Ontario Stunt Driving (Speed Alone) ruled Unconstitutional by Judge Geoffrey J. Griffin.

Update: see previous post.

Ms. Jane Raham, an Oakville, Ontario resident was a proud 62 year old grandparent, of a set of twins that her daughter had given birth to. Ms. Raham’s daughter and grandchildren lived in Kanata, Ontario.

Ms. Raham decided to drive in her Audi A4 motor vehicle from Oakville to Kanata  to visit her daughter and grandkids.

On April 29, 2008 Ms. Raham left her daughter’s residence and began to drive home. Ms. Raham is not a fan of tractor trailers or large trucks, as she has a fear of not being seen in the blind spot of big trucks. and she had had occasion where a truck did pull out into her lane. In order to avoid these big trucks, Ms. Raham decided to travel home on Highway 7, as opposed to Highway 401. It was Ms. Raham’s experience that on Highway 7 she is able to avoid having trucks changing lanes.

The posted speed limit on Highway 7 is 80 Kilometres an hour.

At approximately 11:30 a.m. on April 29, 2008 OPP officer Doolan was also travelling on Highway 7 in his unmarked police vehicle, conducting “traffic enforcement”. Officer Doolan’s vehicle was equipped with a two directional radar unit, known as a Genesis Two.

Officer Doolan noticed the Audi A4 travelling on Highway 7.  At one point, Officer Doolan noticed the Audi passing a tractor trailer at the speed of 131 kilometres an hour and then slowing down, after passing the tractor trailer,  to 110 kilometres an hour.

Ms. Raham in her defence, testified that as she was passing this tractor trailer, it was longer then she thought it was and that the tractor trailer appeared to speed up as she was attempting to pass it. Ms. Raham said “I did our a sort of fear reaction pick up speed to get past him (the tractor trailer) and back into the westbound driving lane”

Officer Doolan began to follow the Audi and at Kaladar, a built-up area on Highway 7, where the speed limit was reduced to 60 km/hr from 80 km/h; it was at this point when Officer Doolan pulled over the Audi (see Kanata to Kaladar) and charge Ms. Raham with speeding (131 km/h in a  80 km/h zone).

Ms. Raham was charged with Stunt Driving and her vehicle was impounded in accordance with section 172(7) of the Highway Traffic Act (for seven days) and her driver’s licence was suspended (for seven days) in accordance with section 172(6) of the Highway Traffic Act.

Ms. Raham decided to fight this ticket for Stunt Driving. Her ticket was scheduled before Justice of the Peace Jack Chiang. Mr. Jack Chiang was appointed as a Justice of the Peace, in the Province of Ontario on May 30, 2007 .  Here is what the Ontario Bar Association had to say about Justice of the Peace Jack Chiang:

“Justice of the Peace Jack Chiang has been a member of the newsroom management team at the Kingston Whig-Standard since 1980. He has gained knowledge of the justice system through a two-and-a-half year assignment as a police and court reporter. Justice of the Peace Chiang has been the chair of almost 50 fundraising campaigns for various organizations including the United Way, the Salvation Army and the Alzheimer Society. He is a member of the Order of Canada. He has a master of arts in journalism and later this month, he will receive an honourary doctor of law degree from Queen’s University. Associate Chief Justice/Coordinator of Justices of the Peace Donald A. Ebbs has assigned Justice of the Peace Chiang to Kingston in the East region”.

At her trial in front of Justice of the Peace Jack Chiang, Ms. Raham’s representative agued that the offence of driving a motor vehicle at a speed of 50 kilometres or more, over the established speed limit, is an “absolute liability offence”  and due to the fact that the penalty provision of section 172 (172.2) of the Highway Traffic Act allows for up to six (6) months imprisonment, the offence violates section 7 of the Canadian Charter of Rights and Freedoms.

The penalty provision of section 172 (Stunt Driving) of the Highway Traffic Act states:

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.

Section 7 of the Canadian Charter of Rights and Freedoms states:

Life, liberty and security of person

7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

Justice of the Peace, Jack Chiang, without outlining his reasons or rationale, ruled as follows on that issue (whether section 172 was an “absolute liability offence”):

On this matter, the court agrees with the Prosecution that the section 172 is a strict liability offence

After dismissing Ms. Raham’s representative’s Charter argument, Justice of the Peace Jack Chiang then considered the evidence given by the Prosecutor, and without commenting in any manner on the evidence given by Ms. Raham or her representative, found her guilty of the offence of stunt driving, by driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit, contrary to section 172 (1) of the Highway Traffic Act.

Justice of the Peace, Jack Chiang reduced the automatic minimum fine, under section 172 (2) of $ 2000.00 to a fine of $ 1,000.00 with the victim fine surcharge, after hearing that Ms. Raham had to hire a taxi from Kaladar to Belleville so she could catch a train to Oakville, as well as paying $75.00 a day storage to the Ford dealer in Kaladar where her Audi had been impounded. In addition to this, Justice of the Peace Chiang heard that Ms. Raham was a divorced, single, retired woman who volunteered teaching adult literacy.

As a result of this ruling by Justice of the Peace Jack Chiang, Ms. Raham’s representative filed a “Notice of Appeal” which stated “Justice of the Peace erred in finding that the section was constitutional under section 7 of the Charter of Rights”.

Justice Griffin heard an appeal under subsection 116 (1) of the Provincial Offences Act in a case called R. v. Raham on July 23, 2009. Jane Raham was convicted by Justice of the Peace, Chiang of Stunt Driving under section 172 of the Highway Traffic Act as defined by Ontario Regulation 455/07 – see Section 3(7):

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.

The Judicial Appointments Advisory Committee (the  JAAC )met 26 times in 2004 to select candidates, conduct interviews and attend to Committee businesses. Over 104 applicants (one of whom was Geoffrey J. Griffin ) were interviewed by the Committee and the Committee recommended 35 (Geoffrey J. Griffin was one of the 35) from which the Attorney General of Ontario selected Geoffrey J. Griffin and 14 other judges that year. Geoffrey J. Griffin was appointed a judge by the Attorney General effective September 8, 2004.  See the 2004 Annual Report by this Advisory Committee.

On July 23 , 2009 in a Napanee Court of Justice, Judge Griffin heard the appeal.  On September 4, 2009 he rendered his decision orally.

Upon reviewing the facts of the case, Judge Griffin stated “If one were asked to describe a stunt driver, the appellant (Ms. Jane Raham) would not immediately spring to mind”.

Judge Griffin then spoke to the issue at hand. Judge Griffin stated “The issue to be determined is  whether the offence of stunt driving, as defined by section 3(7), Regulation 455/07 is an absolute liability offence or a strict liability offence. Counsel for the respondent, in a very fair manner, provided at paragraph 34 of the respondent’s factum,

“The respondent would respectfully submit and take the position that is\f this Honourable Court is of the view
that the offence of stunt driving under section 172(1) of the Highway Traffic Act as defined by
section 3(7), of Ontario Regulation 455/07 is an offence of absolute liability, then this offence cannot be
saved by section 1 of The Charter as a reasonable limit on the appellant’s rights under section 7 of the
Charter“.

Judge Geoffrey J. Griffin carefully analyzed and reviewed the legislation at hand and whether or not,  “speed alone” , in a stunt driving offence, fell under the offence of strict liability or absolute liability, given the language of the legislation, the fact that one could spend up to six (6) months in jail upon conviction and the law surrounding.

He noted that in a strict liability offence, due diligence could be advanced as a valid defence; but that speeding, 50 km/h or greated really had no due diligence defence available to the defendant. He also noted that the language found in section 3(5), 3(6) and 3 (7) within Ontario Regulation 455/07 is language that is consistent with an absolute liability offence.

Judge Griffin found that Stunt Driving under Section 172(1) of the Highway Traffic Act, as defined by section 3(7) of Ontario Regulation 455/07 is an Absolute Liability Offence that cannot be saved by section 1 of the Charter of Rights and Freedoms. He found that Section 3(7) of the Ontario Regulation 455/07 is unconstitutional as it creates an absolute liability offence which one can be imprisoned for six (6) months, contrary to section 7 of The Charter of Rights and Freedoms. See the ruling was made by Judge Geoffrey J. Griffin in the Napanee Ontario Court of Justice on September 4, 2009.

As one would expect,  the Attorney General of Ontario announced that he will appeal Judge Geoffrey J. Griffin’s decision in R. v. Raham.

The Stunt Driving law (Safer Roads for a Safer Ontario Act ) was enacted on September 30, 2007 and modified the definition of  “street racing” to include, “driving a motor vehicle at 50 km/h (or 31.0686 miles per hour) or more,  above the posted speed limit” (see Ontario Regulation 455/07). To convict someone of Stunt Driving (speeding at 50 km/h or more over the speed limit)  requires no mens rea; proof alone of someone having committed the offence is sufficient for a conviction, something considered an “absolutely liabilityoffence” under law.

See a related decision.
See Speed Limits across Ontario.

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4 comments

  1. I don’t even know how I ended up here, but I thought this post was
    great.

    I do not know who you are but definitely you are going to a famous blogger if you are not already ;) Cheers!

  2. Hello! Would you mind if I share your blog with my twitter group? There’s a lot of folks that I think would really enjoy your content. Please let me know. Many thanks

  3. Finally, some common sense from our courts against unconstitutional laws. How can we support the defendant? I am glad someone is taking a stand.

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