Court of Appeal Upholds Ontario "Stunt Driving" Law

We reported last November on decisons by Welland and Belleville courts holding the Province's stunt driving laws unconstitutional. In those rulings, Provincial Court Judges aquitted two Ontario drivers of "stunt driving, or driving in excess of 5o kilometres over a posted speed limit:

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.

According to a National Post report, the Court of Appeal for Ontario has overruled this decisions. Holding that the legislation is constitutional, the appellate court has upheld the Province's gross speeding or stunt driving law, and ordered retrial on the charges against one of the acquitted drivers:

...The Court of Appeal decision overturned a lower court ruling that said the stunt driving law was unconstitutional, because one could be convicted simply for speeding more than 50 kilometres over the limit. There was no requirement to prove the driving was part of a race or stunt.

The courts have previously interpreted speeding as an "absolute liability" offence, which means someone charged is not allowed to present a defence. The Supreme Court of Canada has ruled an offence cannot include potential jail time as a punishment when there is no right to a defence.

In its decision, the Ontario Court of Appeal stated that aggravated speeding or stunt driving charges must be treated differently from regular speeding.

A defendant charged with stunt driving will be permitted to present a "due diligence" defence to show that reasonable steps were taken to speed by less than 50 kilometres per hour.

"I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence," wrote Justice David Doherty, with Justices Robert Blair and Kathryn Feldman concurring.

- Garry J. Wise, Toronto

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