OHTA.ca

Section 216(1) is an absolute liabilty offence while s. 216(3) is a mens rea offence.

Section 216(2) articulates a person "is guilty," which indictates the offence is commited by the mere actus reus.

Section 216(3) articulates the word "willfully," which signifies a mens rea offence.

Section 216(1) is unconstitutional as it contains a term of imprisonment which violates s. 7 of the Charter and is of no force and effect as mandated by s. 52 of the Constitution Act 1982.

B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486

Section 216(1) is unenforcable until the court strikes down the term of imprisonment.

Power of police officer to stop vehicle

216. (1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop. R.S.O. 1990, c. H.8, s. 216 (1).

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable, subject to subsection (3),

(a) to a fine of not less than $1,000 and not more than $10,000;

(b) to imprisonment for a term of not more than six months; or

(c) to both a fine and imprisonment. 1999, c. 13, s. 1 (1).

Escape by flight

(3) If a person is convicted of an offence under subsection (2) and the court is satisfied on the evidence that the person wilfully continued to avoid police when a police officer gave pursuit,

(a) the person is liable to a fine of not less than $5,000 and not more than $25,000, instead of the fine described in clause (2) (a);

(b) the court shall make an order imprisoning the person for a term of not less than 14 days and not more than six months, instead of the term described in clause (2) (b); and

(c) the court shall make an order suspending the persons drivers licence,

(i) for a period of five years, unless subclause (ii) applies, or

(ii) for a period of not less than 10 years, if the court is satisfied on the evidence that the persons conduct or the pursuit resulted in the death of or bodily harm to any person. 1999, c. 13, s. 1 (1).

Lifetime suspension

(4) An order under subclause (3) (c) (ii) may suspend the persons drivers licence for the remainder of the persons life. 1999, c. 13, s. 1 (1).

Suspension in addition

(4.1) Except in the case of a suspension for the remainder of the persons life, a suspension under clause (3) (c) is in addition to any other period for which the persons licence is suspended and is consecutive to that period. 1999, c. 13, s. 1 (1).

Notice of suspension

(4.2) Subject to subsection (4.3), in a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect:

"The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your drivers licence shall be suspended for five years".

1999, c. 13, s. 1 (1).

Same: death or bodily harm

(4.3) In a proceeding for a contravention of subsection (1) in which it is alleged that the person wilfully continued to avoid police when a police officer gave pursuit and that the persons conduct or the pursuit resulted in the death of or bodily harm to any person, the clerk or registrar of the court, before the court accepts the plea of the defendant, shall orally give a notice to the person to the following effect:

"The Highway Traffic Act provides that upon conviction of the offence with which you are charged, in the circumstances indicated therein, your drivers licence shall be suspended for not less than 10 years and that it may be suspended for the remainder of your life".

1999, c. 13, s. 1 (1).

Idem

(5) The suspension of a drivers licence under this section shall not be held to be invalid by reason of failure to give the notice provided for in subsection (4.2) or (4.3). R.S.O. 1990, c. H.8, s. 216 (5); 1999, c. 13, s. 1 (2).

Appeal of suspension

(6) An appeal may be taken from an order under clause (3) (c) or a decision to not make the order in the same manner as from a conviction or an acquittal under subsection (2). R.S.O. 1990, c. H.8, s. 216 (6); 1999, c. 13, s. 1 (3).

Stay of order on appeal

(7) Where an appeal is taken from an order under subsection (6), the court being appealed to may direct that the order being applied from shall be stayed pending the final disposition of the appeal or until otherwise ordered by that court. R.S.O. 1990, c. H.8, s. 216 (7); 1999, c. 13, s. 1 (4).

lawmen wrote:Section 216(1) is an absolute liabilty offence while s. 216(3) is a mens rea offence.

Section 216(2) articulates a person "is guilty," which indictates the offence is commited by the mere actus reus.

Section 216(3) articulates the word "willfully," which signifies a mens rea offence.

Section 216(1) is unconstitutional as it contains a term of imprisonment which violates s. 7 of the Charter and is of no force and effect as mandated by s. 52 of the Constitution Act 1982.

B.C. Motor Vehicle Act, [1985] 2 S.C.R. 486

http://csc.lexum.umontreal.ca/en/1985/1 ... 2-486.html

Section 216(1) is unenforcable until the court strikes down the term of imprisonment.

Why is this not enforceable? What does BC have to do with Ontario?

Just a case law for an answer would suffice.

The three type of offences that exist across Canada were classified 30 years ago, in 1978. They are mens rea, strict liability and absolute liability.

R. v. City of Sault Ste-Marie [1978] 2 S.C.R. 1299

Twenty-three years ago the Supreme Court of Canada determined in the BC Motor Vehicle Act case that absolute liability offences that contain a term of imprisonment are unconstitutional and of no force and effect as it breaches a persons rights under s. 7 of the Charter.

The Charter is part of the Constitution Act 1982. The Constitution of Canada includes the Constitution Act 1982, which included the Charter.

Section 52(1) of the Constitution Act 1982, articulates that;

"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."

The decision of the court applies across Canada, despite the particular case being heard in BC. Decisions of the court become common law. Courts intrepret law, they do not create it.

Therefore, s 216(1) is inconsistent with s. 7 of the Charter and of no force and effect; and s. 216(1) is unenforceable.

A judge could strike down the term of imprisonment and the remaining part of 216(1) becomes valid and enforceable. But the court hasnt done this yet.

The HTA is a complete mess. Many offences are duplicated, conflict, poorly written, ambiguous, unconstitutional and/or unenforceable. The HTA could be half the size it currently is. This would make it more understandable to both citizen and cop. This way, it would become bulletproof and the charges cops lay would stick like glue, which is the whole purpose of laying charges.

How much money are taxpayers wasting paying cops, administration, Crowns and Judges to deal with laws that cannot be enforced?

Meanwhile validly laid charges against citizens are being dismissed for delay because the courts are polluted with non-valid or meaningless cases.

In my view, each offence should also articulate what type of offence it is; mens rea, strict or absolute.

In my view, if a case is appealed the accused should be acquitted. If a law needs to be intrepreted by a court, then the law is not clearly written and citizens should not be subject to it. A citizen has a right to know the law beforehand, not after a court intrepret it. Once the court defines the law the next person becomes lawfully subject to it.

Laws are made for citizens, not cops, lawyers and courts. If an appeal is required, the citizen should have his costs paid to him in advance. This way, the cops would stop charging people for meaningless offences because the citizen is going to hire the best lawyer and, in many cases, the cop and province are going to be sued if they lose the case.

The HTA is over 80 years old, there is no excuse for it being such a mess.

lawmen wrote:The HTA is a complete mess. Many offences are duplicated, conflict, poorly written, ambiguous, unconstitutional and/or unenforceable. The HTA could be half the size it currently is. This would make it more understandable to both citizen and cop. This way, it would become bulletproof and the charges cops lay would stick like glue, which is the whole purpose of laying charges.

How much money are taxpayers wasting paying cops, administration, Crowns and Judges to deal with laws that cannot be enforced?

Can I write it.....

This one goes back about 15 years, when cell phones were not as common. We were travelling on a major highway, when a guy in an unmarked SUV, wearing civilian clothes, flashed some sort of a card and motioned for us to stop. The driver just kept on going. That brings me to question #1:

1) Let's say an unmarked cruiser is following my vehicle. All I see is a dark-coloured car coming up to me at a high rate of speed and following a bit too closely for comfort. Now, if I am on a motorcycle, I can just double-tap the shifter and get out of perceived harm's way. However, what if it turns out that the person was a constable, just reading my plates and I am charged with 216 (2)?

I have another one...

2) At times I travel at night and might even exceed the speed limit by about 15km/h. A couple of times, I would see a cruiser coming from the opposite direction pulling a u-turn behind me. Is making a legal turn into residential streets (and taking a less easily traceable route) before the constable has the chance to turn on his cherries viewed as a 216 violation?

Police have to be readily identifiable as such.....flashing red/blues activated.

Would not see how an unmarked, no uniform person with a wallet, showing some sort of badge would try to stop someone.

Oncoming cruiser and no lights on and uturns, again no requirement to stop.......if the cruiser activates lights approaching you there is a requirement to stop.

Thanks for the clarification, bear. As I said, in the last decade and change as a driver, I've seen all sorts of things on the road.

As for the other situation, it's good to know that my practice was not a violation of the h.t.a. or any other laws (not counting going a bit over the limit)

If he wants you to pull over he has to activate his lights as a warning to you.....

How else would you know?

But if you do try to evade and he eventually finds you, you might get some attitude and a bigger ticket.

Squishy wrote:But if you do try to evade and he eventually finds you, you might get some attitude and a bigger ticket.

True... although, big difference between simply making a left turn versus gunning it, popping a wheelie and signalling to the officer with the raised extension of the middle digit of either hand. Or slaloming through traffic at 140 km/h while mooning other motorists, like this guy:

Happened on the 400... of course...

Hahaha, Northern Ontarians. Here in Central Ontario we have the perfect mix of small-town values and insanity.

Squishy wrote:But if you do try to evade and he eventually finds you, you might get some attitude and a bigger ticket.

As long as he does not fabricate a charge (which is rare, but it does happen), I'm not really fishing for "reduced" tickets. Whether I'm going 5, 15 or 25 over, the insurance companies see a "conviction." Attitude doesn't really rattle me. All of that combined falls under "acceptable consequences" for a chance not to get ticketed. Straight-out running would pose risks that are unacceptable for anything short of 172 (and even then, I'd rather take my chances in court than risk my life/limb).