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Written By
Serhiy Senatorov
TRAFFIC LAW Paralegal Services
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Natalie Alcoba, National Post
Published: Wednesday, September 09, 2009

An Ontario judge has ruled that a section of the province's stunt driving law is unconstitutional because it exposes an extreme speeder to a possible jail term, without any ability to defend against it.

The law applies to anyone driving 50 kilometres per hour above the speed limit.

In a ruling delivered Friday in a Napanee courthouse, Justice Geoffrey J. Griffin said someone who is speeding that much cannot advance a "due diligence" defence, and is therefore exposed to a jail term that contravenes the Charter of Rights and Freedoms.

Follow up:

He said there is no issue with the validity of the law's other penalties - automatic driver suspension, immediate impoundments of the vehicle or a minimum fine of $2,000. "The only issue is the possibility of imprisonment for up to six months for an ‘absolute liability'," which is an offence that, once proven by the facts, cannot be defended against.

The decision came in the case of an Oakville grandmother who was found guilty of stunt driving for going more than 50 kilometres above the posted limit while passing a tractor trailer.

Jane Raham, 62, appealed the case to the Ontario Court of Justice, where her lawyer Brian Starkman succeeded in arguing that someone who is speeding 50 kilometres above the limit surely knows it, making it impossible for an accused to argue that he or she took steps to prevent it.

"The way the section is structured a person charged with this offence has no reasonable means by which they can defend themselves," Mr. Starkman said in an interview.

Brenden Crawley, a spokesman for the Ministry of the Attorney General, says the government is seeking leave to appeal the ruling.

"Our position is that the street racing provisions are constitutional and that they are an important public safety initiative," Mr. Crawley said in an email. "We will be seeking leave to appeal the decision of the Ontario Court of Justice. In the interim, people should understand that the street racing provisions are still in effect and police can still lay charges."

In 2007 the Ontario government enacted strict new rules under The Highway Traffic Act that prohibit racing or stunts, defined as a number of behaviours including driving with the intention of lifting wheels off the ground or speeding 50 kilometres over the limit.

Ontario Provincial Police Sergeant Dave Woodford said the ruling has no impact on how police will enforce the law. "It's an individual case," he said. "We're going to still be enforcing the stunt driving legislation, and people will still lose their licence and have their vehicle impounded for the seven days. [It's] business as usual." He said that there has been a "significant reduction" in fatalities on the roads since the legislation came into effect. "Speeding is the number one cause of a lot of our fatal collisions," he said.

According to court transcripts, Ms. Raham was driving an Audi from Kanata, where her daughter had recently given birth to twins, to her home in Oakville on April 28, 2008, when she sped up on Highway 7 to pass a tractor trailer. She was clocked at 131 kilometres an hour in an 80 kilometre zone. She slowed down afterwards to a 110 speed. The judge noted that the police officer testified "that there was nothing unsafe or remarkable about Ms. Raham's lane change, and that the only evidence pertaining to the charge was the speed as indicated on the measuring device." Ms. Raham testified that she usually drives on the less-traveled highway in order to avoid big trucks because they make her uncomfortable.

"If one were asked to describe a stunt driver, the appellant would not immediately spring to mind," Justice Griffin said. He acquitted her of the charges.

Written By
Serhiy Senatorov
TRAFFIC LAW Paralegal Services
Licensed Paralegal

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