OHTA.ca

Is this strict liability? Does the drivers view have to be obstructed?

Any experiences or comments on defending this would be appreciated. The charge is based on operating to the left of centre on a curve. Does it matter whether the centre line has been marked?

149. (1) No vehicle shall be driven or operated to the left of the centre of a roadway designed for one or more lines of traffic in each direction,

(a) when approaching the crest of a grade or upon a curve in the roadway or within 30 metres of a bridge, viaduct or tunnel where the drivers view is obstructed within that distance so as to create a potential hazard in the event another vehicle might approach from the opposite direction; or

(b) when approaching within 30 metres of a level railway crossing. R.S.O. 1990, c. H.8, s. 149 (1).

Exception

(2) Subsection (1) does not apply,

(a) on a highway divided into clearly marked lanes where there are more such lanes for traffic in one direction than in the other direction;

(b) to a road service vehicle where precautions are taken to eliminate the hazard; or

(c) on a highway while it is designated for the use of one-way traffic. R.S.O. 1990, c. H.8, s. 149 (2).

Was there evidence that a dangerous situation was created as per the details of the statute (ie. an oncoming car braking, swerving, etc.)? If not, I don't see how the charge could be justified.

I would assume it's "absolute" but evidence would have to be provided that there was a potential hazard from apposing traffic. It seems to me a valid defense would be to show you COULD see a safe distance ahead. I frequently pass while still in the latter stages of a curve without concern.

It's an absolute liability offence. You are guilty by the mere act of doing the offence.

Strict liabilty deals with public welfare offences. Noise. Smoke. Spills. Etc.

An accused charged with a strict liability offence is provided a defence of reasonable mistake of fact and due diligence.

Interestingly, the presumption of innocence as guaranteed in s. 11(d) of the Charter is not violated by strict liability offences. The imposition of a reverse persuasive onus on the accused to establish due diligence on a balance of probabilities does not run counter to the presumption of innocence, notwithstanding the fact that the same reversal of onus would violate s. 11(d) in the criminal context.

A term of imprisonment attached to a strict liability offence does not violate either ss. 7 or 11(d) of the Charter.

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".

Criminal offences have always required proof of guilt beyond a reasonable doubt; the accused cannot, therefore, be convicted where there is a reasonable doubt as to guilt. This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. Thus, the question is not whether the accused has exercised some care, but whether the degree of care exercised was sufficient to meet the standard imposed.

If the polluters are to be effectively controlled, 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. In the regulatory context, there is nothing unfair about imposing that onus; it is essential for the protection of our vulnerable society.

It must not be forgotten that the virtual impossibility of proving regulatory offences beyond a reasonable doubt was central to this Court's decision in R v. Sault Ste. Marie, which classified offences 30 years ago, in 1978.

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 generally have the means of proof.

This would not seem 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.