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Ontario Highway Traffic Act

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PostPosted: Mon Nov 17, 2008 12:04 am 
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I understand. But here's the thing with s. 172.

I called three different OPP and three different local cops to see what type of offence s. 172 is. They ALL claim it's an absolute liability offence.

The court claims it's a strict liability offence.

The reason why the cops impound cars on the spot is because they claim it's an absolute liability offence. These offences make you guilty once you commit the act. Strict liability offences allow you a defence of due diligence.

Either or, an accused still gets to challenge the evidence, but an absolute liability offence doesn't allow you a defence, unless it was of necessity.

In other words, say you mom was in the passenger seat and had a heart attack. You rush to the hospital and you're speeding. This is a defence to an absolute liability offence even though these offences don't typically allow a defence.

It's called the defence of necessity.

Call yor cop shop and see what type of offence they claim s. 172 is?

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PostPosted: Mon Nov 17, 2008 12:21 am 
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The other major problem with s. 172 is that it's too vague in some regards.

The words used are completely subjective and essentially arbitrary, and provided no guidance to allow courts to reasonably interpret the words or devise a test that achieved the legislative objective. Some terms are so open-ended that it failed to delineate with sufficient precision the illegal conduct it sought to proscribe and that it authorizes a "standardless sweep" by enforcement officials.

Reliance on enforcement officers to interpret the words in a sensible way accepts precisely the sort of "standardless sweep" and discretionary enforcement that are the hallmarks of vague and uncertain legislation. Therefore, s. 172 is void for vagueness and is, on that account, invalid and unenforceable.


Definition, “race” and “contest”

2. (1) For the purposes of section 172 of the Act, “race” and “contest” include any activity where one or more persons engage in any of the following driving behaviours:

1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.

2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.

3. 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,

...

ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or

iii. repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.

Stunt

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.

...


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,

i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,

ii. stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,

iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or

iv. making a left turn where,

(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;

(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and

(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle

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PostPosted: Mon Nov 17, 2008 9:03 am 
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Yep, vague description for votes. I tell you all, when I run for office I'll make all the vague promises I can........wait everyone else already does that. This law will be changed.....when is another matter.

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PostPosted: Tue Nov 18, 2008 1:04 pm 
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The vagueness is such that it allows virtually anything you do while driving to be possibly considered an act of stunt driving or street racing. The type of irrevocable and unappealable consequences that can be imposed upon anyone, guilty or not, on the spot, is not justified in a free society.

So if the courts say one thing and the police say something else regarding strict or absolute liability, where does that leave us?


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PostPosted: Tue Nov 18, 2008 4:04 pm 
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Someone needs to challenge this in the Supreme Court of Canada. Lower courts are not bound by other lower court decisions. But lower courts are bound by higher court decisions.

The weird thing is, one Supreme Court decision I read stated that HTA offences are all strict liability offences unless the Act declares otherwise. But lower courts don’t follow this at all times.

If you read the HTA, it sorta agrees with the Supreme Court. Only s. 84 articulate that it is an absolute liability offence, which would indicate all other offences are not.

However, it is the language of the provision that dictates whether or not it is a strict, absolute or mens rea offence.

Many HTA sections have been ruled to be an absolute liability offence despite the Supreme Courts comment on Strict. Speeding tickets were around before s. 172 and dozens and dozens of cases declare them to be absolute liability. Section 207 is deemed an absolute offence. And on and on.

There are probably 6,000 or more cops in Ontario, and with s. 172 being so vague, we have 6,000 different definitions of "in close proximity," "in a manner that indicastes," "for a period of time," etc, and that's not the way law works.

What may be "in close proximity" to one cop is different to another. You may've been with 3 feet of another car, while I was within 12 feet and yet we both get charged for the same offence. It's arbitrary and would not stand as it is written today once it reaches the Supreme Court.

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PostPosted: Tue Nov 18, 2008 8:34 pm 
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lawmen wrote:
The weird thing is, one Supreme Court decision I read stated that HTA offences are all strict liability offences unless the Act declares otherwise.


If the HTA offences are all strict liability unless the Act declares otherwise, why are the following offences clarifying themselves to be strict instead of absolute?

Appeal of order to impound

50.2 (1) The owner of a motor vehicle that is subject to an order to impound under section 55.1 may, upon paying the prescribed fee, appeal the order to the Tribunal. 1997, c. 12, s. 5; 1999, c. 12, Sched. G, s. 24 (12).

Parties

(2) The owner and the Registrar are the parties to an appeal under this section. 1997, c. 12, s. 5.

Grounds for appeal

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may set aside the order to impound are,

(a) that the motor vehicle that is subject to the order was stolen at the time in respect of which the order was made;

(b) that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension; or

(d) that the order will result in exceptional hardship.


Offence, novice driver regulations

57.2 (1) Every novice driver who contravenes a condition or restriction prescribed by a regulation made under section 57.1 is guilty of an offence. 1993, c. 40, s. 7.

Defence to accompanying driver charge

(2) It is a defence to a charge under subsection (1) relating to the qualifications or requirements of the accompanying driver if the accused novice driver establishes that he or she took all reasonable measures to comply with the regulations.

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PostPosted: Tue Nov 18, 2008 9:37 pm 
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Radar Identified wrote:
The vagueness is such that it allows virtually anything you do while driving to be possibly considered an act of stunt driving or street racing. The type of irrevocable and unappealable consequences that can be imposed upon anyone, guilty or not, on the spot, is not justified in a free society.

So if the courts say one thing and the police say something else regarding strict or absolute liability, where does that leave us?


I have an image......balls.......sling......... :shock:

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PostPosted: Wed Nov 19, 2008 2:40 pm 
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Quote:
I have an image......balls.......sling.........


I think the acronym BOHICA also applies. :shock:

Quote:
Someone needs to challenge this in the Supreme Court of Canada.


Got that right. The sooner, the better.


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