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Ontario Highway Traffic Act

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PostPosted: Thu Sep 11, 2008 11:10 pm 
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Radar Identified wrote:

All of this "stunt driving" or "racing" was already against the law before Bill 203. The penalties available for driving, say, 160 on the 401 were reasonable enough under the HTA. For dangerous driving (example: 238 in an 80 on Highway 26), and for street racing, there was section 249 of the Criminal Code... and still is. And the Criminal Code has much more severe penalties than the HTA, IMO, but the penalties there are imposed after conviction.


These laws are still in place, they also have a poor conviction rate, and a poor source of renvenue,where 172 is a cash cow and has a 99.98% conviction rate before any trial, just with the licensing reinstatement TAX alone it brang in bag full of cash containing $150.00x 11000 =$1,650,000 gross!

You get my vote HB, you're the only honest one on the card :D

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PostPosted: Fri Sep 12, 2008 1:12 pm 
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hwybear wrote:
Charge as normal at roadside....go to court.....when conviction registered 30 day suspension on 1st offence and $2000, 90 day on 2nd offence and $5000, 1yr on 3rd offence and $10000.


Yes! First the charge, then the trial, then the conviction, then the penalty. That's how a just system works. And the severity of the penalty should reflect society's distaste for the offence. (Personally, I think the penalties HB suggests are on the light side.)
-- The problem with 172 is that the sloppy, emotional thinking behind it not only pemits but invites emotional interactions at the roadside between law officers and the public, and the massive dollar profits -- to towtruck businesses, to impoundment operators, even to the provincial government itself -- from the whole tawdry business only make it more distasteful.
-- If an offender appears to have done something so serious that he needs to be removed from the highways immediately, suspend his licence and/or arrest him under non-172 provisions of the law and let the courts deal with him in due course. But this pernicious nonsense that allows arbitrary seizure and impoundment should have no place in our country, let alone in our province.


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PostPosted: Fri Sep 12, 2008 11:20 pm 
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Proper1 wrote:
-- If an offender appears to have done something so serious that he needs to be removed from the highways immediately, suspend his licence and/or arrest him under non-172 provisions of the law and let the courts deal with him in due course. But this pernicious nonsense that allows arbitrary seizure and impoundment should have no place in our country, let alone in our province.


It's really a shame,nickel grabbing politicians don't see it like that!
I purchased a book last week, titled "Street Racing" by John Newell
It's well worth the 20 bucks, straight up and no BS!

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PostPosted: Wed Oct 01, 2008 2:42 pm 
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I have been so busy, 7 day, double shifts on the back end, and it's going to get worse in the next few weeks :cry:
I am out of touch ATM!

http://www.metronews.ca/toronto/Local/article/119233

http://www.thestar.com/News/Ontario/article/508521
And then this was published the next day By the Star
http://www.thestar.com/News/Ontario/article/508609
Go figure eh :shock:

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PostPosted: Wed Oct 01, 2008 9:16 pm 
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Just lower all the governed speeds in vehicles and will not have these issues to this extent! Put them all at 130km/hr.

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PostPosted: Thu Oct 02, 2008 9:40 am 
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hwybear wrote:
Just lower all the governed speeds in vehicles and will not have these issues to this extent! Put them all at 130km/hr.

With respect, HB, the opposition to this legislation (172) and the way it's being used isn't about the targeting of drivers who really do drive at wildly excessive speed (or commit other nuisances) on public roadways. To focus on that is to miss the point. Those people deserve what they get when they are tried and convicted in court under our time-tested and proven laws. The public opposition is to the summary roadside "trials" under 172 with instant and vicious financial penalties assessed moments after the charge is laid -- particularly if the charge is for "stunt driving" (however it may be defined at that place and at that moment) -- with no further trial on that point or right to appeal against the "conviction" and penalty. All of this happens long before the substantive case even gets to court, if it ever does. Any law that can be used that way is a bad law.


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PostPosted: Thu Oct 02, 2008 11:16 am 
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Well said, Proper1. A lot of people I know who are opposed to this law have never driven at excessive speeds, raced another vehicle or done anything of the sort. A couple of them regularly drive the speed limit or just below it. Whether you've done anything wrong or not doesn't matter under this law. On top of that, some tow operators have been gouging and extorting the people who got their cars impounded.

One ridiculous example occurred around Muskoka. A driver got his car impounded for stunt driving. THE NEXT DAY the Crown dropped the charge, but his car still had to stay in the impound lot for six more days. Imagine if that happened in a CC case. "We're dropping the charge but we're going to keep you in the Don Jail for another week."

To prove the point, another poster suggested this on the Toronto Star's website, and it was something like this: Why not go across the board? Punishment regardless of innocence! If you get arrested for assault, shoplifting or any other Criminal Code offence, automatic five years in jail, no bail hearing or anything, and THEN we'll have a trial, followed by your actual sentence for the offence. Innocent? Well, too bad, we have to stop crime some how, and you'll get your freedom back eventually.

When you start making up laws like this, at what point do you stop?


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Jim Kenzie will you adopt me please!
PostPosted: Sat Oct 04, 2008 4:56 pm 
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http://www.wheels.ca/articlecategory/ar ... 9#Comments

Boooya!!!!!!!!!!!

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PostPosted: Sun Oct 19, 2008 12:15 pm 
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hwybear wrote:
I do not know about the punishment before the conviction that you mention. This has been done for years on different charges (ie 90 day ADLS of a licence and not yet convicted of an impaired, CMV Impoundment as well for "x" number of days). Further, many people are out on "bail" (keep it simple) with conditions, and yet no conviction yet.

Having all that behind us, I certainly respect others point of view, and can appreciate the concern.


The 90 day suspension can be appealed; the s. 172 suspenson and impoundment cannot. Ever. There's the difference.

But the 90 day suspension has fatal flaws, too. However, no one has argued them yet.


Sections 48.3(1), (2.1) and (3) expressly states;

Suspension of licence, alcohol testing

48.3(1) Where a police officer is satisfied that a person driving or having the care, charge or control of a motor vehicle or operating or having the care or control of a vessel meets one of the criteria set out in subsection (3), the officer shall notify the Registrar of that fact, or cause the Registrar to be so notified, in the form and manner and within the time prescribed by the regulations.

No right to be heard

48.3(2.1) A person has no right to be heard before or after the notification by the officer, or before or after the Registrar suspends the licence, but this subsection does not affect the taking of any proceeding in court.

Criteria

(3) The criteria for the purpose of subsection (1) are:



2. The person failed or refused to provide a breath or blood sample in response to a demand made under section 254 of the Criminal Code (Canada).


Section 50(1) expressly states;

Appeal of ninety-day suspension

50.1(1) A person whose driver’s licence is suspended under section 48.3 may appeal the suspension to the Tribunal.

Grounds for appeal

(2) The only grounds on which a person may appeal under subsection (1) and the only grounds on which the Tribunal may order that the suspension be set aside are,

(a) that the person whose licence was suspended is not the same individual to whom a demand for a sample of breath or blood was made, or from whom a sample of breath or blood was taken, as the case may be, under or pursuant to the provisions of the Criminal Code (Canada) referred to in subsection 48.3(3); or

(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) to provide a sample of breath or blood because he or she was unable to do so for a medical reason.


First, s. 48.3(3)2, states an accused licence will be suspended if they failed or refused to provide a breath or blood sample in response to a demand made under section 254.

Then, s. 50(1) contradicted s. 48.3(3)2 by stating an accused can appeal if they meet the criteria in 50(2)(b), i.e., failed or refused to comply with a demand made under section 254 of the Code to provide a sample of breath or blood because he or she was unable to do so for a medical reason.

However, the Criminal Code provides statutory defences.

Code s. 254(5) expressly states;

Failure or refusal to comply with demand

(5) Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.


Thus, Code s. 254(5) permits an accused the right to fail or refuse to comply with a demand provided they have a reasonable excuse. The reasonable excuse could be anything deemed reasonable, it does not have to be a medical reason as s. 50.1(2)(b) claims, thus, both HTA ss. 48.3(3)2 and 50.1(2)(b) are deemed inoperative and of no force and effect due to federal paramountcy.


Moreover, s. 48.3 is unconstitutional and must be severed in its entirety from the Act.

Before s. 48.3 is triggered the police must have authority in law to stop the vehicle. Then s. 48.3 relies upon Code ss. 254 and 256. Section 254 articulates the police must have reasonable grounds to demand a breath test. Reasonable and probable ground bears a standard of proof and a burned of proof. The Charter applies to the Provincial government and the Ministry of Transportation is an agent of the government to where the Charter applies. The Province has not included the notwithstanding clause in s 48, thus, in accordance with the principles of fundamental justice, which includes natural justice and due process, sanctions of any nature cannot be imposed until the Province has discharged their burden of proof.

Therefore, the province fails to; (a) initiate a hearing and discharge its burden that the police had reasonable and probable grounds to demand a breath test, and (b) fails to meet the standard of proof required, which is reasonable doubt.

On its face, s. 48.3 improperly attempts to place a reverse burden on the accused to prove his innocence, which also violates the Charter.

To enforce 48.3, Code ss. 254 and 256 is triggered. The Code is federal legislation. The Canadian Bill of Rights applies to federal legislation and is independent of the Charter. Section 48.3 also offends ss. 1(a), (b), 2(b), (e), and (f) of the Canadian Bill of Rights and cannot be saved.

Importantly, the Licence Appeal Tribunal (LAT) hears appeals under s. 48.3. Since the government has not properly discharged its burden of proof to supend someones licence for 90 days, how does the Tribunal manage to confirm and uphold the decisions of the province to suspend someones licence?

How corrupt is the Tribunal and how stupid do they think we are?

Procedural fairness and natural justice are elementary protections designed to prevent the arbitrary exercise of political power, and is fundamental to the rule of law and the common law. To this extent, jurisdictional questions must be answered correctly by the tribunal in order to be acting intra vires during the proceedings on the merits.

The principles of Common Law and Equity apply but the Tribunal fails to require the Province to discharge their burden of proof; yet still manages to issues decisions to the detriment of Ontario citizens and in favour of the Province without anyone noticing their corruptio…errors.

The specialized role and expertise of the LAT is reflected in the powers and duties assigned to the Tribunal pursuant to the Act. Interpreting the HTA falls squarely within the expertise of LAT, who function within the special sphere of the HTA. The LAT is bound to base their decision on relevant considerations, avoid arbitrariness and act in good faith. In this regard, the Tribunal has received 100s of appeals under the Act and issued equally as many orders to date, and, accordingly, has developed an incorrect body of jurisprudence that guides it and functions as a precedent.

This argument is based on the fact that the government has won over 90 per cent of cases decided at LAT hearings despite the Province not providing the accused a hearing to determine if reasonable doubt was present and whether evidence to the contrary exist.

The Tribunal claims it’s independent of the Province yet the field of the administration of Justice rests entire within the exclusive power of the Province under s. 92(14) of the Constitution Act, 1867.

Under the Licence Appeal Tribunal Act, the Lieutenant Governor in Council appoints the members of the LAT and designates the term of their appointment. The Lieutenant Governor in Council appoints the Commissioner and deputy Commissioners of the Ontario Provincial Police. The Lieutenant Governor in Council also appoints the HTA Registrar and Deputy Registrar.

So just how independent of the Province is the LAT?

The Tribunal is Master of its own procedure and Administrative Tribunals are bound by a duty of fairness in deciding upon the rights of an individual. The Tribunal puppets are not immune from liability when acting contrary to law and in bad faith.

Section 5.5 of the Licence Appeal Tribunal Act states;

No personal liability

5.5 No action or other proceeding for damages shall be instituted against any member of the Tribunal or anyone appointed to the service of the Tribunal for any act done in good faith in the execution or intended execution of the person’s duty or for any alleged neglect or default in the execution in good faith of the person’s duty.

When decisions and conduct of the government, Registrar or any employee of the Ministry are not made in good faith they too are provided no protection under the Act.

Section 55(22) and (23) expressly states:

Protection from personal liability

(22) No action or other proceeding for damages shall be instituted against the Registrar or any employee of the Ministry for any act done in good faith in the execution or intended execution of his or her duty under this section or for any alleged neglect or default in the execution in good faith of that duty.

Crown not relieved of liability

(23) Despite subsections 5 (2) and (4) of the Proceedings Against the Crown Act, subsection (22) does not relieve the Crown of liability in respect of a tort committed by a person mentioned in that subsection to which it would otherwise be subject.

There is sufficient proximity between an accused and government by way of the drivers licence to establish a prima facie duty of care, such that the wrongdoer ought to have its victim in mind as a person potentially harmed. A duty to take due care arises when the person or property of one was in such proximity to the person or property of another that, if due care was not taken; damage might be done by the one to the other.

By not providing the accused a hearing to prove the government had reasonable grounds to demand a breath test they have not acted in good faith. The defect goes to the heart of the administrative fairness of the proceeding. Their decision to suspend someone licence for 90 days is also not made in good faith and cannot at anytime be confirmed by the LAT. But it rountinely is.

Thus, ever person who has had their 90 day suspension upheld by the Tribunal has a cause of action not only against the government, but also against HTA Registrar and the Tribunal panel member(s) who made the decision to uphold the Provinces decision to suspend their licence.

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Last edited by lawmen on Sun Oct 19, 2008 10:33 pm, edited 4 times in total.

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PostPosted: Sun Oct 19, 2008 4:52 pm 
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Reflections wrote:
hwybear wrote:
I have heard that also, but have not seen anything in B&W. I heard it was going to be in October and apparently a 320 page document. This info I have was from a local paralegal, who said literally said "I don't have time to read all that BS, as it apparently it is a rights issue and yet driving clearing written is a priviledge".

time will tell!


Driving is a priviledge but you do have the right to your day in court before the sentence is served.


I disagree that it's a privilege.

At law, a driver’s licence is a valid bilateral contract as all five key requirements for the creation of a contract are met. These are offer and acceptance (agreement), consideration, an intention to create legal relations, capacity and formalities. One signs the driver’s licence and pays fees; and should the government breach the contract, it does so at its own peril.

Several sections of the Act articulate that the Crown, Minster, Registrar and other Ministry employees are not relieved of liability for certain conduct. If drving is nothing but a privilege issued at the pleasure of the Province than clauses articulating liability would not be incorporated.

The purpose of the HTA is to ensure the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and that full driving privileges are granted only after new drivers have gained the necessary experience, as articulated under s. 31.

Highways are owned the citizens of Ontario, not by the government of the day. Public parks are also owned by the citizens and you don't required a privilege issued by the government to use them.

As evidenced in regulations 340/94 and 341/94; "privilege" has no bearing on the qualifications required to obtain or maintain a driver’s licence.

The issuance of licences, which, once issued, require special provision to abrogate them and there is neither express provision nor necessary implication to be found permitting the Minister discretion to refuse to issue or suspend a licence when applied for by a qualified applicant. Qualified citizens possess a vested right in a licence not only for pleasure but also for means of survival and out of employment necessity.

The right to travel on roadways existed long before governments and the HTA did. United States case law is common law used in Canada, and several cases in several US states indicates that driving is a right, not a privilege. Those ruling apply in Canada. The HTA mentions the words rights, but I can't find it at the moment. I'll post the section later when I do find it again.

The Supreme Court of Canada has determined the right to circulate in a motor vehicle on the public highway is described as a liberty that is merely a licensed activity subject to regulation and control for the protection of life and property.

R. v. Dedman (1985), 20 C.C.C. (3d) 97 (S.C.C.) p 121

But is this really true. A privilege is something that can be taken away, a right is not. If I have a licence how does it protect life and property?

Most people who get in accidents have a licence.

In order to renew my licence no test is required. I simply give the MTO money to renew and they than claim, ok, you're qualified.

If a driver is the licencee then the MTO is the licensor and they should be held accountable for all accidents their licencee causes. In other words, they are untaking the risk of all damages the driver causes because they are responsible for issuing the licence to only qualified drivers.

I'm also aware of a case in BC where the MTO pulled a guys licence. He say too bad and I'm going to continue to drive, which he did. He was in two accidents without a licence and was never charged. One accident was his fault and one was not.

I can't think of the name of the case, but I will in time, and I'll post it.

The reason they get you to sign your licence is to confirm that you give up your right to drive and accept the privilege of being controlled and regulated by the state.

A horse, goat, donkey, dog and buggy is still permitted to travel on highways without a licence because, as I mentioned previously, driving on roadways existed long before the HTA did. It is defined as a vehicle under the HTA; not a motor vehicle.

“vehicle” includes a motor vehicle, trailer, traction engine, farm tractor, road-building machine, bicycle and any vehicle drawn, propelled or driven by any kind of power, including muscular power, but does not include a motorized snow vehicle or a street car;

Sleigh bells

77. (1) Every person travelling on a highway with a sleigh or sled drawn by a horse or other animal shall have at least two bells attached to the harness or to the sleigh or sled in such a manner as to give ample warning sound. R.S.O. 1990, c. H.8, s. 77 (1).

Penalty

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not more than $5. R.S.O. 1990, c. H.8, s. 77 (2).

You gotta love the fine, not more than a whole $5


Horse-riders, helmets and footwear

104.1 (1) No person under the age of 18 years shall ride or be mounted on a horse on a highway unless that person has and is correctly using the following equipment in the manner that it was designed to be used:


167. Every person having the control or charge of a motor vehicle or motor assisted bicycle on a highway, when approaching a horse or other animal that is drawing a vehicle or being driven, led or ridden, shall operate, manage and control the motor vehicle or motor assisted bicycle so as to exercise every reasonable precaution to prevent the frightening of the horse or other animal and to ensure the safety and protection of any person driving, leading or riding upon the horse or other animal or being in any vehicle drawn by the horse or other animal. R.S.O. 1990, c. H.8, s. 167


173. No person shall race or drive furiously any horse or other animal on a highway. R.S.O. 1990, c. H.8,

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PostPosted: Sun Oct 19, 2008 10:01 pm 
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British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868

http://csc.lexum.umontreal.ca/en/1999/1 ... 3-868.html

Terry Grismer was a mining truck driver who lived and worked in the interior of British Columbia. In 1984, at the age of 40, he suffered a stroke. As a result of the stroke, he suffered from homonymous hemianopia (H.H.), which eliminated almost all of his left-side peripheral vision in both eyes. The B.C. Motor Vehicle Branch cancelled Mr. Grismer’s licence on the ground that his vision no longer met the standards set by the British Columbia Superintendent of Motor Vehicles for safe driving. The Superintendent’s standards require a minimum of a 120 degree field of vision, as compared to the 200 to 220 degree field of vision possessed by the average person. While exceptions are permitted to the 120 degree standard in other cases, people with H.H. always have less than a 120 degree field of vision and are never permitted to drive in British Columbia. These standards were developed by the B.C. Medical Association for the Superintendent and were subsequently adopted by the Canadian Medical Association. The Motor Vehicle Branch applied the H.H. restriction absolutely, permitting no exceptions or individual assessments.

Over a seven-year period, Mr. Grismer tried four times to be reconsidered for a licence. He passed the standard visual test and the 30-minute driving test, and was found by the driving examiner to compensate well for his loss of peripheral vision. However, he was denied a licence on each occasion because he had H.H. and could not meet the absolute 120 degree standard.

Throughout this period, Mr. Grismer continued to drive on private roads at work (where no licence was required) and on public roads. He informed the Motor Vehicle Branch that he would continue to drive on public roads without a licence. Although Mr. Grismer’s licence was cancelled, he was not actually prohibited from driving, so neither the Motor Vehicle Branch nor the police made any serious effort to prevent him from driving. He had two minor accidents, neither of which was caused by his visual impairment. One accident occurred at the mine, when he backed his vehicle into a truck at night, and the other happened in the town of Merritt, when he struck a cyclist who ran a red light and came from the left. The cyclist was found to be at fault.

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PostPosted: Sat Jan 10, 2009 2:25 am 
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http://www.wheels.ca/columnists/article/494389#Comments

Fitting title :)
More from uninformed civilians http://canwest.a.mms.mavenapps.net/mms/ ... ect=342475

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PostPosted: Sat Jan 10, 2009 12:48 pm 
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Meanwhile, showing that the street racing law is a huge deterrent :roll: the Toronto Police caught the driver of a Mercedes-Benz going 231 km/h on the Don Valley Parkway yesterday morning. :shock:

http://toronto.ctv.ca/servlet/an/local/ ... ntoNewHome

The drop in fatalities was continent-wide. Almost everyone I know modified their driving habits because of the gas prices. Professor Grabowski, who was in Kenzie's article, was once quoted as saying: "I would say the majority of fatality decline in the past few years has to be gas prices." (Source: "Drop in driving deaths linked to gas prices," by J. Wingrove, Globe and Mail, Dec. 15, 2008)


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PostPosted: Mon Jan 26, 2009 6:24 pm 
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Radar Identified wrote:
Meanwhile, showing that the street racing law is a huge deterrent :roll: the Toronto Police caught the driver of a Mercedes-Benz going 231 km/h on the Don Valley Parkway yesterday morning. :shock:

http://toronto.ctv.ca/servlet/an/local/ ... ntoNewHome

The drop in fatalities was continent-wide. Almost everyone I know modified their driving habits because of the gas prices. Professor Grabowski, who was in Kenzie's article, was once quoted as saying: "I would say the majority of fatality decline in the past few years has to be gas prices." (Source: "Drop in driving deaths linked to gas prices," by J. Wingrove, Globe and Mail, Dec. 15, 2008)


The real question for this guy, he was driving a twin-turbocharged v12 Mercedes sports car.. WHY ON EARTH DID HE STOP?


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PostPosted: Mon Jan 26, 2009 8:28 pm 
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Slyk wrote:
Radar Identified wrote:
Meanwhile, showing that the street racing law is a huge deterrent :roll: the Toronto Police caught the driver of a Mercedes-Benz going 231 km/h on the Don Valley Parkway yesterday morning. :shock:

http://toronto.ctv.ca/servlet/an/local/ ... ntoNewHome

The drop in fatalities was continent-wide. Almost everyone I know modified their driving habits because of the gas prices. Professor Grabowski, who was in Kenzie's article, was once quoted as saying: "I would say the majority of fatality decline in the past few years has to be gas prices." (Source: "Drop in driving deaths linked to gas prices," by J. Wingrove, Globe and Mail, Dec. 15, 2008)


The real question for this guy, he was driving a twin-turbocharged v12 Mercedes sports car.. WHY ON EARTH DID HE STOP?


Because the radio is faster then any car on the road......still laughing though

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