Exactly why this law is GARBAGE Another OPP SGT abusing his power, this is the second OPP SGT charged this month with serious charges, both are suspended with PAY, while awaiting their day in court. I hope the VICTIMS of this crooked cops abuse, seek legal counsel, and sue the a$$ off the Province and the good ole SGT himself! OPP Officer Charged For Allegedly Falsifying Traffic Stops Friday May 29, 2009 CityNews.ca Staff The OPP have arrested and suspended one of their own, after an officer was accused of laying charges against three different drivers for speeding or violating the new street racing law based on false evidence. One was accused of exceeding the posted limit, while the other two were alleged to have violated the province's street racing law and had their licences suspended and their cars temporarily seized. The OPP Professional Standards Bureau won't say how they came across the accusations but admits all charges against the trio have since been withdrawn. Insp. Dave Ross won't say what the motive might have been. The allegations make other stops Sgt. Dennis Mahoney-Bruer may have been involved with suspect as well and a review of all his past cases is underway. Ross tells CityNews.ca that could keep investigators busy for a while - as many as 200 provincial cases and 50 criminal cases are being given a second look. The 49-year-old cop has been a member of the force for 12 years and is based in Port Credit. His primary patrol area is the QEW and Highway 403. The accused has been suspended from duty with pay and will appear in a Brampton court on July 13th. He's charged with three counts of breach of trust and one of obstructing justice. Commissioner Julian Fantino, often cited as a 'cop's cop,' is disappointed by the outcome but says it's vital the public knows he won't stand for anything untoward in the ranks. "It was important for the OPP to initiate an immediate investigation and a comprehensive review, with the intent to bolster safeguards, to prevent similar situations in the future," he notes in a statement. "I believe that the public trust is a fundamental cornerstone of the OPP and policing." If you think you were unfairly stopped by this officer and have a complaint to make, call (905) 278-6131. http://www.citynews.ca/news/news_34954.aspx And then there is this feel good article! When Jason Stainthorpe was caught speeding on his way to church last Sunday, he figured the worst he was facing was a hefty ticket and some heat from his fiancee for being late. Instead, he wound up stranded by the side of the highway, desperately trying to figure out how to tell her he'd just lost his licence and her SUV for a week, faced a fine that could run into the thousands and might no longer be able to afford his auto insurance. He didn't realize it at the time, but doing 50 over the speed limit – 150 km/h on a highway with a posted limit of 100 km/h – meant Stainthorpe had run afoul of a stringent new speeding law in Ontario, billed as a tough measure to combat street racing. Stainthorpe joined the more than 1,300 drivers who have been nailed since the new law took effect on Sept. 30, all of whom were off the road for a week and faced the possibility of a staggering fine that ranges between $2,000 and $10,000. The ranks of those caught under the new law are hardly the street-racing type: They run the gamut from teenaged girls to elderly men and just about every demographic in between. The most common age of offenders has been 21, the average age is 30, and half the charges have been laid against drivers 26 and under. About 13 of the drivers were 65 or older, and 41 were 17 or younger. Almost 84 per cent were male and 16 per cent were female. When police lobbied for the new law, they expected the province's most aggressive drivers would get caught and hopefully learn a lesson. They didn't anticipate the number of charges would be so high and represent every segment of the driving public. Stainthorpe, a 33-year-old registered nurse, admitted he was speeding, but was furious that police wouldn't let him off with a warning since he had never heard of the new law. "I certainly would not have been doing 50 over if I knew this was going to happen to me," he fumed as he waited for police to finish his paperwork on the side of Highway 403 in Mississauga. "I have three kids, I have to go to work for a week and they just do not give a *EDIT*. They have no sympathy for people and it's unfair and they treat people like *EDIT*." About an hour after a shell-shocked Stainthorpe tried to come to grips with his dilemma, police stopped another vehicle going 155 km/h on the same highway – this time a 34-year-old woman with three pre-teen kids in the car. "Look, I was speeding," said the inconsolable woman, who declined to give her name, as she waited for a taxi. "I expected a ticket, and then I was like, `Oh, *EDIT*.' I did not expect to have my car towed and have them leave my nephews and I no way to get home." She told the officers on the scene she was driving a brand new car, and didn't feel her speed climbing until she heard the sirens behind her. Ontario police Sgt. Dennis Mahoney-Bruer has heard that excuse too many times, and after hearing the same thing over and over – he's even watched grown men bawl their eyes out in front of him – his sympathy is wearing thin. "A little indication (is) if you're going down the highway and you're passing everybody – hello, chances are you're speeding," Mahoney-Bruer said, before adding that some excuses do tug on his heart strings and make him pause before calling a tow truck. "We're all human, we all have a certain amount of feelings . . . but we have that rule now and we're really sticking to it. We really want to get the message to the people out there that you're not going to talk your way out of this." The relentless blitz on speeders – dubbed a "shock-and-awe" campaign by provincial police Commissioner Julian Fantino – is likely catching drivers by surprise because people often don't acknowledge that they act dangerously on the road, said Spencer McDonald, the founder of Thinking Driver, a road-safety program designed for people who drive for a living. "Culturally we all have a higher opinion of our own driving than it actually is, thinking we're better than we really are," McDonald said. "If you go speeding down the road you can say, `Well, I'm not a bad person, or I'm not an idiot, I'm just simply late for a meeting,' but when the guy speeds past you down the road, he's an idiot." A forthcoming report from Transport Canada also finds that most drivers don't recognize their own bad habits, and the unfortunate power they have to kill with their car, said Paul Boase of the Canadian Association of Road Safety Professionals. "For a very long time, speeding – while illegal – was not really treated as a problem," Boase said. "When people thought about speed and risk, they thought about the risk of getting caught, but the real risk is hitting someone." And because the new law is classified as a street-racing offence, Boase said many drivers don't believe they're being targeted by police and think they can continue to speed at will. "There's definitely this perception that street racing is a real serious problem and we ought to hit those people hard, but drivers say, `That's not me, even if I'm doing 50 over that's not me because I'm not racing, I'm just trying to get home."' There's no doubt some of the offenders are habitual speeders, but it's also likely that some of them were simply unlucky, and were caught using bad judgment that may not reflect their normal driving style, McDonald said. "Most people are sane, responsible, law-abiding drivers, but they will – when placed under stressful or difficult circumstances – make inappropriate decisions and expose themselves to excessive risk." While an average of 35 drivers continue to get nabbed every day – and that average has dipped only slightly since the law took effect – many have wised up and are now remaining just below the 150 km/h threshold, Mahoney-Bruer said. "The last two night shifts when I went out exclusively looking for 50 km/h and above I had none," he said. "The highest speed I had was 48 over, so definitely the knowledge is getting out there." Brian Lawrie, president of Pointts, which bills itself as Canada's original and most successful traffic court agency, said the new law may bring him more business, but he considers it a bad idea that could cost someone their job because of human error or an equipment malfunction. "It sounds good to everybody that doing 50 over should be punished right on the spot, but where does the presumption of innocence go when you do that?" Lawrie said. "When we finally find out that . . . the person is found not guilty, then who gives them their job back?" Ontario's new transportation minister, Jim Bradley, said he has no qualms about the law and rejects the idea that most people don't know about it. "I see signs on the highway about it, it's been in the newspaper, it's been on the radio, it's been on television," he said. "I think people know. It's an excuse that people try to use, and it's never an excuse not to know what the law is." http://www.wheels.ca/article/32623 Whos Bawling now Dennis?

Topic

Cop suspended with Pay, HTA 172

by: on

67 Replies

Post Reply
User avatar
Reflections
High Authority
High Authority
Posts: 1489
Joined: Fri Apr 11, 2008 2:49 pm

Re: Cop suspended with Pay, HTA 172

Oh, that would be a funny PhotoShop pic, anyone?

hwybear wrote:

Have Bookm run around the tarmat with a pie plate strapped to his chest and a aluminum foil helmet?

Oh, that would be a funny PhotoShop pic, anyone?

http://www.OHTA.ca OR http://www.OntarioTrafficAct.com
User avatar
Bookm
Sr. Member
Sr. Member
Posts: 632
Joined: Tue Jan 22, 2008 8:38 pm

Re: Cop suspended with Pay, HTA 172

Hmmm... What's the pay?

Hmmm... What's the pay?

User avatar
hwybear
High Authority
High Authority
Posts: 2934
Joined: Tue Apr 22, 2008 7:21 am

Posting Awards

Re: Cop suspended with Pay, HTA 172

So it is not an actual calibrated something or other that makes this test independent. Police radar testing is very similiar (if I'm understanding correctly). After you have done a self test, you basically rely on an object that you can see at a unknown distance (haven't seen a co-pilot get out a tape and measure to a building) Police radar testing is beyond just a self test. A test also has to be done in regards to our speedometer. Meaning we have to move, activate the radar and see if the patrol speed matches with the speedometer reading, if 2 antennas are being used, this comparison must be done with both antennas. This comfirms the antennas are transmitting and receiving properly, and produces a speed at a known rate. If a self check passed, the officer does the patrol speed comparison and no reading, or intermittent reading, the antenna is not working properly and the unit is taken out of service and sent for repair. Would not be any different with a tuning fork (ding) no reading, antenna not working, unit sent for repair.

Radar Identified wrote:

When we're safely clear of the apron/ramp area, during taxi we turn the radar on and point the nose (radar antenna is in the nose cone) at a distant object or set of buildings. If there is a rainshower in the area, even better; we tilt up the antenna and see if the rain shows up on our Multi-Function Display (MFD). Only takes a couple of seconds for the radar sweep to pick it up. We then check that the pattern on the MFD "jives" with what we see outside. So more of a practical test than anything.

So it is not an actual calibrated something or other that makes this test independent.

Police radar testing is very similiar (if I'm understanding correctly). After you have done a self test, you basically rely on an object that you can see at a unknown distance (haven't seen a co-pilot get out a tape and measure to a building)

Police radar testing is beyond just a self test. A test also has to be done in regards to our speedometer. Meaning we have to move, activate the radar and see if the patrol speed matches with the speedometer reading, if 2 antennas are being used, this comparison must be done with both antennas. This comfirms the antennas are transmitting and receiving properly, and produces a speed at a known rate.

I had one case where the internal self-check was showing that it was working, even en route, but the antenna had failed (that was one fun afternoon :shock: )... which is why I'm a bit skeptical of internal circuit tests proving that the device is working.

If a self check passed, the officer does the patrol speed comparison and no reading, or intermittent reading, the antenna is not working properly and the unit is taken out of service and sent for repair. Would not be any different with a tuning fork (ding) no reading, antenna not working, unit sent for repair.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

Correct. Independent calibration is done by an avionics technician, but that's required usually every year or so, depending on the unit. More or less. The shortest range I can use is 10 nautical miles, so a lengthy tape measure would be overdoing it, but just like you have good skills at estimating speeds and distances, we also have to be able to estimate distances - so we have a rough idea of where they should appear. There is another way of checking but it's a bit of overkill. The usual ranges we use are 40 nautical miles (departure/arrival phase) and 80 nautical miles (en route), the primary use, of course, being avoiding significant weather (mostly thunderstorms). If we're close in to an airport for takeoff and final approach we might use the 20 mile range. Now THAT makes sense. I'll buy that. Thanks for clearing that up.

hwybear wrote:

So it is not an actual calibrated something or other that makes this test independent.

Correct. Independent calibration is done by an avionics technician, but that's required usually every year or so, depending on the unit.

hwybear wrote:

After you have done a self test, you basically rely on an object that you can see at a unknown distance (haven't seen a co-pilot get out a tape and measure to a building)

More or less. The shortest range I can use is 10 nautical miles, so a lengthy tape measure would be overdoing it, but just like you have good skills at estimating speeds and distances, we also have to be able to estimate distances - so we have a rough idea of where they should appear. There is another way of checking but it's a bit of overkill. The usual ranges we use are 40 nautical miles (departure/arrival phase) and 80 nautical miles (en route), the primary use, of course, being avoiding significant weather (mostly thunderstorms). If we're close in to an airport for takeoff and final approach we might use the 20 mile range.

hwybear wrote:

A test also has to be done in regards to our speedometer. Meaning we have to move, activate the radar and see if the patrol speed matches with the speedometer reading, if 2 antennas are being used, this comparison must be done with both antennas. This comfirms the antennas are transmitting and receiving properly, and produces a speed at a known rate.

Now THAT makes sense. I'll buy that. Thanks for clearing that up.

User avatar
hwybear
High Authority
High Authority
Posts: 2934
Joined: Tue Apr 22, 2008 7:21 am

Posting Awards

Re: Cop suspended with Pay, HTA 172

RI, that would be for the radar units that are moving. Handheld which TC brings up is another story....again I'll have to go look into the manual.

RI, that would be for the radar units that are moving. Handheld which TC brings up is another story....again I'll have to go look into the manual.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

Yes. Poor wording on my part. :oops: I should've said "I'll buy that for mobile tests, what about hand-helds?"

Yes. Poor wording on my part. :oops: I should've said "I'll buy that for mobile tests, what about hand-helds?"

tdrive2
Sr. Member
Sr. Member
Posts: 346
Joined: Thu Jan 15, 2009 9:49 pm

Re: Cop suspended with Pay, HTA 172

Are any tests done for lidar? Do you guys test on a regular basis? Like have 2-3 officers drive by in marked cars and test various devices to see if they all get same speed and if that matches the car? But then what ensures the speed in the police interceptor is also accurate?

Are any tests done for lidar?

Do you guys test on a regular basis?

Like have 2-3 officers drive by in marked cars and test various devices to see if they all get same speed and if that matches the car?

But then what ensures the speed in the police interceptor is also accurate?

User avatar
hwybear
High Authority
High Authority
Posts: 2934
Joined: Tue Apr 22, 2008 7:21 am

Posting Awards

Re: Cop suspended with Pay, HTA 172

The testing procedures for lidar actually ensure the unit is working properly. Tests are more than internal tests. Unlike any other vehicle, cruiser speedometers are calibrated from purchase date and have this imprinted right on the speedometer.

The testing procedures for lidar actually ensure the unit is working properly. Tests are more than internal tests.

Unlike any other vehicle, cruiser speedometers are calibrated from purchase date and have this imprinted right on the speedometer.

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
User avatar
Reflections
High Authority
High Authority
Posts: 1489
Joined: Fri Apr 11, 2008 2:49 pm

Re: Cop suspended with Pay, HTA 172

Still need a check up every so often, with changing of tires etc.........

hwybear wrote:

Unlike any other vehicle, cruiser speedometers are calibrated from purchase date and have this imprinted right on the speedometer.

Still need a check up every so often, with changing of tires etc.........

http://www.OHTA.ca OR http://www.OntarioTrafficAct.com
User avatar
racer
Moderator
Moderator
Posts: 957
Joined: Wed Nov 14, 2007 7:27 pm

Posting Awards

Moderator

Re: Cop suspended with Pay, HTA 172

Aha, we got you RI! You are a pilot! Ever got asked for a pilot license when speeding?

Aha, we got you RI! You are a pilot! Ever got asked for a pilot license when speeding?

"The more laws, the less justice" - Marcus Tullius Cicero
"The hardest thing to explain is the obvious"

Ontario Traffic Ticket | Ontario Highway Traffic Act
User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

Believe it or not... yes. That was one of the most unbelievable moments I've had on the road. Officer was trying to be funny when he stopped me: "Let's see the pilot's license, sir, because you were flying down the road back there." :oops: I complied. I got let go with a warning. :D

racer wrote:

Aha, we got you RI! You are a pilot! Ever got asked for a pilot license when speeding?

Believe it or not... yes. That was one of the most unbelievable moments I've had on the road. Officer was trying to be funny when he stopped me: "Let's see the pilot's license, sir, because you were flying down the road back there." :oops: I complied.

I got let go with a warning. :D

User avatar
Proper1
Member
Member
Posts: 109
Joined: Sat Jun 07, 2008 8:14 pm

Re: Cop suspended with Pay, HTA 172

Now that's funny!

Now that's funny!

User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

Welcome back, proper1! Been a while since we've heard from you.

Welcome back, proper1! Been a while since we've heard from you.

User avatar
Proper1
Member
Member
Posts: 109
Joined: Sat Jun 07, 2008 8:14 pm

Re: Cop suspended with Pay, HTA 172

Why, thankee kindly, RI. I backed off for health reasons: thinking about that damnable 172 was making me sick (as it will anybody who has respect for the rule of law), and reading about it every day was just too much. So why am I here again? I'm not sure... Masochism? The considerable value of so much else on this site? The laughs we sometimes have? Bits of all three, probably.

Why, thankee kindly, RI. I backed off for health reasons: thinking about that damnable 172 was making me sick (as it will anybody who has respect for the rule of law), and reading about it every day was just too much. So why am I here again? I'm not sure... Masochism? The considerable value of so much else on this site? The laughs we sometimes have? Bits of all three, probably.

User avatar
BelSlySTi
Member
Member
Posts: 222
Joined: Mon Jun 02, 2008 9:35 am

Re: Cop suspended with Pay, HTA 172

Any news on how the alleged shakedown man did in his first appearance?

Any news on how the alleged shakedown man did in his first appearance?

[img]http://i328.photobucket.com/albums/l352/toastedwhitebread/Untitled-TrueColor-03.jpg[/img]
User avatar
BelSlySTi
Member
Member
Posts: 222
Joined: Mon Jun 02, 2008 9:35 am

Re: Cop suspended with Pay, HTA 172

On friday September 4 2009, The court of appeals in Napanee Ontario has ruled that this law is Unconstitutional. R. v Raham. Speeding is Speeding No more information at this time.

On friday September 4 2009, The court of appeals in Napanee Ontario has ruled that this law is Unconstitutional. R. v Raham.

Speeding is Speeding

No more information at this time.

[img]http://i328.photobucket.com/albums/l352/toastedwhitebread/Untitled-TrueColor-03.jpg[/img]
User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

That's an interesting development. Let us know when more becomes available!

That's an interesting development. Let us know when more becomes available!

User avatar
BelSlySTi
Member
Member
Posts: 222
Joined: Mon Jun 02, 2008 9:35 am

Re: Cop suspended with Pay, HTA 172

BOOOOOOOM http://jmortonmusings.blogspot.com/2009 ... ional.html Trying to get a actual transcript. I say again BOOOOOOOOOOOOOM :lol:
[img]http://i328.photobucket.com/albums/l352/toastedwhitebread/Untitled-TrueColor-03.jpg[/img]
User avatar
Bookm
Sr. Member
Sr. Member
Posts: 632
Joined: Tue Jan 22, 2008 8:38 pm

Re: Cop suspended with Pay, HTA 172

This is HUGE!

This is HUGE!

User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

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...

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...

User avatar
Proper1
Member
Member
Posts: 109
Joined: Sat Jun 07, 2008 8:14 pm

Re: Cop suspended with Pay, HTA 172

It's unfortunate that the first successful challenge of this repugnant law should be on a narrow quibble about speeding. We already have proven and reasonable laws against speeding (and careless driving). The sordid heart of 172 -- the summary judgment, conviction, and vicious penalty on the spot, without possibility of appeal or redress -- is not directly under discussion in the Napanee case. Still, I suppose it's a start.

It's unfortunate that the first successful challenge of this repugnant law should be on a narrow quibble about speeding. We already have proven and reasonable laws against speeding (and careless driving). The sordid heart of 172 -- the summary judgment, conviction, and vicious penalty on the spot, without possibility of appeal or redress -- is not directly under discussion in the Napanee case.

Still, I suppose it's a start.

User avatar
ticketcombat
Sr. Member
Sr. Member
Posts: 486
Joined: Mon Jun 30, 2008 5:59 pm

Re: Cop suspended with Pay, HTA 172

I took a different take on Morton's report of the case (Good job finding it Bel!). He noted that there must be some form of mental element (mens rea) to warrant imprisonment. We've seen previous cases where the justices ruled 172 was a strict liability charge open to a due diligence defence. This case goes the other way by stating that IF the only element to the charge is excessive speed, there is no mental element (intention) and no possibility of raising a due diligence defence. Therefore it's an absolute liability charge AND that violate s.7 if the penalty includes the possibility of imprisonment. ********* put it another way **************** Before it was up to the defendant to show diligence - show how they tried to avoid going 50km/h over. The twist with this case is: if there is a possibility of imprisonment and the Crown simply shows the radar gun reading to get a conviction, then there is no possibility of coming up with a valid excuse. It is an absolute liability offence which violates s.7. It's interesting to note that R. v. Brown, 2009 ONCJ 6 said the exact opposite:

I took a different take on Morton's report of the case (Good job finding it Bel!). He noted that there must be some form of mental element (mens rea) to warrant imprisonment. We've seen previous cases where the justices ruled 172 was a strict liability charge open to a due diligence defence.

This case goes the other way by stating that IF the only element to the charge is excessive speed, there is no mental element (intention) and no possibility of raising a due diligence defence. Therefore it's an absolute liability charge AND that violate s.7 if the penalty includes the possibility of imprisonment.

********* put it another way ****************

Before it was up to the defendant to show diligence - show how they tried to avoid going 50km/h over. The twist with this case is: if there is a possibility of imprisonment and the Crown simply shows the radar gun reading to get a conviction, then there is no possibility of coming up with a valid excuse. It is an absolute liability offence which violates s.7.

It's interesting to note that R. v. Brown, 2009 ONCJ 6 said the exact opposite:

the applicant submitted that where speeding is the only allegation within a charge of stunt driving, there is no conceivable due diligence defence available. With respect, this Court declines to speculate on possible defences. In my view, it is this Courts responsibility to simply acknowledge that a due diligence defence is available and leave the development of the defence of what the proverbial 'reasonable person might do, to the creative thinking of counsel.

Fight Your Ticket!
User avatar
Radar Identified
High Authority
High Authority
Posts: 2881
Joined: Mon Sep 08, 2008 8:26 pm

Re: Cop suspended with Pay, HTA 172

I found an equally interesting ruling that quietly went through in June. R. v. Van Der Merwe, 2009 Justice Woodworth, who presided over that case made the following ruling: Justice Woodworth also noted considerable precedent that has established, firmly, that speeding is absolute liability, end of discussion. Actually his ruling went even further with this law. He ruled that the seizure of the vehicle and licence suspension are not "true penal consequences" that would violate the Charter of Rights and Freedoms. (Fine, we'll see what the Ontario Court of Appeal says.) HOWEVER, counter-balancing that, Justice Woodworth stated that because speeding 50 km/h over the limit may be either a speeding (s. 128) or stunt driving (s. 172) charge, and the basis for that is solely the discretion of a police officer at the side of the road: He did rule that this was justified by section 1 of the Charter in that the objectives are to safeguard the public. (We'll see if that stands up at a higher level.) This law will eventually reach the Supreme Court of Canada, I'm sure. The defendant, Johannes van der Merwe, was found not guilty due to lack of evidence (officers did not provide satisfactory evidence that they stopped the correct vehicle). The other case that was interesting was R. v. Vanioukevitch, where the defendant advanced a due diligence defence but was convicted anyway. He stated that he was taking deliberate steps to avoid going more than 50 over, was driving (to his knowledge) well under that speed, has special driving training etc., but the LIDAR read 160 so he's guilty. :?

I found an equally interesting ruling that quietly went through in June.

R. v. Van Der Merwe, 2009

Justice Woodworth, who presided over that case made the following ruling:

The respondent has not established that the deprivation of liberty resulting from this is demonstrably justified in a free and democratic society and as such Section 3.7 of Regulation 455 is not saved by section one.

Section 52(1) of the Constitution Act, 1982 states;

The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force and effect.

This court has found Section 3.7 of Reg.455/07 enacted pursuant to the Highway Traffic Act to be an offence of absolute liability for which a term of imprisonment is possible upon conviction. As this Subsection of the regulation in conjunction with the provisions of Section 172 of the HTA violates the liberty interest of the subject as guaranteed by the court Section 3.7 of Regulation 455/07 is declared to be of no force and effect.

Justice Woodworth also noted considerable precedent that has established, firmly, that speeding is absolute liability, end of discussion. Actually his ruling went even further with this law. He ruled that the seizure of the vehicle and licence suspension are not "true penal consequences" that would violate the Charter of Rights and Freedoms. (Fine, we'll see what the Ontario Court of Appeal says.) HOWEVER, counter-balancing that, Justice Woodworth stated that because speeding 50 km/h over the limit may be either a speeding (s. 128) or stunt driving (s. 172) charge, and the basis for that is solely the discretion of a police officer at the side of the road:

There does not appear to be any rational basis or ascertainable standards as to how that discretion will be utilized in determining what a person will be charged with in the circumstances of speeding at more than 50 kilometres above the speed limit. Thus based upon this factor s. 172 of the HTA does offend section 12 of the Charter in that the penalties may be arbitrarily imposed.

He did rule that this was justified by section 1 of the Charter in that the objectives are to safeguard the public. (We'll see if that stands up at a higher level.) This law will eventually reach the Supreme Court of Canada, I'm sure. The defendant, Johannes van der Merwe, was found not guilty due to lack of evidence (officers did not provide satisfactory evidence that they stopped the correct vehicle).

The other case that was interesting was R. v. Vanioukevitch, where the defendant advanced a due diligence defence but was convicted anyway. He stated that he was taking deliberate steps to avoid going more than 50 over, was driving (to his knowledge) well under that speed, has special driving training etc., but the LIDAR read 160 so he's guilty. :?

User avatar
Squishy
Sr. Member
Sr. Member
Posts: 709
Joined: Thu Feb 26, 2009 10:45 am

Re: Cop suspended with Pay, HTA 172

What if Ms. Raham here pulls a Myers, gets tired of all the brouhaha, and quietly takes a deal? Is the previous court ruling still binding on lower courts (JPs), or is it treated as if the previous ruling(s) never happened?

What if Ms. Raham here pulls a Myers, gets tired of all the brouhaha, and quietly takes a deal? Is the previous court ruling still binding on lower courts (JPs), or is it treated as if the previous ruling(s) never happened?

User avatar
BelSlySTi
Member
Member
Posts: 222
Joined: Mon Jun 02, 2008 9:35 am

Re: Cop suspended with Pay, HTA 172

Transcript http://www.over80.net/userfiles/file/ap ... dgment.pdf
[img]http://i328.photobucket.com/albums/l352/toastedwhitebread/Untitled-TrueColor-03.jpg[/img]
User avatar
Bookm
Sr. Member
Sr. Member
Posts: 632
Joined: Tue Jan 22, 2008 8:38 pm

Re: Cop suspended with Pay, HTA 172

"File damaged and can not be repaired" Any one else unable to open?
User avatar
Squishy
Sr. Member
Sr. Member
Posts: 709
Joined: Thu Feb 26, 2009 10:45 am

Re: Cop suspended with Pay, HTA 172

Works for me. 23 pages, text (not scanned). I think "unsafe or remarkable" should be a requirement on top of 50-over for 172. 50+ during the day, good visibility, reasonably light traffic - normal speeding, s. 128. 50+ at night or in otherwise poor visibility, higher traffic volumes, etc., then go with 172 for "stunt driving". EDIT: Just finished reading it. Maybe it's for the best that Bookm can't open it..."speeding is a factor" is peppered across the document. :lol: I did laugh out loud when Shakespeare was quoted.

Works for me. 23 pages, text (not scanned).

Officer Doolan testified that there was nothing unsafe or remarkable about Ms. Raham's lane change, and that the only evidence pertaining to the charge was the speed as indicated on the speed measuring device.

I think "unsafe or remarkable" should be a requirement on top of 50-over for 172. 50+ during the day, good visibility, reasonably light traffic - normal speeding, s. 128. 50+ at night or in otherwise poor visibility, higher traffic volumes, etc., then go with 172 for "stunt driving".

EDIT: Just finished reading it. Maybe it's for the best that Bookm can't open it..."speeding is a factor" is peppered across the document. :lol:

I did laugh out loud when Shakespeare was quoted.

Marquisse
Member
Member
Posts: 139
Joined: Tue Jul 14, 2009 9:14 am

Re: Cop suspended with Pay, HTA 172

I laughed when I read that part of what defines "stunt driving" is driving with a person in the trunk. All those kids trying to smuggle their buddies into the drive-in had better watch out. Imagine being caught "Stunt driving" in your mother's Aveo. LOL!!!!!

I laughed when I read that part of what defines "stunt driving" is driving with a person in the trunk.

All those kids trying to smuggle their buddies into the drive-in had better watch out. Imagine being caught "Stunt driving" in your mother's Aveo. LOL!!!!!

User avatar
hwybear
High Authority
High Authority
Posts: 2934
Joined: Tue Apr 22, 2008 7:21 am

Posting Awards

Re: Cop suspended with Pay, HTA 172

isn't that punishment in itself...AVEO :D

Marquisse wrote:

I laughed when I read that part of what defines "stunt driving" is driving with a person in the trunk.

All those kids trying to smuggle their buddies into the drive-in had better watch out. Imagine being caught "driving" in your mother's Aveo. LOL!!!!!

isn't that punishment in itself...AVEO :D

Above is merely a suggestion/thought and in no way constitutes legal advice or views of my employer. www.OHTA.ca
User avatar
Bookm
Sr. Member
Sr. Member
Posts: 632
Joined: Tue Jan 22, 2008 8:38 pm

Re: Cop suspended with Pay, HTA 172

Am I missing something?... Still on page 10 but: "...speed increased incrementally to 130, and then to 131" So she was charged for being 51 over, right? I sure hope the following Genesis II specs are wrong then, or there's a good chance she was really driving just 48 over :shock: Specifications for Decatur Police / Law Enforcement Radar System - Genesis-II Directional: Performance Specification: Stationary Accuracy: +/-1 MPH (1.6kph) Moving Accuracy: +/- 2 MPH (3.2kph) http://www.opticsplanet.net/decatur-gen ... radar.html I'm not sure why no one wants to address the tolerance factor. Maybe people in general think everything is an exact science, as long as some digital number is displayed on a screen. We had a client who wanted us to assist him in his attempt to have his neighbor move his $3,000 fence 10 millimeters off "his" property. Just try explaining to people that, even with our billion dollar equipment (cough), we just can't make ground measurements that accurately (repetitively). ix) "Officer Doolan testified that there was nothing unsafe or remarkable about Ms. Rahams lane change, and that the only evidence pertaining to the charge was the speed as indicated on the speed measuring device." So why was she bothered by the police then?... Oh, right,... the little number on the Genesis II. P.S. File didn't like Adobe Acrobat. Is fine with Adobe Reader. :?

Am I missing something?... Still on page 10 but:

"...speed increased incrementally to 130, and then to 131"

So she was charged for being 51 over, right?

I sure hope the following Genesis II specs are wrong then, or there's a good chance she was really driving just 48 over :shock:

Specifications for Decatur Police / Law Enforcement Radar System - Genesis-II Directional:

Performance Specification:

Stationary Accuracy: +/-1 MPH (1.6kph)

Moving Accuracy: +/- 2 MPH (3.2kph)

http://www.opticsplanet.net/decatur-gen ... radar.html

I'm not sure why no one wants to address the tolerance factor. Maybe people in general think everything is an exact science, as long as some digital number is displayed on a screen. We had a client who wanted us to assist him in his attempt to have his neighbor move his $3,000 fence 10 millimeters off "his" property. Just try explaining to people that, even with our billion dollar equipment (cough), we just can't make ground measurements that accurately (repetitively).

ix) "Officer Doolan testified that there was nothing unsafe

or remarkable about Ms. Rahams lane change, and that

the only evidence pertaining to the charge was the

speed as indicated on the speed measuring device."

So why was she bothered by the police then?... Oh, right,... the little number on the Genesis II.

P.S. File didn't like Adobe Acrobat. Is fine with Adobe Reader. :?

Similar Topics