“Cop Suspended With Pay, Hta 172”

On friday September 4 2009, The court of appeals in Napanee Ontario has ruled that this law is Unconstitutional. R. v Raham.

Speeding is Speeding

No more information at this time.

That's an interesting development. Let us know when more becomes available!

Trying to get a actual transcript.

I say again BOOOOOOOOOOOOOM

This is HUGE!

It's all over the news now. The ruling basically said that, indeed, speeding, no matter by how much, is an absolute liability offence and cannot have the possibility of imprisonment, therefore the inclusion of a specific speeding offence in O.Reg 455/07 violates section 7 of the Charter of Rights and Freedoms.

Police can still seize and impound cars and suspend licences at the roadside, however now that it has been established that 50 km/h over cannot be "stunt driving" in and of itself, using that specific provision to tow the car would be wrongful prosecution. Police can still use, for example, "drive a motor vehicle at a marked departure from the lawful rate of speed" to charge a driver under s. 172 who is going 50 km/h or more over the limit.

However, I think the door is now WIDE open for challenges to the property seizure provisions. This is especially the case since, right now, there is no "show cause," no recourse, no due process, etc., and the defendant, per the idea of strict liability, is entitled to defence of due diligence - which can't happen if the penalty is imposed up-front. An administrative licence suspension might stick, though. Time will tell...

It's unfortunate that the first successful challenge of this repugnant law should be on a narrow quibble about speeding. We already have proven and reasonable laws against speeding (and careless driving). The sordid heart of 172 -- the summary judgment, conviction, and vicious penalty on the spot, without possibility of appeal or redress -- is not directly under discussion in the Napanee case.

Still, I suppose it's a start.

I took a different take on Morton's report of the case (Good job finding it Bel!). He noted that there must be some form of mental element (mens rea) to warrant imprisonment. We've seen previous cases where the justices ruled 172 was a strict liability charge open to a due diligence defence.

This case goes the other way by stating that IF the only element to the charge is excessive speed, there is no mental element (intention) and no possibility of raising a due diligence defence. Therefore it's an absolute liability charge AND that violate s.7 if the penalty includes the possibility of imprisonment.

********* put it another way ****************

Before it was up to the defendant to show diligence - show how they tried to avoid going 50km/h over. The twist with this case is: if there is a possibility of imprisonment and the Crown simply shows the radar gun reading to get a conviction, then there is no possibility of coming up with a valid excuse. It is an absolute liability offence which violates s.7.

It's interesting to note that R. v. Brown, 2009 ONCJ 6 said the exact opposite:

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.

I found an equally interesting ruling that quietly went through in June.

Justice Woodworth, who presided over that case made the following ruling:

The respondent has not established that the deprivation of liberty resulting from this is demonstrably justified in a free and democratic society and as such Section 3.7 of Regulation 455 is not saved by section one.

Section 52(1) of the Constitution Act, 1982 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 and effect.

This court has found Section 3.7 of Reg.455/07 enacted pursuant to the Highway Traffic Act to be an offence of absolute liability for which a term of imprisonment is possible upon conviction. As this Subsection of the regulation in conjunction with the provisions of Section 172 of the HTA violates the liberty interest of the subject as guaranteed by the court Section 3.7 of Regulation 455/07 is declared to be of no force and effect.

Justice Woodworth also noted considerable precedent that has established, firmly, that speeding is absolute liability, end of discussion. Actually his ruling went even further with this law. He ruled that the seizure of the vehicle and licence suspension are not "true penal consequences" that would violate the Charter of Rights and Freedoms. (Fine, we'll see what the Ontario Court of Appeal says.) HOWEVER, counter-balancing that, Justice Woodworth stated that because speeding 50 km/h over the limit may be either a speeding (s. 128) or stunt driving (s. 172) charge, and the basis for that is solely the discretion of a police officer at the side of the road:

There does not appear to be any rational basis or ascertainable standards as to how that discretion will be utilized in determining what a person will be charged with in the circumstances of speeding at more than 50 kilometres above the speed limit. Thus based upon this factor s. 172 of the HTA does offend section 12 of the Charter in that the penalties may be arbitrarily imposed.

He did rule that this was justified by section 1 of the Charter in that the objectives are to safeguard the public. (We'll see if that stands up at a higher level.) This law will eventually reach the Supreme Court of Canada, I'm sure. The defendant, Johannes van der Merwe, was found not guilty due to lack of evidence (officers did not provide satisfactory evidence that they stopped the correct vehicle).

The other case that was interesting was R. v. Vanioukevitch, where the defendant advanced a due diligence defence but was convicted anyway. He stated that he was taking deliberate steps to avoid going more than 50 over, was driving (to his knowledge) well under that speed, has special driving training etc., but the LIDAR read 160 so he's guilty.

What if Ms. Raham here pulls a Myers, gets tired of all the brouhaha, and quietly takes a deal? Is the previous court ruling still binding on lower courts (JPs), or is it treated as if the previous ruling(s) never happened?

Transcript

BelSlySTi wrote:Transcript

http://www.over80.net/userfiles/file/ap ... dgment.pdf

"File damaged and can not be repaired"

Any one else unable to open?

Works for me. 23 pages, text (not scanned).

Officer Doolan testified that there was nothing unsafe or remarkable about Ms. Raham's lane change, and that the only evidence pertaining to the charge was the speed as indicated on the speed measuring device.

I think "unsafe or remarkable" should be a requirement on top of 50-over for 172. 50+ during the day, good visibility, reasonably light traffic - normal speeding, s. 128. 50+ at night or in otherwise poor visibility, higher traffic volumes, etc., then go with 172 for "stunt driving".

EDIT: Just finished reading it. Maybe it's for the best that Bookm can't open it..."speeding is a factor" is peppered across the document.

I did laugh out loud when Shakespeare was quoted.

I laughed when I read that part of what defines "stunt driving" is driving with a person in the trunk.

All those kids trying to smuggle their buddies into the drive-in had better watch out. Imagine being caught "Stunt driving" in your mother's Aveo. LOL!!!!!

Marquisse wrote:I laughed when I read that part of what defines "stunt driving" is driving with a person in the trunk.

All those kids trying to smuggle their buddies into the drive-in had better watch out. Imagine being caught "driving" in your mother's Aveo. LOL!!!!!

isn't that punishment in itself...AVEO

Am I missing something?... Still on page 10 but:

So she was charged for being 51 over, right?

I sure hope the following Genesis II specs are wrong then, or there's a good chance she was really driving just 48 over

Specifications for Decatur Police / Law Enforcement Radar System - Genesis-II Directional:

I'm not sure why no one wants to address the tolerance factor. Maybe people in general think everything is an exact science, as long as some digital number is displayed on a screen. We had a client who wanted us to assist him in his attempt to have his neighbor move his $3,000 fence 10 millimeters off "his" property. Just try explaining to people that, even with our billion dollar equipment (cough), we just can't make ground measurements that accurately (repetitively).

ix) "Officer Doolan testified that there was nothing unsafe

speed as indicated on the speed measuring device."

So why was she bothered by the police then?... Oh, right,... the little number on the Genesis II.

P.S. File didn't like Adobe Acrobat. Is fine with Adobe Reader.