Ontario stunt driving law called unconstitutional

[lesabre400]

as long as you're an elderly woman driving an Audi.

Since this is my first post, I can't put up the links. So go to thestar.com and nationalpost.com and look up "Ontario stunt driving law called unconstitutional"

[superdaveosbourne]

According to James Morton:
http://jmortonmusings.blogspot.com/2...itutional.html

Tuesday, September 8, 2009
Stunt racing law found unconstitutional
Friday's (September 4) decision from Napanee from Ontario Court of Justice Judge G J Griffin in R v Raham, 2009 ONCJ 403 holds the stunt racing by excessive speed law to be unconstitutional. This decision has been eagerly awaited.

The decision is unreported and I do not have an electronic copy -- I have a rather poor photocopy and that was not easy to obtain -- and so I will describe the decision in some detail.

The decision is clear stunt driving by excessive speed contrary to s 172(1) of the Highway Traffic Act and O Reg 455/07 fails.

The reasoning is that the excessive speed section of the definition of stunt (the 50 km/hr over the speed limit) is an absolute liability offence. No mental element is required to find guilt and no due diligence defence will avoid guilt. This conclusion, which differs from many Justice of the Peace decisions, is based largely on the language of O Reg 455/07 which refers to intention in regarding several ways a stunt can occur but not with regard to speed.

Considering a possible due diligence defence the Court held any such defence was implausible and that suggested absolute liability.

In other cases speeding, in the sense of breaking the speed limit, has been found to be an absolute liability offence.

The Court reviewed the traditional tests to distinguish absolute and strict liability and found stunt driving by excessive speed to be absolute liability.

The Court noted that the provision in question, while called stunt driving and punished potentially by jail, might more properly be called driving at extremely excessive speed. In effect the offence was one of super speeding.

As a matter of constitutional law, an absolute liability offence tied to a potential prison sentence breaches s 7 of the Charter. The principles of fundamental justice forbid imprisonment without some mental element -- some wrongful mens rea, even if limited to being able to avoid conviction by showing due diligence.

Here the Court, noting that stunt driving can lead to jail time, found a breach of s 7 of the Charter.

Surprisingly, perhaps, the Crown acknowledged that if there was a breach of s 7 of the Charter such breach could not be saved by s 1 of the Charter.

Hence, the stunt driving law, as to speed, fails.

On to the Court of Appeal!!!
James Morton

And here's CTV's take on it: http://toronto.ctv.ca/servlet/an/plocal ... ntoNewHome