more on stunt driving

[thgear]

http://www.thestar.com/news/ontario/...ng-ruling?bn=1

UPDATED:::


The Ontario Court of Appeal on Thursday overturned a lower court ruling that found the province's 2007 stunt racing law was unconstitutional, and ordered a new trial for an Oakville woman.

The problem for the court is a provision in the law that includes a penalty of up to six months in jail, in addition to fines ranging from $2,000 to $10,000, the seizure of the vehicle and a licence suspension of up to two years after a first conviction.

“The stunt driving provision provides for the potential of incarceration, the speeding provision does not,” wrote Justice David Doherty for the three-judges on the Court of Appeal.

“This distinction is constitutionally significant. The Legislature cannot ... imprison without fault.”

The Crown had appealed after Justice Geoffrey Griffin of the Ontario Court of Justice in Napanee overturned the guilty verdict against Jane Raham, 62, last September.

The grandmother of four was charged in April 2008 with travelling at 131 km/h in an 80 km/h zone, which brought an automatic conviction for stunt driving.

The provincial law labels 50 km/h or more over the posted speed limit as stunt driving, which means much more severe penalties than a normal speeding charge.

Raham had testified she sped up to pass a large truck on Highway 7 as she was driving home from the Ottawa area.

“I did, out of a sort of fear reaction, pick up speed to get past him,” she told the court.

Judge Griffin overturned her conviction last fall, saying the way stunt driving is classified means once the offence is proven by facts, it cannot be defended.

“If one were to describe a stunt driver, the appellant would not immediately spring to mind,'' the judge wrote in his ruling.

However, the Court of Appeal ruled Griffin erred in finding the law unconstitutional because it requires no criminal intent when speeding.

“Fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised,” wrote Justice Doherty.

A due diligence defence on the stunt driving charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence.

“I am pleased with today’s decision by the Ontario Court of Appeal that upheld the constitutionality of the street racing provisions,” said Attorney General Chris Bentley in a statement.

“I would like to thank the Crowns and police who work hard every day to keep our roads safe.”

Raham who has 60 days to appeal the Court of Appeal's ruling overturning her acquittal, wasn't the only one to convince a court the stunt driving law was unfair.

A Newmarket judge dismissed stunt driving charges last fall against Alexandra Drutz, an 18-year-old woman charged with going 157 km/h on Highway 407 north of Toronto.

Justice Peter West ruled that having a potential penalty of up to six months in jail for driving 50 km/h over the posted limit violates the Charter of Rights because the law does not allow the accused to present a defence.

[oldguy]

http://spda-online.ca/modules/newbb/...forumpost39396

[SmokeScreen]

, Okay, lets say this law really is about safety. Does the accused still not have the right of innocent until proven guilty? I realize this is a POA charge but really,it is a major deal for the accused. this law is nothing more than a total load of large male bovine excrement!
I say we pass a new law as citizens, when we see a politician or a law enforcement officer lying, about to tell a lie or breaking the law we are allowed to tie them to a utility pole and beat them with a lenght of rubber hose of a diameter no larger than 1" or 25.4 mm and a length no greater than 3" or 914.4 mm.

[thgear]

Edit:

The article has been updated

[thgear]

can someone help decode this for me?

usually i'm okay with legalease but i think some key sentence is missing here.

However, the Court of Appeal ruled Griffin erred in finding the law unconstitutional because it requires no criminal intent when speeding.

[SmokeScreen]

The way I understand it, speeding as well as many other traffic offences are strict liabilty, which means no intention of commiting the ofence is required to be guilty. An absolute liability crime, such as first degree murder requires the Clown to prove you intended to kill. Now acording to our Charter of Rights, we cannot be sent to prison for a strict liability offence, the second appeal judge is saying a prison term is not in the law for 50 kph over the limit, only for the "stunt" portion. But according to them it is still a-okay to have your licence suspened and property siezed without trial with only the testimony or opinion of an officer.

[thgear]

but.. it is my understanding that the new law makes going over 50km a stunt crime!

how can the two possibly be seperated given the existence of the law as is.

[SmokeScreen]

Well it seems even an appeals court judge thought the same. It may be a case that they (the Clown, excuse me Crown) are trying to sneak this exclusion in to avoid the entire law being tossed as is. In its current wording there is no obvious distinction as far as punishment is concerned between going 50 over the limit and carrying a person in your trunk while towing a toboggan with passengers and making a left turn on a red while racing another person doing the same.

[SmokeScreen]

Originally Posted by SmokeScreen

, Okay, lets say this law really is about safety. Does the accused still not have the right of innocent until proven guilty? I realize this is a POA charge but really,it is a major deal for the accused. this law is nothing more than a total load of large male bovine excrement!
I say we pass a new law as citizens, when we see a politician or a law enforcement officer lying, about to tell a lie or breaking the law we are allowed to tie them to a utility pole and beat them with a lenght of rubber hose of a diameter no larger than 1" or 25.4 mm and a length no greater than 3" or 914.4 mm.

After calming somewhat, I realize that my remarks were too harsh, I am willing to reduce the diameter of the beating hose to 3/4" or 19.05 mm.

[feds]

Originally Posted by SmokeScreen

After calming somewhat, I realize that my remarks were too harsh, I am willing to reduce the diameter of the beating hose to 3/4" or 19.05 mm.

This kind of sober second thought is exactly why we have a Senate.

[George]

Originally Posted by SmokeScreen

...An absolute liability crime, such as first degree murder requires the Clown to prove you intended to kill.

Murder is not absolute liability.

Strict liability and absolute liability are very close to the same thing in practice but in Canada the terms are not quite interchangeable.

Absolute liability means there is no defence available.

Strict liability means that a very limited defence is available and it's primarily due diligence.

I think due diligence might actually fail in this case though because she was not obliged to pass the truck for any significant reason and particularly not if she had to go 50 over to do it - due diligence is more like you took all reasonable precautions but still got screwed by the law.

[George]

Originally Posted by thgear

can someone help decode this for me?

It means that the court of appeal hasn't done her any favors - she should actually appeal their decision because if it goes back to trial a lower court judge will have got the word on how the OCA feels about it and might be reluctant to send it round again on the same argument. But then justice costs money so it depends how fast you want to go..lol

It would be interesting to see facta from opposing counsel on this - you should look it up on the innernets and let us know what you find.

[aviography]

Originally Posted by SmokeScreen

a length no greater than 3" or 914.4 mm.

3"? That's 76.2mm.

[SmokeScreen]

Originally Posted by aviography

3"? That's 76.2mm.

You're right, what the was I thinking.

[Doug P]

Originally Posted by aviography

3"? That's 76.2mm.

Geek!