The government is appealing the decision. Being the leading expert on this law and the Greatest Canadian, I was thinking of intervening in the case Amicus Curiae, but I don't think I have time.
I'm proud to be the first person to state speeding was a absolute liabity offence and a term of imprisonment attached to the offence made it unconstiutional.
Police can still use "drive a motor vehicle at a marked departure from the lawful rate of speed" to charge a driver under s. 172 who is going 50 km/h or more over the limit, however, this provision is also not enforcable as the definition of marked departure is to vague.
“marked departure from the lawful rate of speed” means a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway."
A person must know what the law is in advance so they may conduct themselves accordingly.
The regulation definition provides no guidance to anyone.
There are 10,000 cops in Ontario and each cop would have their own meaning of what the definition is, since it's sooo vague.
Moreover, the HTA states any person may arrest a person committing a s. 172 offence on view. There are 10 million adults in Ontario who are capable of making the arrest on view, thus, there could be 10 million definitions of what a marked departure from the lawful rate of speed is and how it may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway.
This is a violation of s. 12 of the Charter, since it is unusal treatment to have more than one legal definition that is arbitrarily imposed, ecspecially when you're facing a prison term. This s. 12 breach is not saved by s. 1 of the charter.
The licence suspension will not stick. The entire s. 172 provision is bunk and WILL be required to be rewritten or scrapped entirely. Most of s. 172 and its regulation are mens rea, thus this one provision has absolute, strict and mens rea offences all rolled into one. This is not proper, or legal.
You mention that there is no recourse or due process of law to deal with the licence suspension. This is not really true. Yes it's true the government refuses to enforce its own law but the HTA provides for appeals.
The Minister of Transportation must have express authority to do anything under the HTA. Under s. 2 to 4 the Minister delagates his power to the Registrar and the Registrar delagates his power to the street cop.
The Minister must have express power under the HTA to suspend a licence.
The licence is suspended under HTA s. 47.
All licence suspension under s. 47 are appealable to the Licence Appeal Tribunal under s. 50. Any unfavourable decision of the Tribunal is than appealable to a judge of the Superior Court of Justice, under s. 50(3).
However the Tribunal is unlawfully refusing to to hear suspension appeals and they WILL have to answer to this breach of law as some point in time.
The HTA does not have a privative clause.
Thus when certain matters are not covered by the HTA the ordinary court has jurisdiction. When the HTA articulates that one must appeal to the Tribunal, such as a licence suspension under s. 46 or 172, than the Tribunal has sole and exclusive jurisdiction over the subject matter and the cout has none, other than to review the decision of the tribunal.
Another error of law in s. 172 is where s. 172 (13) claims you can file a proceeding in the ordinary court over the suspension.
No appeal or hearing
(13) There is no appeal from, or right to be heard before, a vehicle detention, driver’s licence suspension
or vehicle impoundment under subsection (5), (6) or (7), but this subsection does not affect the taking of any proceeding in court.
As I just mentioned, the court has no jurisdiction to hear the matter as s. 50 articulates that the Licence Appeal Tribunal has jurisdiction over ALL licence suspensions.
The reason the Tribunal is refusing to hear cases though, is because the cop must have reasonable and probable grounds to lay a s. 172 charge and suspend a licence.
The licence suspension is an Administrative suspension under Administrative law. Reasonable and probable grounds bears an onus on proof and standard of proof. Both lie upon the government and never shift to the accused. The standard of proof is beyond a reasoanble doubt.
Administrative law does not have jurisdiction to deal with reasonable doubt. Administrative law only deals with correctness. Thus despite s. 50 declaring you MUST appeal to the Tribunal, the Tribunal lacks the jurisdiction to hear the appeal.
The reason the licence suspension occurs on the spot is because the government treats s. 172 as a absolute liability offence where no defence is permitted by the accused. Now that this hasn't worked out for the government the government now claims the offence is one of stirct liability. Strict liabilty provides the accused a Due Diligence defence. But a Due Diligence is also beyond the scope and jurisdiction of the Tribunal to decide, so they still can't hear the licence suspension appeal as required by s. 50 because they lack the jurisdiction to determine each licence suspension case.
There is not one part of s. 172 that even makes any sense to anyone with a IQ in the positive.
Moreover, s. 50 (3.2) articulates that filing an appeal under s. 3.1 does not stay the suspension, however, a licence suspension is appealable under s. 3, not 3.2, and the HTA makes no mention under s. 3 that when you file an appeal the suspension is not stayed, thus when you do file an appeal the suspension IS
stayed. But by the time you appeal the Tribunal decision (if they'd give you one as required by law) the licence suspension is already over.
Remember, that murderer Michael Bryant along with Dalton McGuilty and Fantino created this law and all of them are aware that our legal rights are being walked over and denied.
Under HTA s. 31, driving in Ontario is privilege not a right. To drive one requires a driver's licence. Driving is not charter protected. To acquire a licence one must meet the medical requirements, pass a written and road test, and pay a fee. Once you acquire a driver's licence it becomes charter protected under s. 7 and the licence can only be canceled or suspended in accordance with the principles of fundamental justice. In Canada, fundamental justice includes natural justice, due process and more. All of which is being unlawfully denied to our citizens.
Driving isn't just a hobby or pleasurable pass time. Most people require a licence for work, to get to the grocery store, to pay bills, to take their kids to school and to get to the doctors. These matters are not a privilege, they are a necessity of life for the security of the person.
Not everyone in every Ontario city or town has access to subways, streetcars, bus service or taxis. This is why a licence becomes Charter protected once acquired.
Watching Bryant goes up in smoke is something I'm really enjoying.
Sadly, when the class action lawsuit against the province is eventually filed and won, it will be you and I the taxpayers who is required to reimburse all those who have been unlawfully forced to pay towing, storages, fines, legal fees, lost wages, jobs and encurred other transportation costs, etc. We will also have to pay them interest on any monies they've spent and they are ALL entitled to further damages as their charter rights were infringed by the government and its braindead agents, i.e., the police.
Radar Identified wrote:
It's all over the news now. The ruling basically said that, indeed, speeding, no matter by how much, is an absolute liability offence and cannot have the possibility of imprisonment, therefore the inclusion of a specific speeding offence in O.Reg 455/07 violates section 7 of the Charter of Rights and Freedoms.
Police can still seize and impound cars and suspend licences at the roadside, however now that it has been established that 50 km/h over cannot be "stunt driving" in and of itself, using that specific provision to tow the car would be wrongful prosecution. Police can still use, for example, "drive a motor vehicle at a marked departure from the lawful rate of speed" to charge a driver under s. 172 who is going 50 km/h or more over the limit.
However, I think the door is now WIDE open for challenges to the property seizure provisions. This is especially the case since, right now, there is no "show cause," no recourse, no due process, etc., and the defendant, per the idea of strict liability, is entitled to defence of due diligence - which can't happen if the penalty is imposed up-front. An administrative licence suspension might stick, though. Time will tell...
Note: s. 47.1 is not relevant to a licence suspension.
http://www.e-laws.gov.on.ca/html/statut ... e.htm#BK81
Suspension and cancellation of licence, etc., general
Subject to section 47.1, the Registrar may suspend
(a) the plate portion of a permit as defined in Part II;
(b) a driver’s licence;
(c) a CVOR certificate,
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
50. (1) Every person aggrieved by a decision of the Minister made under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
2002, c. 18, Sched. P, s. 17.
Powers of Tribunal
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or Registrar. R.S.O. 1990, c. H.8, s. 50 (2); 1999, c. 12, Sched. G, s. 24 (6).
Appeal to judge
(3) Every person aggrieved by a decision of the Tribunal with respect to a decision of the Minister under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under clause 47 (1) (b) may, within 30 days after a notice of the decision is sent to the person’s latest address as recorded with the Tribunal, appeal the decision of the Tribunal to a judge of the Superior Court of Justice.
Appeal to Divisional Court
(3.1) Every person aggrieved by a decision of the Tribunal with respect to a decision of the Registrar under section 17 or 47, other than a decision under clause 47 (1) (b),
may, within 30 days after a notice of the decision is sent to the person’s latest address as recorded with the Tribunal, appeal the decision of the Tribunal to the Divisional Court. 2001, c. 9, Sched. O, s. 6 (2).
Decision not stayed
(3.2) Despite the Statutory Powers Procedure Act, the filing of an appeal under subsection (3.1) does not stay the decision of the Tribunal being appealed, unless the Divisional Court orders a stay.
Powers of judge
(4) The judge may confirm, modify or set aside the decision of the Tribunal. R.S.O. 1990, c. H.8, s. 50 (4); 1999, c. 12, Sched. G, s. 24 (8).