JP rules - HTA172 violates the charter

about time some sanity came about with regard to this farce

nice to see a JP that actually understands the laws they're paid to uphold

http://www2.macleans.ca/2009/04/30/fast ... #more-3125

Fast and furious

Do street racing laws actually violate the Charter of Rights?

If nothing else, Ontarios new "street racing" law has made for some amusing police blotter. There was that heavy-footed firefighter who had his emergency vehicle impounded for seven days (he was off-duty when a North Bay cop clocked him at 70 km/h over the limit). Another driver nabbed in the same part of the province also lost his wheels for a week—as did the speeding tow truck driver who came to impound the car. And then, of course, there was Antonio Talarico, the 26-year-old who made headlines across the country last month when his Infiniti G35 was spotted tearing down a Toronto highway at a whopping 250 km/h. His first words after being pulled over? "Im sorry."

The Ontario Provincial Police certainly isnt apologizing. Or laughing. The force says the tough new street racing penalties—including possible prison time for anyone caught driving more than 50 km/h over the limit—are doing exactly what they were designed to do: save lives. In 2008, the laws first full year on the books, fatalities on OPP-patrolled roads plummeted by almost one-third (from 451 to 322), and in the first three months of 2009 there were 17 speed-related deaths, a 29 per cent drop from the same period last year.

But 18 months and 11,000 charges after the law was first introduced, police and prosecutors are revving up for a legal showdown that threatens to quash some of cops newfound powers—including the luxury of treating every excessive speeder like a hard-core street racer. One justice of the peace has already ruled that a key section of the law is unconstitutional, and if defence lawyers have their way, the provinces highest court will have to weigh in on a question already being asked in traffic courts across Ontario: do jail sentences for speeders violate the Charter of Rights and Freedoms?

Adopted in September 2007, Section 172 of Ontarios Highway Traffic Act was created to crack down on the fast and the furious. Anyone caught racing or "stunting" (doing doughnuts in a parking lot, for example, or cruising around town with a passenger in the trunk) will automatically lose his car and his licence for seven days. If convicted, the penalties range from a minimum fine of $2,000 to six months behind bars. At last count, 24 drivers have served at least one night in jail because they thought they were Paul Tracy.

But the "50 over" provision—though widely supported by the public—presents a constitutional conundrum. Nobody is saying that a jail sentence isnt appropriate for a pair of reckless pals weaving through traffic on their way to an imaginary finish line. But that off-duty fireman driving 70 km/h over the limit? Or a late-night commuter whos rushing home? Their infraction—plain old speeding—is already covered in the Highway Traffic Act, and the maximum penalty isnt anywhere near prison. "At 49 km/h over the speed limit, youre a member of society and youre welcome to live amongst us," says Gary Parker, a paralegal who has represented dozens of drivers netted by the new law. "At 50 over, youre now a monster worthy of jail. It makes absolutely no sense at all."

Simply put, speeding has always been considered an "absolute liability" offence. Once a person is clocked over the limit, there is basically no possible defence (unless he can prove the radar gun was defective). As a trade-off for such swift justice, the Charter guarantees that anyone who commits an absolute liability offence—i.e., he has no fighting chance to defend himself—cant be locked away. Yet now, thanks to the new stunt-driving legislation, a form of speeding is suddenly punishable with prison. "It is unconstitutional," says Brian Starkman, a lawyer who specializes in street-racing cases. "You cant have an absolute liability offence co-exist with the potential for jail. That is settled in law."

Starkman, among others, has tried to argue that point in court, hoping to have the "50 over" section scratched from the act. The courts have been unsympathetic—until now. Macleans has learned that earlier this month, a man in Burlington who was clocked at 60 km/h over the limit had his charges stayed after a justice of the peace, Barbara Waugh, agreed with the constitutional challenge. "I am the first one to win," says Gary Lewin, the mans paralegal. "She ruled that speeding is speeding, it is an absolute liability offence, and that the stunt-driving law breaches the Charter because now you can go to jail."

Though significant, the decision does not set a precedent. Fellow JPs are free to follow Waughs opinion or ignore it. However, two similar cases have already been appealed to a provincial judge, and as the legal arguments creep toward the countrys highest courts, the results may force the Ontario government to raise the checkered flag. "If youre using a highway as your own personal racetrack, thats criminal," Starkman says. "But if all youre doing is speeding, then you should be charged with speeding."

http://laws.justice.gc.ca/en/charter/

1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.

33. (1) Parliament or the legislature of a province may expressly declare in an Act of Parliament or of the legislature, as the case may be, that the Act or a provision thereof shall operate notwithstanding a provision included in section 2 or sections 7 to 15 of this Charter.

Operation of exception (2) An Act or a provision of an Act in respect of which a declaration made under this section is in effect shall have such operation as it would have but for the provision of this Charter referred to in the declaration.

Five year limitation (3) A declaration made under subsection (1) shall cease to have effect five years after it comes into force or on such earlier date as may be specified in the declaration.

Re-enactment (4) Parliament or the legislature of a province may re-enact a declaration made under subsection (1).

Five year limitation (5) Subsection (3) applies in respect of a re-enactment made under subsection (4).

Translation: The government can pass any law it wants that violates the charter if it feels like it.

Scary isn't it.The speeding laws do not violate the charter. Yes, if you forget to read section 33 this is a violation of our rights, but because of how the charter itself is written there is nothing wrong with this.

^^^^ problem with your argument Plender....is that the HTA already had/has laws governing "speeding".....and those offences under the HTA are supposed to be absolute liability....172 tries to blurr the lines between the HTA and the CCC....let alone tries to give new meanings to age-old definitions

anyhoo.....a JP agreed and has stayed a case of 60kph-over as a charter violation based on the fact that the alleged was speeding and not racing/stunting

the can of worms has officially been opened

Plenderzoosh wrote:

Scary isn't it.The speeding laws do not violate the charter. Yes, if you forget to read section 33 this is a violation of our rights, but because of how the charter itself is written there is nothing wrong with this.

Negative. The government has to invoke the Notwithstanding Clause in the legislation in order for it to withstand a court challenge. Since they did not, it can be struck down by the courts. The only province that has invoked the notwithstanding clause (section 33) is Quebec with respect to its language laws. Ontario would have to specifically invoke section 33. They did not do it, so the law is open to being struck down.

I'll pull out my tennis ball (can't afford the crystal ball) and gaze into the fuzzy side ...

The ball is predicting that the future holds a change to part of the act.

The vehicle impoundment part will be removed, but the 7 day suspension will stand.

hwybear wrote:

I'll pull out my tennis ball (can't afford the crystal ball) and gaze into the fuzzy side ...

The ball is predicting that the future holds a change to part of the act.

The vehicle impoundment part will be removed, but the 7 day suspension will stand.

Sh!t 'bear, my magic 8-ball told me that. Did your tennis ball also tell you that a man named Spalding or Wilson would do the work.......

hwybear wrote:

I'll pull out my tennis ball (can't afford the crystal ball) and gaze into the fuzzy side ...

The ball is predicting that the future holds a change to part of the act.

The vehicle impoundment part will be removed, but the 7 day suspension will stand.

I'm trying to understand how this all works. Is there any correlation between the potential jail-time on maximum penalty with the vehicle seizure on the upfront?

the Liberal jokers were blurring a lot of lines when they approved this legislation, the Civil Remedies Act seems to have been brought into play here....another act targeting "criminal" behavior used here under HTA regs

hwybear wrote:

The vehicle impoundment part will be removed, but the 7 day suspension will stand.

Gazing into my squash ball... it seems to show... that hwybear is right.

Probably also the "absolute liability" offences that are under O.Reg 455/07 will be re-categorized, or it may be that the gov't takes the lazy way and simply removes them from being under s. 172 so that there is no possibility of time in the slammer for an absolute liability offence.

PetitionGuy wrote:

I'm trying to understand how this all works. Is there any correlation between the potential jail-time on maximum penalty with the vehicle seizure on the upfront?

Not really. They mixed a whole bunch of things together with this law.

PetitionGuy wrote:

hwybear wrote:

I'll pull out my tennis ball (can't afford the crystal ball) and gaze into the fuzzy side ...

The ball is predicting that the future holds a change to part of the act.

The vehicle impoundment part will be removed, but the 7 day suspension will stand.

I'm trying to understand how this all works. Is there any correlation between the potential jail-time on maximum penalty with the vehicle seizure on the upfront?

the Liberal jokers were blurring a lot of lines when they approved this legislation, the Civil Remedies Act seems to have been brought into play here....another act targeting "criminal" behavior used here under HTA regs

Currently the law allows officers to take your license and car. There is no issue with the law taking your license, it is the property of the provence anyway. Your car however is your car, not theirs......As far as jail time, sure, repeat offenders and trial first. You don't currently get jail time without a trial anyways....What else will the "leaders" do to get elected....only time will tell

Sorry to rain on this parade but the MacLeans article is out of date and the JP in the case does not know her recent case law. A lot of paralegals are incorrectly trying to argue the absolute liability angle and it doesn't work as pointed out in this thread:

http://www.ontariohighwaytrafficact.com/topic940.html

A more reasonable approach is going after the seizure provisions and also arguing speeding under s. 128 now becomes a strict liability charge.

The notwithstanding clause has been used by Quebec, Saskatchewan, Alberta and the Yukon. Source.

ticketcombat wrote:

Sorry to rain on this parade but the MacLeans article is out of date and the JP in the case does not know her recent case law.

that article is from 7 days ago...and apparently, the JP in the case just made recent case law?

PetitionGuy wrote:

ticketcombat wrote:

Sorry to rain on this parade but the MacLeans article is out of date and the JP in the case does not know her recent case law.

that article is from 7 days ago...and apparently, the JP in the case just made recent case law?

JP made a decision, not case law.

Just to clarify, the two decisions cited in the other thread are not binding as they are not appellate court decisions. And neither is the Maclean's decision (which I've never read).

In R. v. Brown, Cuthbertson does an admirable job of examining the case law and statutory interpretation.

So until a binding appellate court decision, it really ends up being who you get as a justice.

I think the path of least resistance to this type of argument is to declare 172 a strict liability charge (despite what all the paralegals argue). This is what Cuthbertson concluded. I don't know the MacLean's case but it is surprising that the opposite conclusion was reached.

TC, with your expertise, would you say that if s. 172 is declared strict liability, this would help void the ability to impound a vehicle upfront? I'm somewhat guessing as I have a layman's understanding.

Neat article although there has been talk of this for some time.

I agree with bear and the rest of you, although the roadside trial needs to stop. If they really want they can impound your car for a week after proven guilty in court.

So my question goes like this. If this does get repealed this will make big time news. Well if its gets changed i heard Fantino's time is up soon as this would for sure cook his bacon along with him trying to get rid of a Jury member in his case with those 2 cops. So if this makes news and we find out this law was unconstitutional, etc and the impoundment on the stop was against our code of law then what happens?

I want to know what happens to the THOUSANDS who have been royaly screwed over by this law, you know the ones that had to get rides to work for 7 days, who had to pay for a ride home, for the towing fees and they weren't even proven guilty!!!

I read somewhere this law results in a 30-40 % conviction rate. So are these people going to get reimbursed? Surely some people won't be very happy to find out this law goes against our own constitutional laws and rights which grant us to a fair trial.

I also don't think 172 was a terrible law, it had some good stuff. But the road side trial was not right.

Again it always has to be about speed. Why other things arent talked about more often by the OPP, the news, MTO, and government. The mto worries about speed and they have half worn out paint on the lane markings.

Anyways now in the future that the 172 wont be so bold in taking your car on the spot officers also wont be scared to use it on those trouble makers who routinely plug passing lanes and try to slow down the flow of traffic.

Again to all of you that say this law has saved so many lives.

http://www.mto.gov.on.ca/english/safety ... tml#ref_2a

(scroll down to 2.

I like the part where it mentions speed to fast and to fast for conditions accounts for about 160 out of 1200 collisions, and the fact that some almost 500 or just under half this amount occurred under normal conditions.

I also bet Fantino forget last here how high the price of gas was. Maybe that expensive gas had less people on the road.

Well Jim Kenzie already pointed that out to.

http://www.wheels.ca/Columnists/article/494389

Here is another one that discusses these so called "Statistics"

http://www.wheels.ca/Columnists/article/494755

tdrive2 wrote:

If this does get repealed this will make big time news. Well if its gets changed i heard Fantino's time is up soon as this would for sure cook his bacon along with him trying to get rid of a Jury member in his case with those 2 cops. So if this makes news and we find out this law was unconstitutional, etc and the impoundment on the stop was against our code of law then what happens?

The so-far unconfirmed rumour is that Fantino will likely leave the OPP after the 100th Anniversary via retirement. Then he's mused about running for Mayor of Vaughan. The case you refer to was his attempt to remove a JUSTICE from the case, not a jury member. If the law gets struck down or repealed, what will happen? Answer: According to several law experts, not much.

tdrive2 wrote:

So are these people going to get reimbursed?

According to the same law experts, answer: No. Mistake or error by the gov't in passing such a law would not justify massive reimbursement. I had believed otherwise in the past, but apparently that is not the case.

tdrive2 wrote:

Anyways now in the future that the 172 wont be so bold in taking your car on the spot

Um...

tdrive2 wrote:

officers also wont be scared to use it on those trouble makers who routinely plug passing lanes and try to slow down the flow of traffic.

As long as it is on the books, officers can use it. If it is not justified for use against someone who was driving more than 50 km/h over the posted speed limit, it also is not justified against left-lane hogs, no matter how much you dislike them.

tdrive2 wrote:

If this does get repealed this will make big time news. Well if its gets changed i heard Fantino's time is up soon

The law was not put into affect by Fantino, but by "your" elected government period.

Fantino has been an excellent leader for us. The most important thing is he supports the very front line officers that work day/night.

Correct but i was referring to using the law in general for other things it has and not just using 172 for 50 over.

Using 172 would not make a difference whether or not it included impoundment on the stop.

I was just saying if this law was not so "bold" or extreme to impound your vehicle officers may begin to use this law for other things as i described earlier.

I am sure there is alot of cops that do not like this law and instead will reduce a 50 over to 49.

I dont have a big comment on the impoundment. I dont have a problem with 172.

Although i feel on alot of our 400's the speed limit is set artificially low and no one or the flow of traffic actually travels at this speed.

For example a limit of 120 when people go 120-130 and impound at 170 does alot more to catch real speeders than a limit no one listens to at 100 km/hr when everyone goes 120-130, but not just 20-30 over the flow of traffic will get your car on a tow truck.

Atleast in the city people are usually within the limit to maybee 15 over. I dont really say most people go 15 over on city streets posted at 50,60,70.

But there has been many times i have been on a 400 series highway where most cars are going between 120-140. Which would be 20-40 over MAX posted limit.

I have been on the 401 many times and the flow of traffic is 130.

I almost have NEVER seen this happen on most city streets posted at 40,50,60,70.

hwybear wrote:

tdrive2 wrote:

If this does get repealed this will make big time news. Well if its gets changed i heard Fantino's time is up soon

The law was not put into affect by Fantino, but by "your" elected government period.

Fantino has been an excellent leader for us. The most important thing is he supports the very front line officers that work day/night.

I understand bear.

I said this because he was one of the big voices the province saw on the Media as the person who had this law.

He is not 100 % responsible but the general public tends to associate him with this new law.

When they find out this law was unconstitutional because of the impoundment they are very likely to point the finger at him.

of course the MTO, McGunity, etc had something to do with it but i believe the general public will look at him if this law is changed and it makes the news.

tdrive2 wrote:

Again to all of you that say this law has saved so many lives.

http://www.mto.gov.on.ca/english/safety ... tml#ref_2a

(scroll down to 2.

I like the part where it mentions speed to fast and to fast for conditions accounts for about 160 out of 1200 collisions, and the fact that some almost 500 or just under half this amount occurred under normal conditions.

This is 2004 stats which is pre 172 days....I know for a fact those stats are incorrect.

(IE: I only indicate "driving normal" on maybe 1 in 20 collisions, I am not lazy and actually read all the choices to consider, rather than just checking off the first box)

I had to use the 2004 cause the other ones don't have it in there.

Is there any way to view the OPP's actual stats or records?

Only the MTO site seems to have these kind of statistics.

I wouldn't even know how to find last weeks stats, much less last year or the year before.

Maybe under the OPP main website, the annual report 2008/2007

http://www.opp.ca/Intranetdev/groups/pu ... 002587.pdf

It just does not make a difference to me, calls will happen no matter how many stats there is. Just can't have common sense on the highways by the drivers

Radar Identified wrote:

tdrive2 wrote:

So are these people going to get reimbursed?

According to the same law experts, answer: No. Mistake or error by the gov't in passing such a law would not justify massive reimbursement. I had believed otherwise in the past, but apparently that is not the case.

It is better, more efficient, feels much better, and costs less taxpayers' money to bail out an automaker or two . Both sides, McGuinty's Liberals and Harper's Conservatives are doing it.

Seriously though, 172 has some great stuff in it, although only speeding and squealing/spinning tires are enforced.

My take on the law:

Speeding: Why a new law to govern something that is already there? 128 already has ample penalties for speeding. Re-vamp that instead, increase penalties, etc.

Spinning tires: I spun tires on a green light on my car couple days ago. It was raining though. Does that make me a stunt driver? Most would agree not.

Squealing tires: There is a bylaw in (I believe) almost every town that prohibits doing that. There is one in Guelph, that's for sure. Again, why a new law when there already is a regulation in place?

Spinning doughnuts can be considered as having control over a car. It is thought that having a person (young driver) spin some doughnuts on an empty parking lot, in order to learn how the car behaves when it is spun so, increases awareness of what to do when in a similar situation, such as spinning on ice, etc.

Driving with a person in the trunk: what if the dude is incapacitated (too drunk) to be placed elsewhere? Had that happen once to a friend, he "blew" (the doctor plugged a test tube in his mouth) 0.8+ in the hospital (yes, over 10 times the legal limit). He dislocated his arm falling down the stairs, and we had to rush him to the hospital, though he can't remember it... 4 people to carry the guy, including a DD, no space in the car: to the trunk he goes. Before the 172 came into effect.

What about those who speed up when being overtaken? Way more risk in doing that than in someone doing 30 instead of 20 while making a right turn and sqealing tires a little. What was the last time someone got ticketed for doing that? This must happen on the 400-series quite often, at least I see that a fair bit.

Anyone hear the news of a 15-year old Korean punching a bully twice his size in the nose, drawing blood, and being charged with assault? One more example of the ridiculousness of the current situation. We are accepting the laws that are meant to protect us, but they are doing us, as Russians like to say, a "Bear Service" (I was told an old Russian story about a circus performer/trainer who had a pet bear. One day the bear decided to swap the fly of the trainer's forehead while the poor chap was sleeping. You can figure out the rest). The wimps get wimpier, the crazy - crazier.

We forgot to defend ourselves with what we got, and we letting someone else do it for us. Your property is being ransacked? Wait for the cops, don't fire shots in the air or in the general direction of the robber, else you will be charged with attempted murder. You are being beaten by a bully? If you have a black belt, under no circumstance can you use that roundhouse kick to knock some sense into the bully, else you will be charged with use of deadly force in aggravated assault. In other words, victims that fight back are no longer victims but assailants. Funny how things change roles. All in a desire to create a nanny state. Why not vote in a Communist Party next election with the same result of a nanny state? It will even look for jobs for you ...

The lawmakers went through the list of all that can be potentially dangerous and outlawed that, but they forgot that you need to blast some dynamite to make a tunnel. And dynamite is very dangerous, when wrong/dumb people use it. But Niagara Falls power plant would have been quite impossible without it.

Here, here Racer.

And if someone breaks into my house they better be a whole lot bigger then me. And the cops are going to need the rubber gloves too.

Reflections wrote:

Here, here Racer..

thumbs up! (we need more smilies)

I see so much of this type of thing you mention (nanny state) Racer. I have seen so much whinning, sniveling, etc of everyone for anything....how many protests do you see, everyday there is a protest. We have rights groups out our @$$. We have inquires out our butt too. Criminals have more rights than the victims. Why do people make up excuses, rather that accept the consequences? Think the excuses and people not being prosecuted leads to more laws and we become overburdened by stuff.

Nicely said, racer.

Although one update: The York Region Police are now recommending to the Crown that they drop the charge against the 15-year-old boy who punched the bully in the face. That kid should never have been charged in the first place. The school board also really screwed that one up.

http://www.thestar.com/news/gta/article/630369

As for Fantino.. Ever since the very idea of Bill 203 came out, he started chasing cameras to find every opportunity to advance his future political career by being out there in the media. That's in addition to having been involved in scandals both in Toronto and at the head of the OPP. He's also been going after the underlings who dared to speak out against him. Don't forget that we're dealing with the guy who said

a problem is now arising where portions of the public believe that Dundas Square is a public space.

A person like that shouldn't have been given the responsibility of a PC, not to mention running the whole show for Ontario.

That there "racer" has an edumacation.......yup, gone done and graduated right outta grade skool....he sure is smart, S, M, R, T.......smart.

FiReSTaRT wrote:

As for Fantino.. Ever since the very idea of Bill 203 came out, he started chasing cameras to find every opportunity to advance his future political career by being out there in the media..

I don't think it was a bad thing to get right out front and centre with the media in regards to Bill 203. The gov't did not say much, so Fantino did...at least the message got out.

Now, if ONLY that similiar type of thing would have happened with the MOVE OVER LAW when it first came out......in 2002.

We have a move over law?