Saturday, November 28, 2009

Stunt Driving, Street Justice?

There's an interesting tidbit in this article from the Welland Tribune, calling for a halt to prosecutions under Ontario's street racing law, pending government appeals of two recent Ontario court decisions holding the law to be unconstitutional.

Did you know that over 10,000 people have been charged under this law since it came into effect in 2007? In fact, according to a CBC interview with Inspector Dave Ross of the Ontario Provincial Police, charges to date have actually numbered more than 15,000.

That's an awful lot of so-called "street racing" going on. So much so, I suspect, that many Ontarians might find these statistics rather stretching of credulity.

In his November 19, 2009 ruling in R. v. Drutz, 2009 ONCJ 537, Mr. Justice Peter West was clearly disinclined to legitimize the new statutory approach to gross speeding.

Noting the striking similarities in language between "the usual" speeding offences and the new stunt driving offence, he concluded the new law created an absolute liability offence. Such offenses allow for no defence to be raised.

In view of the very significant penalties applicable under the section, Mr. Justice West ruled the provision unconstitutional:

[33] It is my opinion that the subject matter of the legislation in issue is undoubtedly speeding, which the Court of Appeal has defined as an absolute liability offence. I am bound by that characterization. Further, it is my view that calling the conduct “stunt” driving does not change its characterization – it is still a speeding offence albeit by a different name. There is nothing about the manner of driving 50 or more kilometres above the speed limit in section 3(7) of the Regulations that elevates or differentiates the conduct from the conduct set out in section 128 (a speeding offence).

[47] However, in my view, the combination of section 172 of the HTA and section 3(7) of O. Reg. 455/07 is only open to one interpretation and having regard to my assessment that the conduct described by section 3(7) is an absolute liability offence, the possibility of the imposition of up to six months imprisonment thereby renders this section unconstitutional.
[53] Consequently, section 3(7) of O. Reg. 455/07 is unconstitutional and is of no force and effect. Applying the doctrine of severance, only that subsection need be severed from the Regulations. The charge against Ms.Drutz is therefore dismissed.
For background, here are the relevant extracts from Section 172 of Ontario's the Highway Traffic Act:

Racing, stunts, etc., prohibited

172. (1) 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. 2007, c. 13, s. 21.

Offence

(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition his or her driver’s licence may be suspended,

(a) on a first conviction under this section, for not more than two years; or

(b) on a subsequent conviction under this section, for not more than 10 years. 2007, c. 13, s. 21.

.. Police to require surrender of licence, detention of vehicle

(5) Where a police officer believes on reasonable and probable grounds that a person is driving, or has driven, a motor vehicle on a highway in contravention of subsection (1), the officer shall,

(a) request that the person surrender his or her driver’s licence; and

(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (7) (b). 2007, c. 13, s. 21.

Administrative seven-day licence suspension

(6) Upon a request being made under clause (5) (a), the person to whom the request is made shall forthwith surrender his or her driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, his or her driver’s licence is suspended for a period of seven days from the time the request is made. 2007, c. 13, s. 21.

Administrative seven-day vehicle impoundment

(7) Upon a motor vehicle being detained under clause (5) (b), the motor vehicle shall, at the cost of and risk to its owner,

(a) be removed to an impound facility as directed by a police officer; and

(b) be impounded for seven days from the time it was detained under clause (5) (b). 2007, c. 13, s. 21.

...No appeal or hearing

(13) There is no appeal from, or right to be heard before, a vehicle detention, driver’s licence suspension or vehicle impoundment under subsection (5), (6) or (7), but this subsection does not affect the taking of any proceeding in court. 2007, c. 13, s. 21.

Lien for storage costs

(14) The costs incurred by the person who operates the impound facility where a motor vehicle is impounded under this section are a lien on the motor vehicle that may be enforced under the Repair and Storage Liens Act. 2007, c. 13, s. 21.

Costs to be paid before release of vehicle

(15) The person who operates the impound facility where a motor vehicle is impounded under subsection (7) is not required to release the motor vehicle until the removal and impound costs for the vehicle have been paid. 2007, c. 13, s. 21.

...Intent of suspension and impoundment

(18) The suspension of a driver’s licence and the impoundment of a motor vehicle under this section are intended to promote compliance with this Act and to thereby safeguard the public and do not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 2007, c. 13, s. 21.

Regulations enacted several months after Section 172 was passed, however, broadly expanded the definition of "stunt" under the provision. This significantly extended the new law's reach, to include cases where there was no underlying connection to stunts or racing, at all.

Take a look at subparagraphs 7 and 8, below:

Definition, “stunt”

3. For the purposes of section 172 of the Act, “stunt” includes any activity where one or more persons engage in any of the following driving behaviours:

1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.

2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.

3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.

4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.

5. Driving a motor vehicle with a person in the trunk of the motor vehicle.

6. Driving a motor vehicle while the driver is not sitting in the driver’s seat.

7. Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.

8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,

i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,

ii. stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,

iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or

iv. making a left turn where,

(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;

(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and

(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle. O. Reg. 455/07, s. 3.

Was this anti-racing statute really intended to target people who momentarily speed up to pass large trucks on the highway? That appears to be how the law has been interpreted and enforced by Ontario's police forces.

More from the Tribune on this:
Only two months ago, a Belleville judge threw out a 62-year-old grandmother's conviction on stunt driving charges for the same reason. The woman was clocked at 51 km/h over the limit but she had been trying to pass a large transport as quickly as possible because she was afraid of being trapped in the trucker's blind spot.
But no excuses are allowed under a law that's supposed to curb street racing but somewhere along the way morphed into something else altogether. The government's regulations added after the original legislation was voted on have changed the intent.
It's being applied to all cases of excessive speeding regardless of whether you really were racing or whether you were momentarily thoughtless or just trying to pass a truck. They'd probably charge you even if you had a stuck accelerator.
Clearly, this law was enacted with important and legitimate public interests in mind. Justice West's ruling simply returns the law toward its original intent by imposing reasonable constitutional limits on its scope.

Note that the ruling does not strike Ontario's entire stunt driving law. Rather, it simply severs the gross speeding provision from the regulation, while leaving the balance of Section 172 and the regulations wholly intact.

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