OHTA.ca

This is an e-mail I sent to the legislature today regarding street racing and the new Cell Phone legislation. There are links to the attachments so you can read where we are at right now:

This is another in my promised education program about environmental and other legislative subjects. Sorry for the long delay between issues but the in-bound volume and complexity of the issues required it. Since this is a provincial matter, no other province is being copied on it unless it turns out a need arises down the road.

The attachments are simple Word documents and contain no viruses or anything malicious. If you are afraid to open the attachments I will e-mail them as separate documents if you request or you can view them on line:

The attachments refer to the amendment to Section 172 of the Highway Traffic Act and the upcoming Cell Phone legislation. A copy of the letter to Wayne Arthur, my MPP can be obtained from his office.

I encourage you to read them all as there is different information in each and some of the information is too new to be in the book.

The information contained in these documents is as factual as a private citizen can make it. The issues do require more work on your part and my part.

I hope you understand that this work is not meant to target any one individual but it does illustrate the collective blunders your administration has committed and the fact that you allowed yourselves to be stampeded into a decision based on emotion rather than information. It may be that most of you have never heard of my book ABUSE OF POWER. I can't afford to send you all a free one. There are various MPPs who do have them courtesy of their constituents. You might be able to borrow a copy. If not you can e-mail me back and make arrangements to purchase one. Since you all voted to approve this legislation with few exceptions, you owe it to yourselves to understand the nature of the immense legislative damage you've caused. Not just to drivers but to every citizen of Ontario.

To most of you, this may be the first you've heard that the street racing legislation is so flawed it is illegal itself. That would not have been a surprise but for the fact that Global TV's producers botched the news feature they did on the subject. It was titled ONE YEAR LATER. Had that show been aired as advertised, we might be engaged in repairing the legislation by now.

While the intent to halt the crimes committed by street racers is laudable, the process you people used to accomplish your goal was poorly thought through and as time passes, the precedent set by the street racer legislation will negatively impact all other Ontario legislation. I believe the cumulative damage will be catastrophic unless steps are taken to correct the mistakes made.

I believe the Cell Phone legislation is at least in part a response to a chapter in my book. This legislation I will applaud if it is written properly.

Yours truly,

John Newell, Pickering

gully...the links don't work

October 31, 2008

John Newell,

Pickering, Ontario,

Mike Stafford,

AM640 Toronto Radio

1 Dundas Street West

Suite 1600

Toronto, Ontario

M5G 1Z3

Dear Mike,

I listened to your show about the coming Cell Phone legislation yesterday morning and thought it very interesting in light of the work Ive done recently with respect to the Highway Traffic Act, the street racing legislation and that cell phone legislation.

Ive mailed you the book I wrote in response to the street racing legislation since it has bearing as noted in the accompanying document about cell phones. People have told me you have voiced opposition to the street racing legislation as well. If so, then the book will more than solidify your argument. I have no idea whether you really stand by your comments or whether that was just part of putting up a good show.

Despite the jumble of the front cover the books full title is THE REBEL MACHINE IDENTITY – ABUSE OF POWER and was meant to be the final chapter in another book I wrote: STREET RACER. However the last chapter became a book in its own right that is an on-going work that will in fact include this letter in the next edition.

I tried to get it into Chapters/Indigo but the process was going to take a year or more so I self published it and sell it via mail order or at meetings and car shows.

The Paralegals have taken a huge interest in ABUSE OF POWER and have stolen a march on the lawyers. There is a lot of info in the book that would cost a fortune to have a lawyer research so the best route for anyone charged under Section 172 of the HTA is to hire a paralegal who has my book.

Theres lots more to be done on this issue because the law needs to be rewritten and re-enacted in order to make it legal which it is not right now. What that means is that the police have been stealing cars and extorting money since October, 1 2007. Even longer if you count what they did under the Civil Remedies Act. I believe they will have to give all the money back, pay for damages and overturn all of the illegally obtained convictions.

Another biggie is that I was surprised the media and the legal profession completely missed is that the street racing legislation entrenches racial discrimination against visible minorities and people a cop might just not like right into the Highway Traffic Act. We pride ourselves on being a multicultural society and then the government blindsides at least half of the GTAs population with a hands on method of destroying lives with no accountability. This is a clear violation of the entire intent of the Charter of Rights and Freedoms. It is one of the reasons why I maintain, the 2007 amendment to Section 172 is illegal and why the entire sitting Ontario Legislature needs to be held accountable by the public for this travesty.

Most people think that the Ontario government only denied one guaranteed civil right – Section 7. But that is far from the case. The amendment to Section 172 trashes almost all of the Charter of Rights and Freedoms. Following are a list of the sections that were denied by the sitting Ontario government when they passed the amendment to try and end street racing section by section:

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

8. Everyone has the right to be secure against unreasonable search or seizure.

9. Everyone has the right not to be arbitrarily detained or imprisoned.

10. Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.

11. Any person charged with an offence has the right:

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

(g) not to be found guilty on account of any act or omission unless, at the time of the act or omission, it constituted an offence under Canadian or international law or was criminal according to the general principles of law recognized by the community of nations;

(h) if finally acquitted of the offence, not to be tried for it again and, if finally found guilty and punished for the offence, not to be tried or punished for it again; and

12. Everyone has the right not to be subjected to any cruel and unusual treatment or punishment.

15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

Section 33.1 is explained in the book you can read it there.

There has been expressed on various talk shows an observation about the length of time its taking for one of these cases to reach the Supreme Court. One reason is that the Justices of the Peace are denying requests for the cases to be heard on a constitutional basis. They are all being dealt with as traffic offences. There is a rumour that there are lawyers who will mount a challenge. If so, I have not been able to identify them to make sure they have a copy of my research. You might be able to help in that respect.

When the Charter of Rights and Freedoms was enacted, it was enacted specifically to prevent future governments, federal and provincial from abusing their power. The extent to which the Ontario Legislature defied not just the Charter but also the Criminal Code of Canada is explained in ABUSE OF POWER. In doing so, they destabilized all of Ontarios existing legislation and sacrificed their credibility before the people. They have betrayed the electorate and that constitutes a Breach of Trust.

When you read the book, I would like you to pay particular attention to the role the police as a body have been forced to play, and then examine that in comparison with the role Commissioner Fantino has played and the use he has made of partial statistics to make his points to blow an admittedly photogenic but statistically minor issue way out of proportion.

I hope this interests you enough to help further publicize this issue. Its people like you who can make the difference. Its entirely pointless to investigate and write about government wrong-doing if the information never sees the light of day.

A hard copy of the book and this letter will follow by snail mail.

Yours truly,

John Newell

Cc: Ontario MPPs

ONTARIO CELL PHONE LEGISLATION

It will soon be illegal to drive while talking on a hand held cell phone in Ontario. Whenever a law like this gets passed, those in opposition come out of the woodwork. I thought Id clarify how I believe this law came to be passed.

The coming Cell Phone legislation is the legislative offspring of the 2007 anti-street racing legislation. This is a law that had to come because of my book – ABUSE OF POWER - explaining how street racing legislation is illegal and that the government committed criminal code offences to pass the law (which is still not really a legal law).

The first thing to be clear about is that this is not just a simple cash grab although it will certainly be that.

For years Ontario police have been trying to convince the public that "speed" causes accidents when anyone with a basic understanding of physics and an ounce of common sense knows this is not the case. Speed among other factors does determine the severity of an accident.

The fact is, accidents are caused approximately 80% of the time by inattention, distraction, medical conditions, and body chemistry. That number was arrived at first by my anecdotal research in 1998 by simply following what is reported by the media and was unknowingly confirmed by extensive research conducted by the insurance industry in the US and Canada.

It took me ten years of trying to get this information into the public forum. It still isnt being discussed in its entirety. The huge role diet plays in the death toll is still not on the table. Its one of those topics no one wants to know about. Too damned bad. Its going to come – mostly because its easy to monitor and easy to lay huge fines for non-compliance – easier, more effective and more reliable than trying to catch speeders.

While the police have been basically lying to the public about the real nature of accident causation and exacting onerous fines for same, the insurance industry just like the rest of us thought something was out of whack. Unlike the rest of us, they have the money, the resources and the motivation to ferret out the truth in exhaustive detail. We all know how insurance companies hate to pay out on claims.

Their research shows conclusively that the police are wrong and the insurance researchers are right. The manner in which the two entities collect the data is significant too and motivation plays a telling role in that as well. The police have no financial stake in determining cause. They want a quick solution to a problem so they can wrap up the case. Judging by the manner in which accident statistics are compiled and posted in the ORSAR charts, the police and the MTO statisticians are just as confused as anyone else as to what the numbers gathered by the police are supposed to mean. The idea behind the site is excellent; the execution of the work is dreadful and largely a waste of tax dollars.

The insurance people have plenty of time and resources to analyze accidents and the ability to apply the latest and greatest science and brain power to the job. Hire the best people, use the best equipment. Stop the financial bleeding.

If speed, including street racing was the prime or even a major cause of accidents no car or truck could be sold in Canada capable of speeds exceeding the speed limit. The insurance industry ended the muscle car era by itself. They could end the question of speed causing accidents in exactly the same way – raise premiums on the faster cars to the point where they could not be afforded by anyone.

In my book, I stated that by not telling the truth about the true causes of motor vehicle accidents, the government and particularly the OPP were and still are contributing to the death toll on our highways by ignoring the elephant in the room - that distraction in its various forms is the real cause of nearly all accidents, not speed. It's a myth that once exposed comes with a known-by date and the potential for criminal prosecution of elected officials and civil servants individually by members of the public – over and over again.

The known-date was established the day I gave a copy of ABUSE OF POWER to my MPP Wayne Arthurs. That date was Friday, September 26, 2008.

The importance of a known-by date according to the Criminal Code is this: before that date, an elected official or other civil servant can honestly claim they did not know that by their actions, they were committing or enabling the commission of a criminal code offence. Thus they are immune to criminal prosecution or civil suits by the public. After that date, they are legally required to know. Ignorance of the truth and reality is no protection and no excuse.

When a civil servant inadvertently commits or enables a crime in the course of doing their jobs, they can not be prosecuted for the offence. But once they know or should have known that they were committing a criminal code offence, they become personally liable for their actions and thus not entitled to have the government pay for their defence.

To leave the Cell Phone issue unattended to after receiving my book with its detailed and charted rendering of the facts would have exposed many members of the Ontario government to ruinous legal action at some point in the near future. Once one person was successfully charged, that same person any others connected to the crime can be charged or sued each time the crime occurs. That means elected officials can be charged and sued over and over again as different people are impacted by the crime.

At some point the public is going to wake up to the fact that public officials are not nearly as protected as we have been lead to believe. No one is above the law. The hurdle is to have the evidence cross the threshold of admissibility in a court of law. If the Cell Phone Law was not enacted, quite a lot of people in the Ontario government would have soon begun to feel like ducks in a shooting gallery.

The only real obstacle to laying criminal charges against elected officials and civil servants is the fact that the police routinely commit crimes themselves. One crime in particular: Obstruction of Justice. To lay charges you either need a police officer to lay them for you or you have to fill out the paperwork yourself and try to get a Justice of the Peace accept it. The odds are heavily stacked against this even when very serious crimes are committed. The police lie and say the issue is a civil matter. The fact is, Criminal Code offences are never civil matters. The police simply do not want to open that door. But I believe the public is fast losing its patience with governments and police and their casual attitude to the law. Change will come and the internet is going to be a huge factor and the real tool that will get the job done.

Make no mistake my book was not the only factor that caused this law. Lots of other people and groups were putting pressure on the government to act. But the book gave them powerful motivation to act or face dire personal consequences.

There is not one of you reading this who could have done differently under the circumstances than the Honourable Jim Bradley, Minister of Transportation, Ontario did. He had no choice. So to blabber about the Cell Phone Law being a tax grab is to ignore stark reality. The penalty has to be stiff enough to make people not want to commit the offence. That's why it's $500.00 and not $50.00.

Certainly there will be lots of opposition and bellyaching. I listened to the Mike Stafford show today on am640 and heard the complaints I expected: "Im a contractor. I do all my business on my cell. Or – People should be better trained as drivers so they can better multitask; Im a salesman – if I miss the call I lose the business."

All of them miss the most important point – when you are behind the wheel, you are there for one reason only – to move the vehicle and its contents from point A to point B without damage to vehicle, contents, other vehicles and their contents and other peoples lives or property. When you are behind the wheel, youre in a position of nearly sacred trust. That trust demands your full attention. Every other person or thing around you trusts you (without ever having met you) to do the right thing without compromise and without your betraying the trust. That is why a drivers license is a privilege not a right.

When you are behind the wheel regardless of your profession you are only one thing – a driver. You are not a contractor, you are not a movie star, you are not a doctor and you are in no way shape or form anything but a driver with a care of duty. If you want to be one of those other things, then you have to be those other things while the vehicle under your control is motionless and not impeding traffic.

A big part of the danger of hand held devices is the potential for something to go wrong when trying to answer what might be an important call. Fumbling around for the phone, dropping it, bumping it all tends to take attention away from the road ahead. This is more serious than the actual conversation because an in-vehicle panic situation has occurred that needs near instant resolution. Accidents happen when that resolution takes too long. This is not something that can be denied. Its not something where you can say, "Oh, Im good at it now, itll never happen again." The truth is it will happen at least once more.

The cell phone law does not ban cell phone conversations – just those conducted on a hand held device. You can still do your business hands free. I can tell you as a person who is deaf in one ear and having only limited hearing in the other, that hands free calls work fine. They are even more effective if you have a wireless such as Blue Tooth or similar forms of hands free technology. In the wake of this law the technology will get even better in a hurry. The inconvenience will not last.

On a personal note: am I perfect? Have I never committed this offence? Not by a long shot. I've talked while driving using both hands free and hand held. Hands free feels unnatural to me. But hands free's unnatural feel seems a small trade-off to the feel of the silk lining in a coffin - mine or a potential victim's.

All of them miss the most important point – when you are behind the wheel, you are there for one reason only – to move the vehicle and its contents from point A to point B without damage to vehicle, contents, other vehicles and their contents and other peoples lives or property.

You have to wonder why it has gotten to the point where people have such a laissez-faire attitude about driving. Driving has now become, as I think Lorraine Sommerfield said, "something you do while you're doing something else." Ottawa saw a spike in traffic fatalities last year, and the Ottawa Police put the blame squarely on just that: Too many people yakking on cellphones and not paying attention to the road.

Finally they've introduced a law that will improve traffic safety. A lot of people have wanted this for a long, long time.

hwybear wrote:gully...the links don't work

Writing letters are great, but a waste of time if you aren't going to include the proper request. If someone really wants to change the law, this is what they need to do.

Write Premier McGuilty and point out the legal flaws in the provision. Respectfully demand that he instruct the Lieutenant Governor in Council to file a constitutional challenge of the law with the Supreme Court of Canada (SCC). The government has direct access to the SCC while a citizen does not. Request the court issue an immediate ruling and provide its written reasons at a later date. Given the public interest and importance of this matter, give the government a deadline to file the challenge, say 2 weeks.

If the government does not file the challenge within the 2 week period, you can then file an application in the ordinary court for a writ of mandamus. The application would request the court order the government to fulfill their obligation to challenge the law based upon the flaws you set out. You can request standing in the SCC challenge to ensure your points are argued. The application filing fees are $180.

Alternatively, anyone can challenge the constitutionality of the law by filing a notice of constitutional question in the court in your city. This is entirely free. There are no filing fees. You can represent yourself for free, as well. Use form F4. You can request costs, too. You can even file a motion after filing your challenge and request costs be paid in advance, but it doesn't mean the court has to order the government to pay your costs in advance.

You must serve the Attorney General of Canada and Ontario. Your case will be heard within weeks. Chances are, Attorney Generals from all provinces and territories will intervene. The court must decide your issues and cannot refuse to hear it. They must issue detailed reasons for their decisions. They must address each legal issue you raise. The decisions can be appealed by either side, you or the government.

Bear in mind, you are starting at the lowest court level and appeals reaching the SCC take up to 6 or 7 years.

Bottom line, however, is that anyone who challenges this law is going to win because it is fatally flawed and unconstitutional.

Gully, well written! Only one sentence that irks me out of both letters, but not going there!

Gully and Law should both get together, Gully has the explanations and Law can stick handle thru the legal jumble!

Cheers

Bear

Yeah but, A GULLY/LAW post might crash the site...........

Just having a little fun........keep up the research boys.

I'm going to try exactly what you said lawmen and see how that goes. I'll get back to you in seven years when it starts to itch.

Your post is the first time I've ever seen the problem of opposing a legal situtation stated in a manner that is possible for an ordinary citizen to act on and I plan to take full advantage of it.

Thank you very much.

Hwybear may be right. Together we could crash this site - or if not that maybe the legislature.

Street racing is far from the only government crimes I'm investigating and your advice is going to help in a multitude of ways. You may have unleashed a monster...

It is a public interest, thus you do not have to currently be facing charges under the section youre challenging. You do not have to be seeking a remedy under s. 24 of the Charter. You are challenging the constitutionally of the law. Call the Registrar at your local courthouse and they will confirm for you that there are no filing fees.

See s. 109 of the Courts of Justice Act regarding constitutional questions. Its form 4F when you file. If someone can fill out a credit card application, theyre capable of filling out this form.

However, start by writing McGuilty and requesting the government challenge the law, because this route would be much quicker.

The Supreme Court does have a special kind of "reference" jurisdiction, original in character, given by s. 53 of the Supreme Court Act. The Governor-in-Council may refer to the Court, for its opinion, important questions of law or fact concerning the interpretation of the Constitution, the constitutionality or interpretation of any federal or provincial legislation, or the powers of Parliament or of the provincial legislatures or their respective governments or any other important question of law or fact concerning any matter. Where the government of any province has any special interest in any question put in reference, the Attorney General of the province shall be notified in order that he or she may be heard.

References by Governor in Council

Referring certain questions for opinion

53. (1) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning

(a) the interpretation of the Constitution Acts;

(b) the constitutionality or interpretation of any federal or provincial legislation;

(c) the appellate jurisdiction respecting educational matters, by the Constitution Act, 1867, or by any other Act or law vested in the Governor in Council; or

(d) the powers of the Parliament of Canada, or of the legislatures of the provinces, or of the respective governments thereof, whether or not the particular power in question has been or is proposed to be exercised.

Other questions

(2) The Governor in Council may refer to the Court for hearing and consideration important questions of law or fact concerning any matter, whether or not in the opinion of the Court ejusdem generis with the enumerations contained in subsection (1), with reference to which the Governor in Council sees fit to submit any such question.

Questions deemed important

(3) Any question concerning any of the matters mentioned in subsections (1) and (2), and referred to the Court by the Governor in Council, shall be conclusively deemed to be an important question.

Opinion of Court

(4) Where a reference is made to the Court under subsection (1) or (2), it is the duty of the Court to hear and consider it and to answer each question so referred, and the Court shall certify to the Governor in Council, for his information, its opinion on each question, with the reasons for each answer, and the opinion shall be pronounced in like manner as in the case of a judgment on an appeal to the Court, and any judges who differ from the opinion of the majority shall in like manner certify their opinions and their reasons.

Notice to be given to provinces interested

(5) Where the question relates to the constitutional validity of any Act passed by the legislature of any province, or of any provision in any such Act, or in case, for any reason, the government of any province has any special interest in any such question, the attorney general of the province shall be notified of the hearing in order that the attorney general may be heard if he thinks fit.

Notice to interested persons

(6) The Court has power to direct that any person interested or, where there is a class of persons interested, any one or more persons as representatives of that class shall be notified of the hearing on any reference under this section, and those persons are entitled to be heard thereon.

Appointment of counsel by Court

(7) The Court may, in its discretion, request any counsel to argue the case with respect to any interest that is affected and with respect to which counsel does not appear, and the reasonable expenses thereby occasioned may be paid by the Minister of Finance out of any moneys appropriated by Parliament for expenses of litigation.

I just copied and reformatted your posts onto a single page, printed it an stuck it to the side of my computer.

Wind me up, point me in the right direction and watch me go...

I just amended my last message and added s. 53 from the Supreme Court Act.

The Supreme Court of Canada also developed the concept of public interest standing in three constitutional cases commonly called "the Standing trilogy":

Thorson v. Canada (Attorney General),

Nova Scotia Board of Censors v. McNeil,

Minister of Justice v. Borowski.

The trilogy was summarized as follows in Canadian Council of Churches v. Canada (Minister of Employment and Immigration):

109.(1)Notice of a constitutional question shall be served on the Attorney General of Canada and the Attorney General of Ontario in the following circumstances:

1. The constitutional validity or constitutional applicability of an Act of the Parliament of Canada or the Legislature, of a regulation or by-law made under such an Act or of a rule of common law is in question.

2. A remedy is claimed under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada or the Government of Ontario.

Failure to give notice

(2)If a party fails to give notice in accordance with this section, the Act, regulation, by-law or rule of common law shall not be adjudged to be invalid or inapplicable, or the remedy shall not be granted, as the case may be.

Form of notice

(2.1)The notice shall be in the form provided for by the rules of court or, in the case of a proceeding before a board or tribunal, in a substantially similar form.

Time of notice

(2.2)The notice shall be served as soon as the circumstances requiring it become known and, in any event, at least fifteen days before the day on which the question is to be argued, unless the court orders otherwise. 1994, c. 12, s. 42 (1).

Notice of appeal

(3)Where the Attorney General of Canada and the Attorney General of Ontario are entitled to notice under subsection (1), they are entitled to notice of any appeal in respect of the constitutional question.

Right of Attorneys General to be heard

(4)Where the Attorney General of Canada or the Attorney General of Ontario is entitled to notice under this section, he or she is entitled to adduce evidence and make submissions to the court in respect of the constitutional question.

Right of Attorneys General to appeal

(5)Where the Attorney General of Canada or the Attorney General of Ontario makes submissions under subsection (4), he or she shall be deemed to be a party to the proceeding for the purpose of any appeal in respect of the constitutional question. R.S.O. 1990, c. C.43, s. 109 (3-5).

Boards and tribunals

(6)This section applies to proceedings before boards and tribunals as well as to court proceedings. 1994, c. 12, s. 42 (2).

FORM 4F

Courts of Justice Act

NOTICE OF CONSTITUTIONAL QUESTION

(General heading)

NOTICE OF CONSTITUTIONAL QUESTION

The (identify party) intends to question the constitutional validity (or applicability) of (identify the particular legislative provisions or the particular rule of common law) (or to claim a remedy under subsection 24 (1) of the Canadian Charter of Rights and Freedoms in relation to an act or omission of the Government of Canada (or Ontario)).

The question is to be argued on (day), (date), at (time), at (address of court house).

The following are the material facts giving rise to the constitutional question: (Set out concisely the material facts that relate to the constitutional question. Where appropriate, attach pleadings or reasons for decision.)

The following is the legal basis for the constitutional question: (Set out concisely the legal basis for each question, identifying the nature of the constitutional principles to be argued.)

Date

(Name, address and telephone number of solicitor or party)

TO

The Attorney General of Ontario (as required by

section 109 of the Courts of Justice Act)

Constitutional Law Branch

4th floor

720 Bay Street

Toronto, Ontario M5G 2K1

fax: (416) 326-4015

The Attorney General of Canada (as required by

section 109 of the Courts of Justice Act)

Suite 3400, Exchange Tower

Box 36, First Canadian Place

Toronto, Ontario M5X 1K6

fax: (416) 973-3004

(or Justice Building

239 Wellington Street

Ottawa, Ontario K1A 0H8

fax: (613) 954-1920)

(Names and addresses of solicitors

for all other parties and of all

other parties acting in person)

(This notice must be served as soon as the circumstances requiring it become known and, in any event, at least 15 days before the question is to be argued, unless the court orders otherwise.)