OHTA.ca

Hello All,

Im new to the forum and found it by doing some research on a topic some friends and I have been discussing.

None of us have been charged, it just came up.

As the title states, it has to do with the stunt driving penalties being unconstitutional.

Specifically your vehicle being impounded and your lisence being suspended on the spot.

So Ill start with the charter of rights and freedoms

S 8.

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

S 11d.

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

S 11g.

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

To make this as short as possible, Stunt driving is under the HTA (provinical law) and according to our charter of rights and freedoms, we are not to be found guilty on account of any act unless its an offence under Canadian law. So with that said, under provincial law, we cannot be found guilty at the time of the act.

Therefore, when a persons vehicle gets impounded and license suspended, they are being punished (presumed guilty) before any lawful hearing, which is unconstitutional.

I am really interested to hear what other peoples thoughts are on this topic

Thanks

You aren't the only one to raise questions about the way people are charged with regard to street racing. It's been a hot topic throughout the years and there's quite a bit of case law regarding this topic.

Rulings have gone back and forth for each side. As it stands now, it's perfectly legal to impound a vehicle on the spot. Although if it's any consolation, i'd agree with your position.

You are forgetting Section 1 of the Charter:

The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

It basically means that in Canada your rights are not absolute. If the government can demonstrate to a court that it needs to place a reasonable limit on your rights the court will accept the breach of your rights. The government with your own money (and the tax dollars of everyone else) will argue that there is a public need to control street racing by having harsh penalties take place before it can be judicially reviewed. You will argue with your limited financial resources that the violation is not a reasonable limit.

Bottom line is do you really want to live in a country where a police officer is empowered to be judge, jury and executioner? What if the officer made an honest mistake in identifying the speeding vehicle?

I personally think that a strong charter challenge against some of these laws would succeed. The big problem I see is that the time and expense of launching one of the challenges would be significant. It wouldn't help someone who's had their car impounded get it back any faster (the Court process could take years) and the average person doesn't have unlimited funds to fight something simply on principle.

I personally have a bigger issue with the vehicle impoundment versus actual licence suspension. While I disagree with the length of the suspension, I do see some benefit to immediate roadside suspensions, especially for drivers under the influence of alcohol. Does speeding fall under the same category? I'd argue no, but I wouldn't want to see roadside suspensions completely eliminated.

Hello All,

Thanks for your replies.

Street racing and stunt driving are laws on 2 different levels.

Street racing (in a contest on public highways) is a sub section under dangerous driving in the Criminal Code - Canadian Law

Stunt driving is in the Ontario Highway Traffic Act - Provincial law

So that bring me back to the Charter S.11g

Street racing is constituted as an offence under Canadian law; making siezure on the spot justified

Stunt driving is not constituted as an offence under Canadian law, only the province of Ontario; making siezure a violation of a Charter right

And as far as I know, if any provincial law conflicts with a section of Canadian law, Canadian law supersedes it. I think thats going back to the British-North America Act

As for section 1 of the Charter, I would focus on the "prescribed by law as can be demonstrably justified". And I understand that, but I see that as Canadian law - as in the Criminal Code. If its precribed as justified law Canda wide, then it can be a written law that infringes on a right when necessary.

But for a province to set laws to which its penalties violate a Charter right, I dont think section 1 covers that. - In my opinion

I am pretty sure driving under the influence is Criminal Code, which would be a justified siezure.

But now that I think about it, according to Criminal Code, is driving under the influence 0.08 BAC or 0.05 BAC

Because I know it was lowered to 0.05 and you get a lesser penalty, but is that Canadian law or Ontario law? If its Ontario law, maybe that 0.05-0.08 suspension is a violation of S.11g too.

Im not 100% sure what the charge is and what the immediate penalties are, but maybe thats worth looking in to. But Im not a fan of drinking and driving, so I wouldnt have the same fight to give that argument

I think some roadside siezures are necessary, just not the ones that violate a Charter right.

I believe if you've violated a section of criminal code (street racing/drinking and driving) then S.11g doesnt apply and you can be assumed guilty on the spot; any other situation I believe is a huge violation.

And to what "ynotp" said

Bottom line is do you really want to live in a country where a police officer is empowered to be judge, jury and executioner? What if the officer made an honest mistake in identifying the speeding vehicle?

This is what Im affraid of and that is what I see happening with this.

The Charter applies to both the federal and provincial governments, their agents and any institution they control (municipal governments, police, border guards, prisons, schools, etc.). It can apply to governments actions (laws, decrees, arrests, policies) and even policies of inaction.

S.11g just means that you cannot be found guilty of a law that did not exist at the time you committed the action you are being tried for. So if it were to become illegal to get a tattoo tomorrow and you got one yesterday you could not be charged let alone found guilty. Canadian law means both federal and provincial laws.

The federal and provincial governments are sovereign to one another meaning that the are assigned specific powers by the constitution and cannot legislate in an area outside of their jurisdiction. Criminal law in Canada is exclusively federal, while the laws mandating road regulations are exclusively provincial. Sometimes criminal law can apply something you do while operating a motor vehicle because it has been designated a crime in the criminal code. Both the criminal code and HTA are both always are subject to the constitution and judicial review.

Most constitutional challenges are well funded, usually by corporations or rich white men (who are so marginalized in our society that it is a good thing the Charter is there to protect them).

My guess is that the prosecutors know that the stunt driving laws may not survive a constitutional challenge and seem to be willing to reduce the charge to speeding in a good number of cases in exchange for guilty pleas. This way the law is a lot less likely to be challenged.

I personally feel that unless there is imminent danger there is no need for instant suspensions and seizures and that if a person is found guilty at trial the penalties should be imposed at that point that take into account the personal resources of the accused.