The law has been on the Ontario books since January 1, 2009.
Requiring trucks to be equipped with speed limiters jeopardizes the safety of truck drivers and those near them on the road, an Ontario court said Wednesday in declaring the law unconstitutional.
Truck driver Gene Michaud was charged under the Highway Traffic Act with not having a working speed limiter and he challenged the requirement on commercial vehicles, saying the speed limit of 105 kilometres per hour puts him in danger.
A justice of the peace in Welland, Ont., agreed, and declared that the law violates the section of the Charter that guarantees life, liberty and security of the person.
“Inability to accelerate, or not accelerate fully places a driver in a less-than-safe situation because we have taken some of the tools required to drive properly away from the driver,” justice of the peace Brett Kelly found.
“Mr. Michaud needs to be able to take certain precautions in the execution of his job that will take him out of harm’s way and keep him and those around him safe.”
Because the challenge happened at the provincial court level the law is not struck down across the province, but Michaud’s lawyer said he intends to fight similar cases using this decision.
“I would hope that the government sees what’s real in this case and that is the fact that these speed limiters don’t promote safety but rather discourage it,” lawyer David Crocker said in an interview.
“I hope the Ontario government realizes that the legislation, it doesn’t do what they want it to do and withdraws it.”
Michaud argued that not ever being able to drive faster than 105 kilometres per hour is unsafe because it means he is often not able to keep up with the flow of traffic.
The speed limit on the major highways in Ontario is 100 kilometres per hour, but Crocker said there’s plenty of anecdotal evidence that people regularly drive 20 kilometres per hour over the speed limit.
“Particularly on the 400-series highways because the experts once again say people drive at the speed they are comfortable,” Crocker said.
An expert witness testified for Michaud that a greater difference in the rate of speed of vehicles on a highway will mean a greater number of collisions.
“In a nutshell, if all vehicles travelled at the same speed the amount of friction, and interaction between them, is minimized and the accident rate will be minimized,” Kelly wrote.
The ability to pass slower vehicles is hampered by the speed limiter, Michaud said, and it causes him to impede traffic when doing so. He also described a time when his vehicle began to jackknife and the only way to manoeuvre out of it was to accelerate.
The province argued that forcing vehicles to travel more slowly results in fewer fatalities and less severe collisions.
However, Kelly said, the government provided him no research papers to show the use of speed limiters has resulted in increased safety and a decrease in collision rates in jurisdictions that have implemented them.
Kelly also suggested the speed rate of 105 kilometres per hour was arbitrary, saying he could find nothing in the Hansard from when the legislation was introduced to scientifically support the number.
“When directly asked by this court how the government arrived at the 105 kilometre-per-hour number the answer was that they did not know,” Kelly said of the government lawyers.
A spokeswoman for the Ministry of the Attorney General said the province is reviewing the decision. They would have 30 days to appeal.
See the section of the Ontario Highway Traffic Act that applies to this situation:
Required use by commercial motor vehicles
68.1 (1) No person shall drive, or permit the operation of, a commercial motor vehicle on a highway unless the vehicle is equipped with a speed-limiting system that is activated and functioning in accordance with the regulations. 2008, c. 8, s. 1.
(2) Except as authorized by the regulations, no person shall,
(a) deactivate, or permit a person to deactivate, a commercial motor vehicle’s speed-limiting system; or
(b) modify, or permit a person to modify, a commercial motor vehicle’s speed-limiting system such that it ceases to function in accordance with the regulations. 2008, c. 8, s. 1.
Tampering device prohibited
(3) No person shall drive, or permit the operation of, a commercial motor vehicle on a highway if the vehicle is equipped with, has attached to it or carries,
(a) a prescribed device or prescribed equipment; or
(b) another device or equipment that is designed to disguise the fact that the vehicle is not equipped with a speed-limiting system that is activated and functioning in accordance with the regulations. 2008, c. 8, s. 1.
(4) A police officer or officer appointed for carrying out the provisions of this Act, in exercising his or her powers under section 82 or 216.1, may require that the driver or other person in charge of a commercial motor vehicle,
(a) provide the officer with access to the vehicle’s computer system in order to retrieve and read any information relevant to the activation and functioning of the vehicle’s speed-limiting system;
(b) surrender to the officer any device or equipment carried in the vehicle that operates as part of the vehicle’s speed-limiting system; and
(c) surrender to the officer any records that the driver is required by the regulations to carry with him or her while driving the vehicle. 2008, c. 8, s. 1.
(5) A driver or other person in charge of a commercial motor vehicle shall comply with any requirement made under subsection (4) by a police officer or officer appointed for carrying out the provisions of this Act. 2008, c. 8, s. 1.
Seizure of tampering device
(6) If a police officer or officer appointed for carrying out the provisions of this Act finds a device or equipment prohibited by subsection (3) in the course of any inspection of a commercial motor vehicle, he or she may detach, if necessary, and seize any such device or equipment. 2008, c. 8, s. 1.
Sale of tampering devices prohibited
(7) No person shall sell, offer or advertise for sale a device or equipment prohibited by subsection (3). 2008, c. 8, s. 1.
(8) Every person who contravenes or fails to comply with subsection (1), (2), (3), (5) or (7), or a regulation made under this section, is guilty of an offence and on conviction is liable to a fine of not less than $250 and not more than $20,000. 2008, c. 8, s. 1.
(9) In any proceeding under this section and in the absence of evidence to the contrary, proof that a commercial motor vehicle was driven on a highway at a speed equal to or greater than the speed prescribed for the purpose of this subsection is proof that the vehicle was not equipped with a speed-limiting system that was activated and functioning as required by subsection (1). 2008, c. 8, s. 1.
Forfeiture of tampering device
(10) Where a person is convicted of an offence under subsection (3), any device or equipment seized under subsection (6) by means of which the offence was committed is forfeited to the Crown. 2008, c. 8, s. 1.
(11) The Lieutenant Governor in Council may make regulations,
(a) defining “commercial motor vehicle” for the purposes of this section;
(b) prescribing standards for speed-limiting systems;
(c) governing the activation and functioning of speed-limiting systems, including prescribing and governing the speed at which speed-limiting systems must be set and prescribing different speed settings for different circumstances;
(d) prescribing devices and equipment for the purpose of clause (3) (a);
(e) governing methods to verify compliance with this section and the regulations, including prescribing devices and software to be used to retrieve and read information in computer systems;
(f) prescribing the speed for the purpose of subsection (9);
(g) requiring and governing the inspection and maintenance of speed-limiting systems;
(h) governing records to be kept and submitted in relation to the inspection, maintenance, activation and functioning of speed-limiting systems;
(i) governing records to be kept and carried by drivers in relation to the activation and functioning of speed-limiting systems;
(j) exempting any person or class of persons or any commercial motor vehicle or class of commercial motor vehicles from any requirement or provision of this section or of a regulation made under this section and prescribing conditions and circumstances for any such exemption. 2008, c. 8, s. 1