Street Racing- section 172 of Ontario’s Highway Traffic Act

Update:

On September 30, 2007 the Safer Roads for a Safer Ontario Act was implemented in Ontario at 12:01 a.m. One of the objectives of this legislation, which amended the Highway Traffic Act (the HTA), was to target street racers and aggressive drivers who became a hazard to other motorists, pedestrians and themselves.  This Act 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).

If, as a driver,  you are pulled over by a police officer and accused of speeding in excess of the posted speed limit by 50 kilometres an hour or more, you will be subjected to an administrative suspension of your driver’s licence for seven days (see section 172(6)) of the HTA and will have the vehicle that you are racing in (whether you own it or not) impounded for seven (7) days (see section 172(7)) of the HTA. You will then receive a summons and be expected to attend a Provincial Offences Court to have your racing charge dealt with.

You will have to pay the fees associated with the impoundment of the vehicle in question and the vehicle will not be released, until you have paid all of the costs associated with the impoundment and storage of your vehicle in accordance with section 172 (14) of the HTA.

You cannot appeal or be heard before a court regarding the decision with respect to your vehicle’s detention, your administrative driver’s licence suspension or your vehicle’s impoundment (see section 172(13) of the HTA). There is no appeal process in place. Many feel that this “total absence of due process” is unfair to motorists and is associated with a law that is draconian in nature and offends section 11 (d) of the Charter. An O.P.P. officer with over a decade on the force,  was recently charged with three counts of breach of trust and one count of attempting to obstruct justice,  after an investigation by the Ontario Provincial Police Professional Standards Bureau.

Driver’s convicted of “racing” now faces, upon conviction of contravening section 172 of the Highway Traffic Act:

  • imprisonment for a term of not more than six (6) months; and
  • a minimum fine of $2,000 to a maximum fine of $10,000, (making the new fine limits, the harshest in Canada); or both the term of imprisonment and up to the maximum fine, together;  and
  • upon conviction of racing, the driver will accumulate six (6) demerit points on their driver’s licence and could have their driver’s licence suspended for up to two (2) years, upon their first “racing” conviction. A subsequent “racing” conviction, within ten (10) years of the first conviction, could result in a driver’s licence suspension of ten (10) years.
  • The Highway Traffic Act states, in part: Section 31 Driving a privilege: The purpose of this Part is protect the public by ensuring that,

    (a) the privilege of driving on a highway is granted to, and retained by, only those persons, who demonstrate that they are likely to drive safely;

    Section 81 of the Provincial Offences Act states: “Ignorance of the law by a person who commits an offence is not an excuse for committing the offence”.

    The driver’s licence suspensions will apply not only to people with Ontario driver’s licences, but to drivers licensed by another jurisdiction as well. (See Reciprocal agreements between Ontario the U.S. States of New York and Michigan (see section 40 of the Highway Traffic Act), as well as the Canadian Driver Licence Compact “CDLC”).

    The Courts in Ontario have now defined “Racing” pursuant to section 172 of the HTA as a “strict liability offence”. Speeding (49 kilometres or less than the posted or regulated speed limit) carries with it a charge under section 128 of the HTA and has been defined by the Courts in Ontario as an “absolute liability offence”. As of a year ago, the conviction rate for this offence stood at about 30%. This means that about one out of every three motorists who were charged, were actually convicted.  This is probably due to the fact that the consequences of a conviction are so severe, that most motorists feel that they have not choice, but to challenge the charge(s) in court.

    Since the implemenation of the new racing laws on September 30, 2007 thousands of motorists have been charged on the highways and streets and roads of Ontario. In the first day, twenty eight (28) motorists were charged.  In addition to thousands of motorists, at least three (3) O.P.P. officers, who have the duty to enforce this law. were charged with racing pursuant to section 172 of the HTA.  Now a high ranking Toronto Fire Chief has been charged with allegedly contravening  the racing laws, not while he was on duty, but on vacation, on the way to a funeral, in a Toronto Fire Services owned vehicle (SUV).

    It is alleged that a veteran employee of the Toronto Fire Services department was racing, in contravention of section 172 of the Highway Traffic Act, on his way to a funeral, in a vehicle owned by the Toronto Fires Services, on Friday, June 26, 2009.

    An Ontario Provincial Police officer (O.P.P) within a patrol aircraft patrolling highway 401 (in the Port Hope area – near Wesleyville) witnessed a red Toyota Highlander travelling 50 kilometres over the posted speed limit on June 26, 2009 at approximately 9:26 a.m on the Highway of Heroes.

    The red Toyota Highlander, was then pulled over at approximately 9:30 a.m. west of Port Hope, by an O.P.P. cruiser and the driver of the red bullet, identified himself as Daryl Fugerlud. Mr. Daryl Fugerlud is the currently appointed Deputy Fire Chief/Director(Staff Services and Communications)(416-338-9053). Fire Chief Fugerlud has been working with Fire Services for 28 years (he started in 1979 as a firefighter and occupied different positions (Captain, Platoon Chief, Division Commander) and was promoted to the appointed position of Deputy Fire Chief/Director two years ago, on June 1, 2007.

    The fire engine red Toyota Highlander, which is owned by the Toronto Fire Services, in accordance with section 172 of the Ontario Highway Traffic Act, had to be impounded for seven days and the Deputy Fire Chief’s personal driver’s licence, had to be suspended for a week, in accordance with the requirements of section 172 of the Highway Traffic Act.

    Toronto Fire Chief’s Daryl Fugerlud, is scheduled to appear in court to answer to the charge of “racing”, on Wednesday, August 5, 2009 at:

    Cobourg (Northumberland County) Courthouse
    860 William St.
    Cobourg ON K9A 3A9

    Toronto Fire Service’s Deputy Fire Chief Daryl Fugerlud was on vacation when this occurred and will remain on it, when he is scheduled to appear in court in Cobourg on Aug. 5, 2009.

    Update: October 7, 2009 – Toronto’s Deputy Fire Chief, 53 year old Daryl Fugerlud, “avoids street-racing fine” by showing remorse and pleading guilty to a lesser charge of “speeding”. Toronto Fire Services Deputy Fire Chief Daryl Fuglerud admitted through his lawyer in Provincial Court in Cobourg on Wednesday, October 7, 2009 that he drove 50 km/h over the speed limit on Hwy. 401 near Port Hope in June. He was fined $343.

  • Sept. 3/08 – Stunt driving law applied differently to two O.P.P officers.
  • Project Erase (Eliminate Racing Activity on Streets Everywhere) was conducted by police in Ottawa on June 12, 2009 which resulted in the police stopping about 250 motor vehicles and laying charges against motorists who who were allegedly contravening section 172 of the HTA.
  • July 7, 2009 – Two die in what appears to be a street race on a highway in Toronto
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    11. i would like to know how someone can be charged for stunt driving when they are going 45 klm and hour and they pass someone on the left and then go back to the midle lane and then get hit from behind but its your fault and you lose your truck for 7 days and loose your license for 7 days the accident was not your fault but you get penilized for it where is the justice

    12. Hi Sam:

      Ever since Bill 203 ( http://www.mto.gov.on.ca/english/about/bill203.shtml ), also known as the Safer Roads for a Safer Ontario Act was implemented on September 30, 2007, there have been a number of people who have the same objection you do, regarding due process and our rights under section 11 (d) of the Charter (11 (d) states: Any person charged with an offence has the right (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (http://laws.justice.gc.ca/en/charter/1.html#codese:11 ) and section 8 of the Charter that states: Search or seizure: 8. Everyone has the right to be secure against unreasonable search or seizure.( http://laws.justice.gc.ca/en/charter/1.html#codese:8 ) There are many that feel that section 172 provides far too much power to the State and allows the State to seize your vehicle (roadside impoundment) for seven (7) days, as well as imposing an administrative suspension of one’s driver’s licence for seven (7) days and then all the costs associated with getting your vehicle and licence back.

      Section 172 (1) (see: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#s172s1 )was defined by Queen’s Park, when it was implemented to be an “absolute liability offence” under the Highway Traffic Act. This meant that all a Prosecutor would have to establish is that you were speeding 50 kilometres over the speed limit at the given time of the charge and you would be convicted. The only defence for an absolute liability offence is a rare defence, called Defence of Necessity (You broke the law because your life was in peril – example: you were speeding in your vehicle and breaking the law, because you saw a tornado headed your way and if you didn’t break the law by speeding, you would have most certainly perished). If this wasn’t available and it seldom is, there is a good chance of conviction.

      Thank goodness we have a Canadian Charter of Rights and Freedoms and a Supreme Court of Canada, whose job it is to ultimately interpret the Charter.

      There is a seminal case, out of the Supreme Court which canvassed a number of issues surrounding Absolute Liability and Strict Liability Offences (R. v. Sault Ste Marie). This was followed by the B.C. Motor Act case, where Justice Lamer found, in essence, that any provision of the law that offends section 7 of the Charter, is inconsistent with the Charter and in accordance with section 52 (1) the Charter, has no “force or effect”.http://www.canlii.org/en/ca/const/const1982.html#general (see General Part VII – Primacy of the Constitution of Canada- section 52.1 “The Constitution is the Supreme Law in Canada, and any law that is inconsistent, with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect ” Under section 172 of the Highway Traffic Act, a defendant who is convicted can be placed in jail for no longer than six (6) months (see: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#s172s2 ), fined up to $10,000.00 (see: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#s172s2 ) and can potentially lose their driver’s licence for ten (10) years (see: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#s172s4 )or suffer from all three of these consequences at the same time.

      Section 7 of the Charter states: http://www.canlii.org/en/ca/const/const1982.html#legal
      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.

      If section 172 is defined as an “absolute liability offence” (given the potential for deprivation of liberty – ie jail time/incarceration) then section 52 (1) of the Charter would be triggered and it would be found to be inconsistent with section 7 of the Charter and would then have no force or effect. Section 52.1 of the Charter states:

      The Constitution of Canada is the Supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.

      Since September 30, 2007 a number of these charges (racing, stunt driving – cases where motor vehicles are travelling in excess of 49 kilometres per hour over the posted or known speed limit). In R. v. R. G. Brown and R. v. Sgotto section 172 of the Highway Traffic Act was reviewed ( s. 3.7 of O. Reg. 455/07 ) and it was found that even though this language was written in such a way that it sounds like an absolute liability offence, it is actually a “strict liability offence”.

      This is important as it allows anyone charged to present a defence of “due diligence” which was not available when the law still interpreted section 172 as an absolute liability offence.

      Here are some links to the case law I referred to, as well as the passage of Bill 203 (which is part of section 172 of the HTA) that offends section 7 of the Charter.

      Highway Traffic Act, R.S.O 1990, Chapter H.8: http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm

      s. 3.7 of O. Reg. 455/07: http://www.e-laws.gov.on.ca/html/regs/english/elaws_regs_070455_e.htm#s3

      R. v. Sault Ste Marie: http://www.canlii.org/en/ca/scc/doc/1978/1978canlii11/1978canlii11.html

      B.C. Motor Vehicle Act: http://www.canlii.org/en/ca/scc/doc/1985/1985canlii81/1985canlii81.html

      R. v. R.G. Brown:(2009 ONCJ 6): http://www.canlii.org/en/on/oncj/doc/2009/2009oncj6/2009oncj6.html

      R. v. Sgotto:(2009 ONCJ 48): http://www.canlii.org/en/on/oncj/doc/2009/2009oncj48/2009oncj48.html

      Thanks Sam. Remember to always fightyourtickets.ca : http://fightyourtickets.ca/

    13. Thank You for this excellent resource. It’s because of this website, that i have successfully defended myself from ruthless provincial prosecutors.

      I’m puzzled as to how a police officer, who is not judge or a justice of the peace can suspended a motorists license without due process. The fact we no longer have Presumption of Innocence is scary, instead of receiving a fair and balanced trail, justice and conviction of your ticket is carried out on the side road. This is complete and utter Bull-Shit.

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