Case Law Update

Lawman
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by: Lawman on
Fri Jul 10, 2009 2:13 pm

And the dumbass award goes to... JP M. Coopersmith


http://www.canlii.org/eliisa/highlight. ... cj153.html

"The police officer was asked why he chose to charge the defendant under s.172, as opposed to s.128 of the HTA, given that speeding was the only driving action the officer observed. He responded that the defendant’s vehicle was rocketing past other vehicles and the defendant’s driving conduct would fit many different categories, such as performing a stunt, speeding, disobeying an official sign, perhaps even careless driving, but based on the circumstances, the s.172 charge was appropriate at that time."

I say;

If the driver was going 50 kph over the speed limit under s. 128 they would still be rocketing pass those doing the speed limit.

JP says;

"I know of no single offence which is categorized simultaneously as both a strict liability and an absolute liability offence."

I say;

That's because it's not permitted.


JP says;

"Furthermore, although not determinative in and of itself, when viewed within the regulatory pattern of the HTA, the fact that s.128 falls under Part IX – Rate of speed, whereas s.172 is within Part X – Rules of the Road, serves, in my mind, to reinforce the Legislature’s intention to distance and distinguish an offence under s.172 from one of speeding under s.128."

I say;

Rates of speed are also rules of the road.


JP says;

"With respect to s.172 and the regulations made thereunder, I am of the opinion that there is nothing whatsoever in the scheme of the HTA to indicate that any offences of absolute liability were intended."


I say;

How about the words "is guilty," and how about the licence being suspended on the spot, and how about the car being impounded on the spot?


JP says;

"I find that speeding at excessive rates of speed is a significant risk factor, in and of itself, and is the subject matter of one of many behaviours the legislation intended to capture under s.172, distinct from simple speeding."

I say;

Speeding at any rate of speed over the speed limit is covered under s. 128 and is an absolute Liability offence.

JP says;

"I am satisfied that the Legislature is sufficiently skilled at drawing lines under which a particular offence has not been committed and over which a person may be charged."

I say;

lol

"In my opinion, 50 kilometres per hour or more over the speed limit which defines the performance of a stunt, without any other accompanying hazard, is driving conduct which in and of itself creates a sufficiently significant hazard. "

I say,

Which is why it's an absolute liablty offence with no due diligence excuses permitted.


Decisions to date re: Charter Applications and HTA Section 172 & O.Reg. 455/07



R. v. Araujo, (August 27, 2008), 2008 ONCJ 507 (CanLII), 2008 ONCJ 507 (Ont. C.J.), P. MacPhail J.P., (Burlington)

R. v. Piette, (September 17, 2008), 2008 ONCJ 466 (Ont. C.J.), D. Doelman J.P. (Napanee)

Muskoka (Dist. Municipality) v. Luo, (October 2, 2008), 2008 ONCJ 478 (Ont. C.J.), S. Evans J.P. (Bracebridge)

R. v. Mongeon, (October 10, 2008), 2008 ONCJ 562 (Ont. C.J.), N. Ross J.P. (Sudbury)

R. v. Almeida, (November 13, 2008), [2008] O.J. No. 4962; 2008 ONCJ 631 (Ont. C.J.), M. Barnes, J.P. (Caledon)

R. v. Bell, (December 8, 2008), [2008] O.J. No. 5585; 2008 ONCJ 726 (Ont. C.J.), I.S. Chandhoke J.P. (Toronto)

R. v. Bond, (December 10, 2008), [2008] O.J. No. 5582 (Ont. C.J.), J. Desjardins J.P.

R. v. Brown, (January 19, 2009), 2009 ONCJ 6 (CanLII), 2009 ONCJ 6 (Ont. C.J.), M.A. Cuthbertson J.P. (Owen Sound)

R. v. Sgotto, (February 17, 2009), 2009 ONCJ 48 (CanLII), [2009] O.J. No. 647; 2009 ONCJ 48 (Ont. C.J.), M. Frederiksen J.P. (Wasaga Beach)

R. v. Venckus, (March 23, 2009), [2009] O.J. No. 1307 (Ont. C.J.), J. Creelman J.P. (Caledon)


Lawman
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by: Lawman on
Fri Jul 10, 2009 2:28 pm

Dumbass Award goes to JP Michael Frederiksen

http://www.canlii.org/en/on/oncj/doc/20 ... ncj48.html

The intent, wording and structure of the provisions of S. 172 of the Highway Traffic Act make the offence one of strict liability.

I say;

Since when do the words "an intention to" create a strict liabiltiy offence?


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by: Lawman on
Fri Jul 10, 2009 2:48 pm

More oversights by the great Dalton McGuilty.

Under s. 128, if you get caught speeding 50 kph over in a community safety zone or construction zone, you pay double the fine set out in clause 128 (14) (d) for each kilometre per hour that was driven over the speed limit.

If you get caught 50 kph over under s 172, you don't pay double.

The title heading of s. 214.1(7) refers to the "racing," which does not include going 50 kph over the speed limit. Going 50 kph over the speed limit under s. 172 is considers a "stunt."

Racing is defined under Part I (Definition, “race” and “contest”) not under Part III (Definition, “stunt”) of Regulation 455/07.

Section 214.1(7) only includes a community safety zone as well, they forgot to include a construction zone.

Penalty for speeding in community safety zone

214.1(6) Every person who commits an offence under section 128 in a community safety zone when it is in effect is liable, on conviction, not to the fines set out in subsection 128 (14), but, where the rate of speed at which the motor vehicle was driven,

(a) is less than 20 kilometres per hour over the speed limit, to a fine of double the fine set out in clause 128 (14) (a) for each kilometre per hour that the motor vehicle was driven over the speed limit;

(b) is 20 kilometres per hour or more but less than 30 kilometres per hour over the speed limit, to a fine of double the fine set out in clause 128 (14) (b) for each kilometre per hour that the motor vehicle was driven over the speed limit;

(c) is 30 kilometres per hour or more but less than 50 kilometres per hour over the speed limit, to a fine of double the fine set out in clause 128 (14) (c) for each kilometre per hour that the motor vehicle was driven over the speed limit; and

(d) is 50 kilometres per hour or more over the speed limit, to a fine of double the fine set out in clause 128 (14) (d) for each kilometre per hour that the motor vehicle was driven over the speed limit.

Same, construction zone

(6.1) Every person who commits an offence under section 128 in a community safety zone, when it is in effect, that is also a construction zone designated under subsection 128 (8) or (8.1), when there is a worker in the construction zone, is liable, on conviction, to the penalties set out in subsection (6) and not to an additional penalty under subsection 128 (14.1). 2005, c. 26, Sched. A, s. 32 (2).

Penalty for careless driving or racing in community safety zone

(7) Every person who commits an offence under section 130 or 172 in a community safety zone when it is in effect is liable, on conviction, not to the penalty set out in those sections, but to a fine of not less than double the minimum fine set out in those sections and not more than the maximum fine set out in those sections or to imprisonment for a term of not more than six months, or to both, and in addition his or her licence or permit may be suspended for a period of not more than the maximum period for which his or her licence could be ordered suspended by a court under section 130 or 172, as the case may be. 1998, c. 6, s. 1; 2007, c. 13, s. 23.


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by: Squishy on
Fri Jul 10, 2009 3:49 pm

I don't think the semantics of the heading matter. "Every person who commits an offence" would be all-inclusive. Now if it read "Every person who commits an offence under section 130, or an offence of racing under section 172, in a community safety zone when it is in effect..." then you would be off the hook for 50-over.
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by: Lawman on
Fri Jul 10, 2009 5:28 pm

I know this and I agree. I was just pointing out the oversight. They wrote the law and can't even get the heading correct.

Subsection (7) also adds an additional penalty, as your permit can also be suspended.


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by: Squishy on
Fri Jul 10, 2009 5:58 pm

Who words these things? Is it just carried over from the proposal, or is there some guy who spends his life writing the HTA?

Sounds like someone got carried away with the media hype over our new "street racing" law. Then again, what should 172 be called? The "racing/stunting/wager" law?

Looking at subsection (1), I don't even think the commas are in the right place:
"No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager."

To me, that says "No person shall drive...in a race or contest while performing a stunt, and no person shall drive...in a race or contest on a bet or wager." So stunts are okay unless there is racing involved? And racing is okay unless you perform a stunt or exchange money? (Excluding other laws like 128, of course)

"No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt, or on a bet or wager" looks correct to me - this prohibits racing, stunting, and driving on a bet (what?). It goes against a few journalistic style guides on lists and commas, but I think technical documents need to be clear.
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by: Lawman on
Fri Jul 10, 2009 6:58 pm

Everything about s. 172 is flawed.

And getting back to s. 214.1(7) for a second, if you drive a car with someone in your trunk under s. 172 you get a minimum $2,000 fine.

If you do it in a community zone, you get a minimum $4,000 fine under s. 214.1(7).

Complete comedy.

So if you do it on the 401 at 110-150kph (high speeds) you get a $2,000 fine.

Do it in a community zone with at 40-50kph (low speeds) you get a $4,000 fine.


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by: server on
Wed Jul 22, 2009 11:17 pm

Lawman wrote:Everything about s. 172 is flawed.

And getting back to s. 214.1(7) for a second, if you drive a car with someone in your trunk under s. 172 you get a minimum $2,000 fine.

If you do it in a community zone, you get a minimum $4,000 fine under s. 214.1(7).

Complete comedy.

So if you do it on the 401 at 110-150kph (high speeds) you get a $2,000 fine.

Do it in a community zone with at 40-50kph (low speeds) you get a $4,000 fine.

About a year ago, I was pulled over for speeding. I could swear I was not going any faster than the flow of traffic. There was one point where I utilized my vehicles' lower gear (floored pedal) in order to pass another vehicle in the passing lane. Still nowhere near the speed the officer says he clocked me in rush hour traffic! After some back and forth talk, the officer decided to impound and ticket me with s.172 INSTEAD of s.128!?!

My mouth dropped, and there I was stranded with no where to turn for help. I had to walk about 20mins to the nearest ATM and them walk all the way back to the nearest bus shelter and wait an hour to catch the wrong bus, and long story short, I got home 5 hours late, missed several appointments, and felt like *EDIT*.

Some Facts:

Lidar Setup: Stationary Tripod mount - SpeedLaser (on Grass with trees nearby) and right next to bus shelter, signage.
Officers Present: 4 or more (Police Training? - according to officer "NO")
Weather: Clear, Sunny, about 30C
Road: 5 - 10 degrees grade slope
Traffic: Medium


I've been following these threads for a while, and now soon my trial set to happen. Thanks to some great input from these forums, I was able to build the best possible deffence against the crowns case...


If there is any suggestion not already mentioned by Lawman, feel free to chime in. Does anyone know off hand was the procedure is in qualifying expert witnesses? How much time is needed to disclose to the prosecutor that a witness will be introduced to give evidence on my behalf.

Any info would be great.


Thanks again to everyone!


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by: server on
Tue Aug 11, 2009 5:47 pm

Does anyone know where Mr. Lawman went? He disappeared!
Perhaps they impounded his computer for stunt posting? ;)

I filed a charter application and the crown submitted his factum.
I want to know if a 'counter factum' should be filed? I read his
factum but it seemed a bit skewed in his favor even though they
are supposedly facts about law etc...


any help would be great!


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by: Radar Identified on
Tue Aug 11, 2009 9:12 pm

server wrote:I want to know if a 'counter factum' should be filed?
Think this is a good question for ticketcombat. Or possibly some others who have real legal experience. From my strictly layperson's perspective (defended myself twice on traffic tickets, also observed quite a few provincial offences trials), I'd say yes, file a counter-factum... hopefully some others will clarify this.

Also... see my PM.


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