his life, liberty or security of the person, irrespective of the requirement of public interest.

There is also no need that imprisonment be mandatory. The combination of imprisonment and absolute liability can only be salvaged if the Province demonstrates, under s. 1, such a deprivation to be a justified limit in a free and democratic society. A test it will never meet thanks to the BC Motor Vehicle Act case.

At law, a drivers licence is a valid bilateral contract as all five key requirements for the creation of a contract are met. These are offer and acceptance (agreement), consideration, an intention to create legal relations, capacity and formalities. One signs the drivers licence and pays fees; and should the government breach the contract, it does so at its own peril.

The issuance of licences, which, once issued, require special provisions to abrogate them. Qualified citizens possess a vested right in a licence not only for pleasure but also for means of survival and out of employment necessity.

Section 8 of the Charter protects persons against unreasonable search and seizure.

The seizure of the licence and vehicle violate s. 8 of the Charter.

As even the JP stated, you cannot combine two classified offences in one offence. Yet that's exactly what s. 172 has done; and each improperly bears different standards of proof.

By imposing explicit wording in the HTA, the courts are restricted to them and s. 172 escapes redefinition by the courts. Creating law requires statutory construction and courts are only impetrators of law.

This is not perplexing language and, again, the provision does not suffer from silence; and even if it did, the rule of lenity or strict construction of statutes requires a court to resolve any ambiguity in favour of the accused.

Thus the rulings made are contrary to the HTA and it is clear that the JPs committed reversible errors and the decisions are patently unreasonable.

The principles of constitutionalism and the rule of law lie at the root of democratic governance. The rule of law is recognized in the preamble of the Charter which reads:

"Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law:"

The rule of law is thus recognized as a corner stone of our democratic form of government. It is the rule of law which guarantees the rights of citizens to protection against arbitrary and unconstitutional government action.

This same right is affirmed in s. 52(1) of the Constitution Act, 1982, which states:

"The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect."

Statutes which conflict with the Constitution are invalid in the most radical sense; and they do not become law.

It is elementary that the meaning of all provisions of all Acts must be enforced according to its terms at all times. The Province is thus required to act within the bounds of the Constitution and in accordance with the Charter at all times.

If a court and the crown cannot properly interpret the law then it is of no force and effect because a lay person whom the law applies to would not understand it either.

Since s. 172 is unconstitutional in many ways, the police are not impounding cars, they are stealing them and obstructing, interrupting and interfering with the person in the lawful use, enjoyment or operation of property while committing theft.

Under s. 494 of the Criminal Code, a driver can arrest the officer for theft under Code s. 322.(1) the second the officer begins to have the car stolen (impounded).

The cop can also be charged with mischief under Code s. 430 for interfering with your property and interfering with the enjoyment of your property.

The cop can also be charged with fraud or false pretences under Code s. 380 as the officer is allowing a third party to place a lien on your now stolen property.

Should the cop resist arrest, you can also charge them with resisting arrest.

Should they assault you while you are arresting them, you can charge them with assault under Code s. 270(1)(b).

Should the officer point his weapon at the citizen after being placed under arrest the officer can be charged under Code s. 87(1) for pointing a weapon.

Should the officer who has been arrested attempt to escape they can been charged under Code s. 145(1) for escape from lawful custody.

Should another cop come to the officers aid to prevent you from arresting them, you can charge that cop with obstruction of justice.

The notion of reasonable force and physical restraint is inherent in a power to arrest. Under s. 34, the citizen has the right to use such force as may be necessary to make an arrest and to continue the state of being under arrest, up to and including legally killing the officer, if need be, who is in possession of a gun.

If the citizen kills him, provided he cannot be otherwise taken, it is justifiable; though if the citizen is killed by the police in endeavoring to make such arrest, it is murder.

Property is defined under s. 2 of the Civil Remedies Act and means real or personal property.

Criminal Code s. 428 defines property as real and personal property of every description and deeds and instruments relating to or evidencing the title or right to property, or giving a right to recover or receive money or goods.

Ownership of property is defined in Code s. 588, which states;

Ownership

588. The real and personal property of which a person has, by law, the management, control or custody shall, for the purposes of an indictment or proceeding against any other person for an offence committed on or in respect of the property, be deemed to be the property of the person who has the management, control or custody of it.

What is involved here is a long-standing right of a citizen of this country to the control of his or her own property, including the right to determine who shall and who shall not be permitted to invade it.

The Province cannot use legislation as a roundabout route to make the exercise of a lawful privilege illegal. All sections of the Code are presumably enacted "in the public interest."

It would be dangerous to hold that private rights of the individual to the exclusive enjoyment of his own property are to be subject to invasion by peace officers not armed with express authority to justify their action.

The offence is complete when, with intent so steal anything, a person moves it or causes it to become movable. The word "anything" in the definition of theft includes intangible objects that are capable of being converted in some way that deprives the owner of his proprietary interest.

Theft is not limited to situations where there is an unlawful taking of the property. As the definition includes "conversion," theft can be committed even in cases where the accused was initially in lawful possession of the property. Conversion requires a manifest act inconsistent with the conditions or the terms of the initial lawful possession.

Should the accused not pay the storage fees arbitrary imposed by the Province the property can be sold for any price the storage company can obtain, thus the accused has their property converted fraudulently and without colour of right.

Code s. 19 exacts a price paid in the coin of injustice. Section 19 states: ignorance of the law by a person who commits an offence is not an excuse for committing the offence.

Code s. 21 depicts who is a party to an offence.

In order to be reasonable, seizures and impoundments must be authorized by a valid law. Section 172 is invalid and the impoundment is not reasonable or authorized by any valid law.

Under both the Charter and common law, agents of the state can only enter onto or confiscate someones property when the law specifically permits them to do so. Otherwise, they are constrained by the same rules regarding theft as everyone else. R. v. Caslake, [1998] 1 S.C.R. 51

The common law is no more immune from Charter scrutiny than is statute law, as the Supreme Court has repeatedly held, see RWDSU v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; B.C.G.E.U. v. British Columbia (Attorney General), [1988] 2 S.C.R. 214; R. v. Swain, [1991] 1 S.C.R. 933; R. v. Daviault, [1994] 3 S.C.R. 63, and R. v. Stone, [1999] 2 S.C.R. 290.

Code s. 25 provides protection of private persons acting under authority, and every one who is required or authorized by law to do anything in the administration or enforcement of the law as a private person is, if he acts on reasonable grounds, justified in doing what he is required or authorized to do and in using as much force as is necessary for that purpose.

Reasonable grounds to arrest are required under s. 494(1) but reasonable grounds are not required under s. 494(2).

The power to arrest under s. 494(2) is based upon the citizens own observation. Because it is based on their own discovery of an offence actually being committed there is no reason to refer to a belief based upon reasonable and probable grounds.

The person must be immediately apprehended and an interval of time between the commission of the offence and the discovery and commencement of pursuit is too long to justify an arrest without warrant under the Code.

Should the police seize and impound a car that is on private property then we can add a trespassing charge to the list under the Trespass to Property Act.

The power of a constable is not unlimited in respect to the interference with the person or property of a private person, and thus, on the facts here the police do not meet the Trojan Warhorse Waterfield test or Charter scrutiny and are not acting in the due execution of their duty at common law. R v. Waterfield [1963] 3 All E.R. 659 (C.C.A.).

The Province and the police operate under colour of law, but the law is not colour blind and no one is exempt from the law.

The police are not immune from liability under the law of negligence and the tort of negligent investigation and performance exists in Canada.

The limitation period for negligent investigation begins to run when the cause of action is complete and the harmful consequences result.

First, the police must demonstrate that they are acting in the exercise of a lawful duty when they engaged in the conduct in issue. They are not.

Second, and in addition to showing that the police were acting in the course of their duty, they must demonstrate that the conduct amounted to a justifiable use of police powers associated with that duty. It is not.

The police operate under an erroneous interpretation s. 172, and, ultimately, regardless of what the Province says, at law, each officer in Ontario does so at their own personal financial and criminal peril.

While mistakes of fact relevant to the commission of a criminal offence excuse an accused from criminal responsibility, mistakes regarding the law do not. There is no significant difference between a mistake of law and ignorance of the law. Ignorance of the law is blameworthy in itself.

No compelling policy reasons negate the duty of care. We do not have, nor does the law allow for, a two-tiered system of law or justice.

As stated by Chief Justice Dickson in R v. Dedman [1985] 2 S.C.R. 2: "It has always been a fundamental tenant of the rule of law in this country that the police in carrying out their general duties as law enforcement officers of the state have limited powers and are only entitled to interfere with the liberty or property of the citizen to the extent authorized by law.

Laskin, C.J., in R v. Biron U97612 S.C.R.56, made the point at pp. 64-65: 'Far more important, however, is the social and legal, and indeed, political, principle upon which our criminal law is based, namely, the right of an individual to be left alone, to be free of private and public restraint, save as the law provides otherwise. Only to the extent to which it so provides can a person be detained or his freedom of movement arrested.' Absent explicit or implied statutory authority, the police must be able to find authority for their actions at common law. Otherwise they act unlawfully."

Section 42(3) of the Police Service Act states;

Powers and duties of common law constable

(3) A police officer has the powers and duties ascribed to a constable at common law.

The police are obligated to be aware of all common law Court rulings, thus they have the requisite knowledge and know, or ought to know, what they are doing is illegal and mistake of fact will not suffice, and therefore, the police are knowingly and willingly committing theft when they impound vehicles.

Moreover, Section 50(1) of the Police Service Act expressly states;

Liability for torts

50(1) The board or the Crown in right of Ontario, as the case may be, is liable in respect of torts committed by members of the police force in the course of their employment.

The failure of a public officer to perform a statutory duty also constitutes misfeasance in a public office.

Police Services Act s. 41(1)(b) imposes on all Chiefs and Commissioners a freestanding statutory obligation to ensure that the members of the force carry out their duties in accordance with the provisions of the Police Services Act and the needs of the community. This includes an obligation to ensure that members of the police force do not injure members of the public through misconduct in the exercise of police functions.

The public complaints process allows the public to complain in respect of the conduct of a police officer. What an accused seeks, though, is not the opportunity to file a complaint that might result in the imposition of disciplinary sanctions, but, rather, compensation for the damage they have suffered as a consequence of the Chief and/or Commissioners inadequate supervision and misfeasance in office. The public complaint process is no alternative to liability in negligence.

Each Police Service Board breaches a duty of care under s. 31 by failing to discharge its statutory obligation and establish proper objectives, policies, procedures, priorities and monitoring the Chiefs performance to ensue adequate and effective police services.

Each municipality breaches a duty of care under Part III as some members of the Police Service Board are city councillors appointed to the board on behalf of the city by statute.

The Minister of Transportation has failed to carry out their duties for improper purposes, which constitutes misfeasance. It should be borne in mind that such decisions are generally made by persons of a high-level of authority in the agency, but may also properly be made by persons of a lower level of authority.

Under ss. 3 and 4 of the HTA the Minister of Transportation has delegated authority to the Deputy Minister, Registrar, Deputy Registrar and in some cases to every employee of the Ministry, who thus all become subject of misfeasance.

Under s. 5 of the Ministry of the Attorney General Act, the Attorney General of Ontario is required to see that the administration of public affairs is in accordance with the law and therefore he violated his statutory duty under the Ministry of the Attorney General Act.

The Province, through the Solicitor General under s. 3(2) breaches a private law obligation for failure of the Solicitor General to consult with, advise and monitor boards, develop and institute further policies and training procedures to promote programs to enhance professional police practices, standards and training to ensure that adequate and effective police services are provided.

A plaintiff cannot sue government for a policy decision; however, enforcement of that policy is an operational decision which gives rise to a duty of care. Odhauji Estate v. Yoodhouse 120031 3 S.C.R, 263.

To summarize, the Supreme Court ruled that the tort of misfeasance in a public office is an intentional tort whose distinguishing elements are twofold: (i) deliberate unlawful conduct in the exercise of public functions; and (ii) awareness that the conduct is unlawful and likely to injure the plaintiff.

And as evidenced above, Section 42(3) of the Police Service Act already deems all law enforcement officers to already be aware of all common law jurisprudence.

The Province has gone to great lengths to enact HTA legislation provisions providing protection for MTO employees, but it provides none for peace officers.

The Police Service Act and common law hold officers fully responsible for all breaches of law, both criminally and financially, and the damages officers cause by stealing cars is patently foreseeable.

There is sufficient proximity between an accused and government by way of the drivers licence to establish a prima facie duty of care, such that the wrongdoer ought to have its victim in mind as a person potentially harmed. A duty to take due care arises when the person or property of one was in such proximity to the person or property of another that, if due care was not taken; damage might be done by the one to the other.

Thus, a driver or vehicle owner will have no problem meeting the Anns/Cooper test. (Anns v. Merton London Borough Council 1978 House of Lords test - as modified in 2001 by the Supreme Court of Canada in Cooper v. Hobart)

Moreover, when decisions and conduct of the government, Registrar or any employee of the Ministry are not made in good faith they too are provided no protection under the Act. Section 55(22) and (23) states:

Protection from personal liability

(22) No action or other proceeding for damages shall be instituted against the Registrar or any employee of the Ministry for any act done in good faith in the execution or intended execution of his or her duty under this section or for any alleged neglect or default in the execution in good faith of that duty.

Crown not relieved of liability

(23) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (22) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in that subsection to which it would otherwise be subject.

Procedural fairness and natural justice are elementary protections designed to prevent the arbitrary exercise of political power, and is fundamental to the rule of law and the common law.

To this extent, jurisdictional questions must be answered correctly by the Licence Appeal Tribunal in order to be acting intra vires during the proceedings on the merits. The LAT has no jurisdiction to hear suspension appeals due to the reasonable doubt standard of proof in s. 172 and resulting presumption clause in s. 48 for impaired driving.

The principles of Common Law and Equity apply but the Tribunal fails to apply the proper burden of proof and fails to require the Province to discharge their burden of proof; yet the LAT still managed to issues decisions to the detriment of Ontario citizens and in favour of the Province without anyone noticing their corruptio…errors.

The specialized role and expertise of the LAT is reflected in the powers and duties assigned to the Tribunal pursuant to the Act. Interpreting the HTA falls squarely within the expertise of LAT, who function within the special sphere of the HTA.

The LAT is bound to base his or her decision on relevant considerations, avoid arbitrariness and act in good faith. In this regard, the Tribunal has received 100s of appeals under the Act in the past and issued equally as many orders to date and, accordingly, has developed an incorrect body of jurisprudence that guides it and functions as a precedent.

This argument is based on the claim that the Government has won over 90 per cent of cases decided at hearing despite the Province not providing the accused a hearing to determine if reasonable doubt was present and whether evidence to the contrary exist in s. 48 cases.

The Tribunal claims its independent of the Province yet the field of the administration of Justice rests entire within the exclusive power of the Province under s. 92(14) of the Constitution Act, 1867.

Under the Licence Appeal Tribunal Act, the Lieutenant Governor in Council appoints the members of the LAT and designates the term of their appointment. The Lieutenant Governor in Council also appoints the Commissioner and deputy Commissioners of the Ontario Provincial Police as well as the HTA Registrar and Deputy Registrar.

HTA s. 47 articulates that the Registrar may suspend a drivers licence under 47.(1)(b) on grounds cited in clause (d). Section 47 is subject to s. 47.1, but s. 47.1 only deals with clause (a) and (c) of s. 47 so it is not relevant in relation to the drivers licence being suspended under s. 47(b).

A police officer or officer appointed for carrying out the provisions of the HTA is only seizing a driver's licence on behalf of the Registrar under s. 212(1).

As evidenced in s. 48.3, a person is allowed to have their appeal heard by the Tribunal or the court.

Both ss. 48 and 172 use vitually the same statutory construction as s. 48.3 thus a person whose licence is suspended under HTA ss. 48 or 172 is having their licence suspended due to misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle under s. 47(d), and therefore, they can legally apply to the Licence Appeal Tribunal yet the Tribunal is illegally refusing jurisdiction to hear the case.

It is completely bizarre that s. 48.3(2.1) states there a person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence yet the Tribunal hears the case.

Meanwhile ss. 48(9) and 172(13) do NOT use the word after (it only uses the words before) yet the Tribunal improperly refuses to hear cases after the suspensions are issued when they are statutorily mandated and required to; as evidenced in s. 50(1).

Appeal

50. (1) Every person aggrieved by ... OR a decision of the Registrar under section ... 47 may appeal the decision to the Tribunal.

Section 3(1) of the Licence Appeal Tribunal Act also articulates they "shall" (shall = must) hold hearings that are assigned to it by or under any Act.

Duties and powers

3. (1) The Tribunal shall hold the hearings and perform the other duties that are assigned to it by or under any Act or regulation.

The Tribunal is Master of its own Procedure and its puppets are not immune from liability when acting contrary to law and in bad faith.

Section 5.5 of the Licence Appeal Tribunal Act states;

No personal liability

5.5 No action or other proceeding for damages shall be instituted against any member of the Tribunal or anyone appointed to the service of the Tribunal for any act done in good faith in the execution or intended execution of the persons duty or for any alleged neglect or default in the execution in good faith of the persons duty.

No objection can be taken to attaching consequences such as a fine to a validly enacted absolute liability offence, but the s. 172 penal consequences in the form of imprisonment give rise to a violation of s. 7 of the Charter and the Court is not only empowered, but obligated by the Constitution, to strike the section down.

Accordingly, severing the invalid sections or punishment best fulfills the terms of s. 52(1) of the Constitution Act, 1982, and the remaining Act will continue to be a functioning whole.

In meeting the objective of ridding the highways of dangerous drivers, other mechanisms under the Code are already in place. Dangerous driving is a codified offence and stunt racing is defined in Code s. 249.4(1).

Therefore, HTA s. 172 is deemed inoperative by the doctrine of federal paramountcy. The provincial legislation conflicts with, interferes with, infringes upon, and frustrates the Code and federal governments ability to enforce it paramount s. 249.4(1) legislation.

Canada has a federal system and the principle of exhaustiveness, an essential characteristic of the federal distribution of powers, ensures that the whole of legislative power, whether exercised or merely potential, is distributed between Parliament and the legislatures.

To prevent inconsistent legislation, the Constitution of Canada defines the jurisdiction of the federal and provincial levels of government within that federal system.

In some areas there is concurrent jurisdiction, provided legislation does not conflict and provided each level of government enacts its laws for an appropriate purpose. Where concurrent jurisdiction exists and the Government of Canada covers the field with legislation, any provincial legislation is rendered inoperative.

The subject of criminal law is entrusted to the Parliament of Canada. It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter. When a federal statute discloses such an intention it is inconsistent with it for the law of the province to govern the same conduct or matter.

A valid criminal law must be framed in terms of a prohibition coupled with a penalty, and must serve a typical criminal law purpose, such as order, safety, health, and morality. A law's "matter" is its leading feature or true character, often described as its pith and substance.

Where an offence is created by federal legislation in exercise of the authority under section 91(27), the penalties attached to that offence, as well as the offence itself, become matters within that paragraph of section 91 which are excluded from provincial jurisdiction.

By the Province enacting and pursuing a conviction under an unconstitutional s. 172 law, the federal government is barred from obtaining a conviction under a valid federal law, namely, Code s. 249.4(1).

The Supreme Court of Canada determined a double aspect doctrine exists, but it cannot apply in respect to street racing law for the Code covers the field exclusively, removing any doubt or uncertainty that a division of power is available to the Province to impose a lesser penalty.

The Province looks upon street racing as less severe then the federal government when comparing sanctions. The federal government imposes a term of imprisonment up to 5 years while the Province only imposes a term up to 6 month.

The double aspect doctrine permits both levels of government to legislate in one jurisdictional field for two different purposes; however, both governments legislate in the pith and substance of public safety; so the provincial legislation fails.

The federal characteristics of this subject matter are palpably more important than the provincial characteristics. The importance both governments place on the conduct is distinguishable by the imposed sanctions each level applies for the same committed act.

Provincial statutes that are virtually identical to a federal law raise no paramountcy issue as there is no inconsistency. The HTA can also be more demanding than the Code, but not less so. The fact that a provincial law imposes a stricter standard of conduct than a federal enactment does not violate the express contradiction test.

Courts have reasoned that in such situations a person may obey both laws by complying with the stricter of the two. But as evidenced above, while the street racing portions are the same the provincial penalty of 6 months in prison is vastly inferior to the co-existing federal street racing law; so the express contradiction test is met.

Additionally, a charge under s. 172 cannot be laid unless there are reasonable and probable grounds for believing the offence was committed. It is impossible to say that an offence is committed until the party arrested has been found guilty by the courts.

Thus, when an accused is charged, it is neither proven nor presumed that the accused has committed an offence, but there are reasonable grounds for believing that this has occurred.

The laying of charges in the legal process does not involve a determination of guilt, thus, the presumption of innocence under s. 11(d) as a principle of fundamental justice under s. 7 of the Charter still applies and licence suspension and vehicle impoundment sanctions cannot be imposed until a determination of guilt has been entered.

It should also be noted that s. 8 of the Charter does not merely prohibit unreasonable searches and "seizures." As Pratte J.A. observed in Minister of National Revenue v. Kruger Inc., [1984] 2 F.C. 535 (C.A.), at p. 548, it goes further and guarantees the right to be secure against unreasonable search and "seizure."

Given the reasons above, it is my conclusion that the province has over-stepped its area of legislative capability and offended the doctrine of colourability and paramountcy, as the pith and substance of the stunt and street racing portions of s. 172 deals with a matter within the exclusive legislative competence of Parliament under s. 91 of the Constitution Act, 1867.

Furthermore, going 50 kph over the speed limit is already covered under s. 128 and the remaining clauses of s. 172 are either mens rea offences or already covered under the careless driving provisions within the HTA.

It is basic to any theory of punishment that the sentence imposed must be a fit sentence proportionate to the seriousness of the offence, and even if s. 172 were valid, the administration of justice is brought into disrepute by such an unreasonable and extravagant penalty as it is totally disproportionate to the offence and quite incompatible with the objective of a penal system.

Therefore, s. 172 is not justified nor is it in any way saved by s. 1 of the Charter. Section 172 is not a valid limit prescribed by law and all sections relating to the suspension, vehicle seizure and impoundment is void ab initio and ceases to be operative.

The rule of law incorporates a number of themes, and most fundamentally, it requires government officials to exercise their authority according to law, and not arbitrarily. Unless legislation provides immunity for illegal action, which it does not, illegal action by police will result in a finding of abuse of process.

Since challenges to the law are under way, until s. 172 is determined to be constitutional, the gig is up and there is good reason to revisit the wisdom of even attempting to continue employing constitutionally invalid provisions to steal cars and suspend licences.

How come I can manage to come up with the proper arguments to win the case but lawyers cannot?

Know your rights and use them, folks!

My arguments on links from last year.

Man oh man it's nice to have you back. Just when I relegated you to the "Whatever happened to..." file, you return. I missed your legal analysis (even if the length drove Bear nuts!) Looking forward to your posts!

TC

Thanks TC. Not sure how much Ill be able to post though. If you ever handle one of these cases please, please make these arguments.

I was happy to see the BC Motor Vehicle case, Kanda case, and Sault Saint Marie cases cited in the decisions. I was the first (at least on here) to use those cases in regards to proving s. 172 is bogus.

Thanks for posting those cases, too. I find it extremely insulting to know we're paying these guys hundreds of thousands of dollars a year and they can't get it right and/or are too corrupt or lazy to make the proper decision.

One more for the dumbass club.

BROWN, J.P.

"I will now proceed to an analysis of Section 172 in combination with the Regulation, taking into account those factors as articulated in the Sault Ste. Marie and Kanda decisions. In that regard, I have the benefit of the decision of Justice of the Peace Cuthbertson in the case of R. v. Brown, reported at [2009]O.J.No.269. Although I do not agree with all of the conclusions, I would suggest that Justice of the Peace Cuthbertsons decision provides excellent analysis and framework for consideration of the classification of this particular offence. Looking at the four factors as set out: The overall regulatory pattern: first of all, I would agree with Justice MacPherson that the overall regulatory pattern here is neutral."

"I would consider the subject matter to be neutral."

"Again, in my view, the offence under Section 172 in conjunction with Section 3.7 of the Regulation sits right on the border line between absolute liability and strict liability offences,..."

"Clearly this is not a mens rea offence."