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JP rules - HTA172 violates the charter
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PostPosted: Tue May 05, 2009 8:55 am 
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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, Ontario’s 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? “I’m sorry.”

The Ontario Provincial Police certainly isn’t 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 law’s 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 province’s 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 Ontario’s 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 isn’t 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 who’s rushing home? Their infraction—plain old speeding—is already covered in the Highway Traffic Act, and the maximum penalty isn’t anywhere near prison. “At 49 km/h over the speed limit, you’re a member of society and you’re welcome to live amongst us,” says Gary Parker, a paralegal who has represented dozens of drivers netted by the new law. “At 50 over, you’re 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—can’t 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 can’t 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. Maclean’s 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 man’s 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 Waugh’s opinion or ignore it. However, two similar cases have already been appealed to a provincial judge, and as the legal arguments creep toward the country’s highest courts, the results may force the Ontario government to raise the checkered flag. “If you’re using a highway as your own personal racetrack, that’s criminal,” Starkman says. “But if all you’re doing is speeding, then you should be charged with speeding.”


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PostPosted: Tue May 05, 2009 10:33 am 
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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.


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PostPosted: Tue May 05, 2009 10:48 am 
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^^^^ 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


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PostPosted: Tue May 05, 2009 12:24 pm 
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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.


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PostPosted: Tue May 05, 2009 12:39 pm 
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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.

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PostPosted: Tue May 05, 2009 12:49 pm 
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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....... :D :D :D

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PostPosted: Tue May 05, 2009 1:19 pm 
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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


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PostPosted: Tue May 05, 2009 2:47 pm 
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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.


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PostPosted: Tue May 05, 2009 3:24 pm 
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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

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PostPosted: Tue May 05, 2009 5:36 pm 
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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.

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PostPosted: Tue May 05, 2009 6:57 pm 
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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?


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PostPosted: Tue May 05, 2009 9:10 pm 
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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.

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PostPosted: Tue May 05, 2009 10:03 pm 
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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.

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PostPosted: Tue May 05, 2009 10:17 pm 
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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.


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PostPosted: Wed May 06, 2009 8:00 pm 
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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 2.8)
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


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