By Keith Leslie (CP) Ã¢Â€Â“ 18 hours ago
TORONTO Ã¢Â€Â” Ontario's controversial street racing law was upheld Thursday in a judgment that largely turned on whether the possibility of jail time for offenders makes it unconstitutional.
Jane Raham, 62, was acquitted of the stunt driving charge last fall. She was clocked going 131 kilometres an hour in an 80 km zone in April 2008 - a 51-kilometre an hour difference that saw her charged under the street racing law.
The lower court found the law unconstitutional because it can impose jail time - up to six months - even though the speeder can't defend against the charges.
On Thursday the Ontario Court of Appeal disagreed, ruling there is a defence open to drivers charged under the law.
The debate over the jail-time provision in the law had one expert questioning why the province just doesn't remove it.
It's more of a threat than an actual penalty, said Toronto criminal lawyer James Morton, who added he couldn't find any cases of someone being sent to jail for stunt driving.
"It's used so rarely that the legislation wouldn't really lose any teeth if you simply removed it."
Transportation Minister Kathleen Wynne said she was "very happy" that the Appeal Court had confirmed the law. She wouldn't say if the province would consider dropping the possible jail terms to make the law more palatable for the courts.
"I'm not going to comment on those specifics," Wynne said in an interview.
"What we know is that the Court of Appeal held that the motorist could commit the offence of stunt driving simply by speeding in excess of 50 kilometres an hour."
The Appeal Court, in quashing the lower court's decision, ordered a new trial for Raham, who lives in Oakville, Ont.
"Fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised," the three-judge panel wrote in its decision.
A due diligence defence amounts to a claim that the defendant took all reasonable care to avoid committing the offence.
The lower court interpreted the stunt driving law to be an absolute liability offence, under which no defence can be raised.
The Appeal Court disagreed Thursday, ruling it is a strict liability offence under which the due diligence defence can be brought.
The law also calls for fines ranging from $2,000 to $10,000, the seizure of the vehicle and a licence suspension of up to two years after a first conviction.
Raham has 60 days to appeal the decision to the Supreme Court of Canada, and Morton thinks leave to appeal "probably would be granted" by the high court.
"There's a good shot that the Supreme Court would consider this case," he said.
The stunt driving law was declared unconstitutional by another judge in a separate case last fall.
A Newmarket judge dismissed stunt driving charges against Alexandra Drutz, an 18-year-old woman charged with going 157 kilometres per hour on Highway 407 north of Toronto.
Justice Peter West ruled, as did the lower court in Raham's case, that having a potential penalty of up to six months violates the Charter of Rights because the law does not allow the accused to present a defence.