“Second Judge... 172 Unconstitutional”

Second judge rules "speed" portion of 172 unconstitutional:

A second Ontario judge has ruled that the province's stunt driving legislation is unconstitutional, but provincial police say they will continue to lay charges under the so-called street racing law.

A street-racing charge automatically leads to a conviction, which can carry a minimum fine of $2,000, an immediate driver suspension and vehicle impoundment, as well as a maximum jail sentence of six months.

Justice Peter West, a provincial court judge in Newmarket, found that an accused driver's Charter rights are "clearly infringed" by the potential jail time because the law doesn't permit the person to put forward a defence.

"There is no air of reality to the Crown's submissions that a defendant charged with stunt driving under section 172 of the Highway Traffic Act ... has an available defence of due diligence," West stated in a written ruling.

"The possibility of the imposition of up to six months imprisonment thereby renders this section unconstitutional."

In making his ruling, West dismissed stunt-driving charges against Alexandra Drutz, who was reportedly clocked going more than 150 km/h while driving on Hwy. 407 in March 2008.

The decision comes a little more than two months after a Belleville judge called the same law unconstitutional and overturned the conviction of Jane Raham, a 62-year-old grandmother from Oakville, charged with stunt driving.

Brian Starkman, the lawyer who successfully argued that appeal, told the Star at the time, "The reason why the judge found this to be unconstitutional is because, on the one hand, the person is exposed to a possible jail sentence. And, on the other hand, he has no means to defend himself at trial."

That ruling has been appealed by the attorney general's office.

There are various ways to be charged under Ontario's laws designed to target street racers. One of those is to drive 50 km/h over the speed limit, which is the same kind of "absolute liability" offence as other speeding infractions in the Highway Traffic Act, West said.

"It is my view that calling the conduct 'stunt' driving does not change its characterization - it is still a speeding offence albeit by a different name," he wrote.

The ruling doesn't encroach upon the police's ability to nab and charge reckless street racers. Rather, it argues that convicting someone on excessive speed alone — such as in Drutz case — is unconstitutional.

Still, the Ontario Provincial Police said Monday that it will continue laying charges under the stunt driving provisions.

"It has been an effective tool in combating speeding and reducing collisions and deaths on the highway," said Insp. Dave Ross. "(The law) hasn't been struck down, but we are aware of those two decisions."

More than 15,000 drivers have been charged under the stunt driving laws since they were introduced in 2007, Ross said.

Still, the Ontario Provincial Police said Monday that it will continue laying charges under the stunt driving provisions.

"It has been an effective tool in combating speeding and reducing collisions and deaths on the highway," said Insp. Dave Ross. "(The law) hasn't been struck down, but we are aware of those two decisions."

When will they learn?

If the courts are finding it unconstitutional, on what basis are they continuing to charge under that law? It's a waste of taxpayer dollars, and I think that their attitude shows blatant disrespect toward the Charter. They are daring the justice system to take it to the Supreme Court to strike down 172 before they are forced to rescind on their current practice.

However, they are digging their own grave because the case law is just going to build and build against them, and it's of their own doing.

there is a decision that came on email today, that it is constitutional, but of course the papers won't publish that one.

hwybear wrote:there is a decision that came on email today, that it is constitutional, but of course the papers won't publish that one.

It is still unconstitutional to imprison someone without a trial. Take that out and this law may stand.

It is still unconstitutional to imprison someone without a trial. Take that out and this law may stand.

But, if it's unconstitutional to imprison someone without a trial, why are people imprisoned and denied bail prior to their trial? I was at court this week and witnessed a case where the accused were arrested and held since April '08. The lawyers and the judge were having difficulties in scheduling time to finish the trial, and the judge got angry because one of the defense counsels was saying he wasn't available until after May, and said that this would have to take precedence given the nature of the accusation and the amount of time the accused have gone without justice. I know that there can be exceptions in the interest of public safety and justice, but there are cases where that is questionable.

Just curious....

Marquisse wrote:

It is still unconstitutional to imprison someone without a trial. Take that out and this law may stand.

But, if it's unconstitutional to imprison someone without a trial, why are people imprisoned and denied bail prior to their trial? I was at court this week and witnessed a case where the accused were arrested and held since April '08. The lawyers and the judge were having difficulties in scheduling time to finish the trial, and the judge got angry because one of the defense counsels was saying he wasn't available until after May, and said that this would have to take precedence given the nature of the accusation and the amount of time the accused have gone without justice. I know that there can be exceptions in the interest of public safety and justice, but there are cases where that is questionable.

Just curious....

The detainee was arrested, not issued a PON.

Can you not get arrested for Stunt Driving as well as receiving a PON?

Marquisse wrote:Can you not get arrested for Stunt Driving as well as receiving a PON?

yes you can be arrested for 172 offences, but it is not a PON, but rather a summons.

hwybear wrote:

Marquisse wrote:Can you not get arrested for Stunt Driving as well as receiving a PON?

yes you can be arrested for 172 offences, but it is not a PON, but rather a summons.

Summons may not be a PON but, you can still receive jail time. The law needs to be cleared up so that the jail time is only for say repeat offenders.

Reflections wrote:

hwybear wrote:

Marquisse wrote:Can you not get arrested for Stunt Driving as well as receiving a PON?

yes you can be arrested for 172 offences, but it is not a PON, but rather a summons.

Summons may not be a PON but, you can still receive jail time. The law needs to be cleared up so that the jail time is only for say repeat offenders.

Repeat offenders as in had their vehicle stolen or convicted in court?

I wonder if good ole OPP SGT Dennis Mahoney-Bruer is still using this law as a second income or is he still on paid vacation?

Zing.............

Reflections wrote:Zing.............

Is that a passage from Julian's bible?

BelSlySTi wrote:

Reflections wrote:Zing.............

Is that a passage from Julian's bible?

Julian's bible starts "Thou shalt worship at the house of the OPP. Bestow your absolute self to the OHTA and it shall be done. The world is a better place, as long as I have absolute control. So it shall pass."

I think I read that somewhere, bathroom wall maybe

And that other passage reads, "Thou shall not zing or zoom on the roads, and slow you shall pass."

Thou shall not Steal..............