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Ontario Highway Traffic Act

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PostPosted: Fri Nov 14, 2008 10:38 am 
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lawmen wrote:
http://www.canlii.org/en/on/oncj/doc/2008/2008oncj507/2008oncj507.html

THE COURT: "I've got to tell you, that client should be here to see all of this careful and able work."

Hahahaha!

What a disgrace.
I truly hope the judge was being sarcastic.

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PostPosted: Fri Nov 14, 2008 12:21 pm 
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How could this be a Strict Liability offence? It's Speeding! If you sped, you're guilty, right? (no option for due diligence).

The witness was sitting right in the defendants vehicle observing the defendants speedometer. How could you get a more iron-clad case? OH WAIT, the defendant was a cop! That evens the playing field and all he has to do is deny any wrongdoing. No other citizen in this province would have that advantage. All this nonsense about time-line, lack of notes, and not stopping the driver immediately and having the very car the witness was riding in towed, is almost cartoon-like.

The bottom line is, one of these police officers outright LIED on the stand. The ruling made at trial would clearly indicate that Const. Brenda Donnelly fabricated the whole thing. Is she now going to be fired? Is she going to be required to receive psychological treatment for her apparent delusions? Will she not face a defamation case filed by Const. Tapp? I mean, clearly she's a complete f**kup right?? PFFFFT!! No doubt in my mind, Tapp lied.

I can't help but laugh when I look at Julian Fantino's pic with the underlying quote,
'The law is equal to all and so is accountability and I think it shows that we mean business,' says OPP Commissioner Julian Fantino.
http://www.cbc.ca/canada/toronto/story/ ... acing.html

What a farce!


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PostPosted: Fri Nov 14, 2008 12:32 pm 
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Bookm wrote:
How could this be a Strict Liability offence? It's Speeding! If you sped, you're guilty, right? (no option for due diligence).
Check out the case that I cited above: R. v. Araujo, 2008 ONCJ 507. They are treating s172 as a strict liability offence!

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PostPosted: Fri Nov 14, 2008 12:42 pm 
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Ahh yes. My bad. It's the potential for severe penalties that makes it Strict.

But this seems to fly in the face of the impoundment rules. How can a driver defend himself using a due diligence argument on the side of the road? Only the court can rule on such a defense, not an officer. It seems to me that this is the core problem with 172. To be punished on a Strict Liability offense BEFORE a proper trial is simply uncivilized.


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PostPosted: Fri Nov 14, 2008 1:47 pm 
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Each of the following is an separate offences under the stunt definition. The court claims its a strict liability offence, meaning you have a due diligence defence.

How can one have a due diligence excuse for driving a motor vehicle with a person in the trunk? Ha!

How can one have a due diligence excuse for driving a motor vehicle while the driver is not sitting in the driver’s seat? Haha!

Para. 8 uses the same wording as careless driving on a road, on a sidewalk or on a snow machine. This is a mens rea offence under s. 130 of the HTA for a vehicle, under the TO Municpal Code for a bicycle, and under the Snow Vehicle Act for a snow machine.

All of the remaining sections of the stunt offence are careless driving offences, which are mens rea, not strict liability.

If a court and the crown cannot properly interpret the law then it is of no force and effect because a lay person would not understand it either.


Definition, “stunt”

3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.

2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.

3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.

4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

5. Driving a motor vehicle with a person in the trunk of the motor vehicle.


6. Driving a motor vehicle while the driver is not sitting in the driver’s seat.

7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.

8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

...

http://www.e-laws.gov.on.ca/html/regs/e ... 0455_e.htm

And quite frankly, those clauses that use the words "an intention to" are true crinimal offences. They should fall under dangerous driving under the Criminla Code.

How can one have a due diligence defence if the conduct committed was "an intention to"?

How can speeding over 50 kph be a strict liability offence under s. 172 when the same offence is an absolute liability offence under s. 128?

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Last edited by lawmen on Fri Nov 14, 2008 2:34 pm, edited 4 times in total.

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PostPosted: Fri Nov 14, 2008 2:10 pm 
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Bookm wrote:
Ahh yes. My bad. It's the potential for severe penalties that makes it Strict.

But this seems to fly in the face of the impoundment rules. How can a driver defend himself using a due diligence argument on the side of the road? Only the court can rule on such a defense, not an officer. It seems to me that this is the core problem with 172. To be punished on a Strict Liability offense BEFORE a proper trial is simply uncivilized.


It's not a strict liability offence. At all.

An offence of strict liability requires the minimal mental element of negligence in order to gain a conviction. Negligence consists in an unreasonable failure to know the facts which constitute the offence, or the failure to be duly diligent to take steps which a reasonable person would take. Since ignorance of the law is not an excuse for breaking the law, due diligence consists in taking steps to fulfil a duty imposed by law and not just be aware of the existence of a statutory prohibition or its interpretation.

Strict liabilty is an odd offence. One is innocent until proven guilty. One cannot be forced to be a witness against himself at trial. Yet the due diligence defence places the defence within the sole knowledge of the accused.

A strict liability offence is not permitted in crinimal law. Criminal offences have always required proof of guilt beyond a reasonable doubt.

This is not so with regulatory offences, where a conviction will lie if the accused has failed to meet the standard of care required. The HTA is quasi-crinimal. Regulatory offences were developed and recognized as a distinct category precisely for the purpose of relieving the Crown of the burden of proving mens rea. This is their hallmark.

Strict liabilty places a reverse burden on the accused. It is necessary to require them to show on a balance of probabilities that they took reasonable precautions to avoid the harm which actually resulted. It is a virtual impossibility of proving regulatory offences beyond a reasonable doubt and this was central to this Court's decision in R. v. Sault Ste. Marie.

In this doctrine it is not up to the prosecution to prove negligence. Instead, it is open to the defendant to prove that all due care has been taken. This burden falls upon the defendant as he is the only one who will have the means of proof.

This is not unfair as the alternative is absolute liability which denies an accused any defence whatever. While the prosecution must prove beyond a reasonable doubt that the defendant committed the prohibited act, the defendant must only establish on the balance of probabilities that he has a defence of reasonable care.

Therefore, the accused can produce an excuse without having to take the stand, which does not offend s. 11(c) of the Charter and the reverse burden does not offend 11(d) of the Charter.

But s. 172 is NOT a strict liability offence.

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PostPosted: Fri Nov 14, 2008 5:47 pm 
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lawmen wrote:
After declaring s. 172 to be a strict liability offence, the justice than failed to inquiry whether or not the driver had an excuse to be speeding, i.e., the due diligence defence, before imposing his punishment.


I just re-read this case and need to make a crrection to my comment above because of Ms. Carter's statement:

MS. CARTER: I believe it'd be the Crown's submissions first as we're offering no defence evidence.

However, I will add this bizarre ruling from the Justice.

I know that the issue arises because of the fact that one of the possible forms of stunt in Section 172 is driving at a rate of speed greater than 50 kilometres per hour, but that is a distinct charge and offence from the charges set out in Section 128.

How are they distinct?

Both s. 128 and s. 172 have an offence for going 50 kph over the speed limit. They are the same offence and not distinct at all.

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PostPosted: Fri Nov 14, 2008 6:37 pm 
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lawmen wrote:
MS. CARTER: I believe it'd be the Crown's submissions first as we're offering no defence evidence.

Lawmen: you just don't get it. Charter rights are so 1990s. This is Ontario 2008: Roll-over. Play dead. Good defendant.:-)

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PostPosted: Fri Nov 14, 2008 6:43 pm 
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Haha!

I'm not the submissive type.

This is the only s. 172 case I've seen posted. Apparantly there are thousands of them yet they refuse to post them. I wonder why...

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PostPosted: Fri Nov 14, 2008 10:28 pm 
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Quote:
4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.


Where was that question about speeding while passing???

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PostPosted: Fri Nov 14, 2008 11:59 pm 
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Apparantly there are thousands of them yet they refuse to post them. I wonder why...


Oh, I don't know, seizing someone's lawfully-owned property without recourse or appeal available as de-facto intended punishment is grossly unconstitutional (among other things)? Apparently violating your rights is okay if you exceed the posted speed limit in Ontario (YOU MONSTER!!!), but if you're an arsonist, murder, kidnapper, etc., no, your rights have to be protected. (Not saying rights DON'T have to be protected but violating them for a traffic offence?!)

Some US states have serious penalties for excessive speeding. Arizona: 25 MPH over = jail time. Virginia: 20 MPH over = JAIL TIME. :shock: California: "exhibition of speed" = possible jail time and PERMANENT confisciation of your vehicle!!! Difference? Oh yeah, all of that is AFTER you get convicted!


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PostPosted: Sat Nov 15, 2008 2:01 am 
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The US only has two class of offences, strict and mens rea, while Canada has three, strict, absolute and mens rea.

A term of imprisonment can be attached to a strict liability offence. The US offfences are strict liability with attached prison time, while in Canada speeding is an absolute liability offence where a term of imprisonment attached to the offence violates s. 7 of the Charter.

And cops are not seizing cars here, they are stealing them.

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PostPosted: Sat Nov 15, 2008 12:21 pm 
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ticketcombat wrote:
lawmen wrote:
MS. CARTER: I believe it'd be the Crown's submissions first as we're offering no defense evidence.

Lawmen: you just don't get it. Charter rights are so 1990s. This is Ontario 2008: Roll-over. Play dead. Good defendant.:-)


lawmen wrote:
Haha!

I'm not the submissive type.

This is the only s. 172 case I've seen posted. Apparently there are thousands of them yet they refuse to post them. I wonder why...


Good point TC. A judge cannot make the charges stick to a dead person. A friend of mine got off DUI because his BAC was over the legally dead limit (back in the days of early detectors, when a penny in a mouth would send it's reading through the roof, then he refused the blood test, and no-one could make him because he blew already). The judge couldn't stick the charges to him because he was legally dead...

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PostPosted: Sat Nov 15, 2008 7:09 pm 
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lawmen wrote:
Each of the following is an separate offences under the stunt definition. The court claims its a strict liability offence, meaning you have a due diligence defence.

Para. 8 uses the same wording as careless driving on a road, on a sidewalk or on a snow machine. This is a mens rea offence under s. 130 of the HTA for a vehicle, under the TO Municpal Code for a bicycle, and under the Snow Vehicle Act for a snow machine.

All of the remaining sections of the stunt offence are careless driving offences, which are mens rea, not strict liability.


Hmmm, I always relied upon R. v. Hundal to support that careless driving was a mens rea offence.

http://www.canlii.org/en/ca/scc/doc/199 ... ii120.html

But the case below from Manitoba seems to pick my theory apart and it claims careless driving is a strict liability offence because it is not criminal, like dangerous driving is, in Hundal.

http://www.canlii.org/en/mb/mbpc/doc/20 ... 17868.html

Therefore, careless driving might be a strict liability offence on its own, but in any event, I still believe the offence listed under clause 8 of the regulation regarding s. 172 are mens rea offences because the wording "an intention to" is used.

These words indicate intent, and if you intend on doing something you are not committing a strict liability offence with a due diligence excuse, you are committing an intentional act and mens rea must be proven.

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PostPosted: Sun Nov 16, 2008 9:06 pm 
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Quote:
A term of imprisonment can be attached to a strict liability offence. The US offfences are strict liability with attached prison time, while in Canada speeding is an absolute liability offence where a term of imprisonment attached to the offence violates s. 7 of the Charter.


My point was that US states are applying penalties, even some fairly heavy ones, but they're all post-conviction. That's fine. You get your day in court. Ontario is imposing up-front irrevocable, unappealable penalties on the accused, for a traffic violation.


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