Second Judge... 172 Unconstitutional
Second judge rules "speed" portion of 172 unconstitutional:
http://www.thestar.com/news/gta/crime/s ... racing-law
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.
