**Random Street Racing Court Case**
**Random Street Racing Court Case**
did a random search on my company's research service and came across this court case involving someone trying to use the charter defense to fight his stunt driving ticket:
Charges: S. 172 Highway Traffic Act - Racing
Counsel:
C. Mitchell: Agent for the Crown.
D. Powell: Agent for S. Luo.
REASONS FOR RULING
1 S. EVANS J.P. (orally):— The defendant, Shengheng Luo, is charged with the offence of racing while operating a motor vehicle by performing a stunt; to wit, speeding 165 kilometres per hour in a posted 100 kilometre-per-hour zone, contrary to section 172 of the Highway Traffic Act.
2 He has applied to the Court to have section 3.7 of Regulation 455/07 of the Highway Traffic Act declared unconstitutional, as it violates his section-7 rights under the Charter of Rights and Freedoms; being, "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."
3 The basis of the defendant's application is that section 3.7 of Regulation 455/07 prohibits speeding at 50 kilometres per hour or more, and that the subject matter of section 3.7, speeding, supports a classification of an absolute-liability offence. If convicted, the defendant is at risk of going to jail. Since one convicted of an absolute-liability offence cannot be sentenced to incarceration, the defence submits that this section 3.7 of Regulation 455/07 runs contrary to section 7 of the Canadian Charter of Rights and Freedoms, and infringes or denies him of his section-7 Charter rights and should be declared unconstitutional and, therefore, of no force or effect.
4 The Respondent argues that section 3.7 of Regulation 455/07, enacted in conjunction with section 172 of the Highway Traffic Act, does not create an absolute-liability offence and, therefore, it is not in contravention of section 7 of the Charter.
5 The Respondent submits that Regulation 455/07, section 3.7, enacted pursuant to section 172 of the Highway Traffic Act, denotes a new and distinct offence from that of speeding, contrary to section 128 of the same Act.
6 The Respondent further submits that the overall regulatory pattern surrounding section 3.7 in the definition sections 2 and 3 of Regulation 455/07, and the subject matter of the legislation, as well as the importance of penalty and the precision of the language used, all indicate that section 3.7 of Regulation 455/07 is a strict-liability offence.
7 Furthermore, since a strict-liability offence allows for a defence of due diligence, and allows for the lawful imposition of penal sanctions in response to a conviction, the Respondent submits that section 3.7 of Regulation 455/07 ought to be characterized as an offence of strict liability, and does not breach section 7 of the Charter of Rights and Freedoms. The Respondent submits that, even if the Court finds that section 3.7 of Regulation 455/07 breaches section 7 of the Charter, it is saved by section 1 of the Charter.
8 In my view, what the Court has to determine in this matter is whether or not section 3.7 of Regulation 455/07 is an offence, and, if so, whether it is a strict - or absolute - liability offence. The Court would then have to determine whether or not section 3.7 of Regulation 455/07 offends section 7 of the Charter of Rights, and, if so, whether or not it is saved by section 1 of the Charter.
9 Section 172 of the Highway Traffic Act reads as follows: Racing, stunts, et cetera, prohibited. No person shall drive a motor vehicle on a highway in a race or on a bet or wager.
10 Sections 2 and 3 of Ontario Regulation 455/07, made under the Highway Traffic Act, is referable to section 172 of the Highway Traffic Act and includes definitions of "race," and "contest,' and "stunt."
11 Section 3 of the Regulation defines "stunt" as including any activity where one or more persons engage in any of the eight listed driving behaviours. The seventh listed driving behaviour, .7 of section 3, is "driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit."
12 When considering the language used in section 172 of the Highway Traffic Act and Regulation 455/07, it is apparent that the legislature intended to create a strict-liability offence. Further, when considering the decision of the Supreme Court of Canada in the Sault Ste. Marie case, and the decision of the Ontario Court of Appeal in the Kanda case, it is also apparent to this Court that section 172 of the Highway Traffic Act is a strict-liability offence.
13 Firstly, the legislature is well aware of the language necessarily required to demonstrate its intention to create offences of mens rea, strict liability, and absolute liability. Furthermore, had the legislature intended to create an absolute-liability offence, it was open and available to it to use language which would clearly indicate its intention, such as expressly prohibiting any defences such as due diligence and reasonable care.
14 Secondly, the serious penalties attracted by the commission of the offence in section 172, being a fine of not less than $2,000.00 and not more than $10,000.00, or imprisonment for up to six months, or both, clearly suggest an intention not to create an absolute-liability offence, and are consistent with the classification of section 172 as a strict-liability offence.
15 Thirdly, in considering whether an offence is one of absolute liability or strict liability, the decision in the Sault Ste. Marie case indicates that there is a strong presumption in favour of strict liability.
16 In my view, in this case, that presumption is supported by the language of section 172 and the penalties arising from conviction of that offence, and, accordingly, I have concluded that section 172 of the Highway Traffic Act is a strict-liability offence.
17 It is also the view of this Court that sections 2 and 3 of Ontario Regulation 455/07 does not create any offence or offences. It provides, among other things, definitions of the word "race" and the word "stunt," which are found in section 172 of the Highway Traffic Act.
18 The definitions listed describe prohibited driving behaviours, which will constitute, by definition, "racing" and "stunt," both of which are required to support charges stemming from section 172 of the Highway Traffic Act.
19 Although many of the definitions listed in sections 2 and 3 of Regulation 455/07 may mirror other specific offences under the Highway Traffic Act, such as careless driving, section 130, and speeding, section 128, none of the defined behaviours listed, standing alone, can constitute the offence prohibited in section 172, although section 3.7 of Regulation 455/07 may include the same language as a specific offence found in section 128 of the Highway Traffic Act, an absolute-liability offence.
20 In the context of section 172, section 3.7 of the Regulation is simply defined behaviour, the proof of which forms only part of the burden of proof, which lies upon the prosecution. The prosecution must also establish one of the defined behaviours in section 2 of the Regulation.
21 Accordingly, in my view, section 3.7 of Regulation 455/07 is merely prohibited behaviour, which comes within the definition of "stunt." It is not an offence, it does not attract any penalty, and, therefore, does not offend the Applicant's section-7 Charter Rights. If, however, the Court is in error, I think it is important to give an alternative finding based on the issue before me.
22 Having found that section 172 creates a strict-liability offence, the issue then becomes whether or not Regulation 455/07 has altered the characterization of section 172 as a strict-liability offence by virtue of including driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit under its definition of "stunt" in section 3 of the Regulation.
23 Clearly, this defined behaviour mirrors the offence of speeding, contrary to section 120 of the Highway Traffic Act, which case law has clearly defined as an absolute-liability offence in the 2005 decision of the Ontario Court of Appeal, R. v. Polewsky.
24 Without repeating the Court's analysis with respect to section 172 of the Highway Traffic Act, it is apparent, after considering the language employed throughout most of the Regulation, that it is consistent with a strict-liability offence; however, the language used in the prohibited behaviour found in .7 of section 3 of Regulation 455/07 stands out as an anomaly, and clearly it uses the language of an absolute-liability offence.
25 In my view, .7 of section 3 of the Regulation standing on its own does represent prohibited behaviour that is classified as an absolute-liability offence, and as such, stands alone among the eight listed prohibited behaviours in section 3, the other seven clearly representing behaviours which can be classified as strict-liability conduct.
26 Given the serious penalties which such conduct prohibited by section 3 of the Regulation can attract as part of the offence created by section 172 of the Highway Traffic Act, I am satisfied that .7 of section 3 of the regulation does infringe upon or deny the Applicant the protection afforded by section 7 of the Charter of Rights.
Muskoka (District Municipality) v. Luo
Between
The District Municipality of Muskoka, and
Shengheng Luo
[2008] O.J. No. 3990
2008 ONCJ 478
Court File No. 070393
Ontario Court of Justice
Bracebridge, Ontario
S. Evans J.P.
Oral judgment: October 2, 2008.
(51 paras.)
Between
The District Municipality of Muskoka, and
Shengheng Luo
[2008] O.J. No. 3990
2008 ONCJ 478
Court File No. 070393
Ontario Court of Justice
Bracebridge, Ontario
S. Evans J.P.
Oral judgment: October 2, 2008.
(51 paras.)
Charges: S. 172 Highway Traffic Act - Racing
Counsel:
C. Mitchell: Agent for the Crown.
D. Powell: Agent for S. Luo.
REASONS FOR RULING
1 S. EVANS J.P. (orally):— The defendant, Shengheng Luo, is charged with the offence of racing while operating a motor vehicle by performing a stunt; to wit, speeding 165 kilometres per hour in a posted 100 kilometre-per-hour zone, contrary to section 172 of the Highway Traffic Act.
2 He has applied to the Court to have section 3.7 of Regulation 455/07 of the Highway Traffic Act declared unconstitutional, as it violates his section-7 rights under the Charter of Rights and Freedoms; being, "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."
3 The basis of the defendant's application is that section 3.7 of Regulation 455/07 prohibits speeding at 50 kilometres per hour or more, and that the subject matter of section 3.7, speeding, supports a classification of an absolute-liability offence. If convicted, the defendant is at risk of going to jail. Since one convicted of an absolute-liability offence cannot be sentenced to incarceration, the defence submits that this section 3.7 of Regulation 455/07 runs contrary to section 7 of the Canadian Charter of Rights and Freedoms, and infringes or denies him of his section-7 Charter rights and should be declared unconstitutional and, therefore, of no force or effect.
4 The Respondent argues that section 3.7 of Regulation 455/07, enacted in conjunction with section 172 of the Highway Traffic Act, does not create an absolute-liability offence and, therefore, it is not in contravention of section 7 of the Charter.
5 The Respondent submits that Regulation 455/07, section 3.7, enacted pursuant to section 172 of the Highway Traffic Act, denotes a new and distinct offence from that of speeding, contrary to section 128 of the same Act.
6 The Respondent further submits that the overall regulatory pattern surrounding section 3.7 in the definition sections 2 and 3 of Regulation 455/07, and the subject matter of the legislation, as well as the importance of penalty and the precision of the language used, all indicate that section 3.7 of Regulation 455/07 is a strict-liability offence.
7 Furthermore, since a strict-liability offence allows for a defence of due diligence, and allows for the lawful imposition of penal sanctions in response to a conviction, the Respondent submits that section 3.7 of Regulation 455/07 ought to be characterized as an offence of strict liability, and does not breach section 7 of the Charter of Rights and Freedoms. The Respondent submits that, even if the Court finds that section 3.7 of Regulation 455/07 breaches section 7 of the Charter, it is saved by section 1 of the Charter.
8 In my view, what the Court has to determine in this matter is whether or not section 3.7 of Regulation 455/07 is an offence, and, if so, whether it is a strict - or absolute - liability offence. The Court would then have to determine whether or not section 3.7 of Regulation 455/07 offends section 7 of the Charter of Rights, and, if so, whether or not it is saved by section 1 of the Charter.
9 Section 172 of the Highway Traffic Act reads as follows: Racing, stunts, et cetera, prohibited. No person shall drive a motor vehicle on a highway in a race or on a bet or wager.
10 Sections 2 and 3 of Ontario Regulation 455/07, made under the Highway Traffic Act, is referable to section 172 of the Highway Traffic Act and includes definitions of "race," and "contest,' and "stunt."
11 Section 3 of the Regulation defines "stunt" as including any activity where one or more persons engage in any of the eight listed driving behaviours. The seventh listed driving behaviour, .7 of section 3, is "driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit."
12 When considering the language used in section 172 of the Highway Traffic Act and Regulation 455/07, it is apparent that the legislature intended to create a strict-liability offence. Further, when considering the decision of the Supreme Court of Canada in the Sault Ste. Marie case, and the decision of the Ontario Court of Appeal in the Kanda case, it is also apparent to this Court that section 172 of the Highway Traffic Act is a strict-liability offence.
13 Firstly, the legislature is well aware of the language necessarily required to demonstrate its intention to create offences of mens rea, strict liability, and absolute liability. Furthermore, had the legislature intended to create an absolute-liability offence, it was open and available to it to use language which would clearly indicate its intention, such as expressly prohibiting any defences such as due diligence and reasonable care.
14 Secondly, the serious penalties attracted by the commission of the offence in section 172, being a fine of not less than $2,000.00 and not more than $10,000.00, or imprisonment for up to six months, or both, clearly suggest an intention not to create an absolute-liability offence, and are consistent with the classification of section 172 as a strict-liability offence.
15 Thirdly, in considering whether an offence is one of absolute liability or strict liability, the decision in the Sault Ste. Marie case indicates that there is a strong presumption in favour of strict liability.
16 In my view, in this case, that presumption is supported by the language of section 172 and the penalties arising from conviction of that offence, and, accordingly, I have concluded that section 172 of the Highway Traffic Act is a strict-liability offence.
17 It is also the view of this Court that sections 2 and 3 of Ontario Regulation 455/07 does not create any offence or offences. It provides, among other things, definitions of the word "race" and the word "stunt," which are found in section 172 of the Highway Traffic Act.
18 The definitions listed describe prohibited driving behaviours, which will constitute, by definition, "racing" and "stunt," both of which are required to support charges stemming from section 172 of the Highway Traffic Act.
19 Although many of the definitions listed in sections 2 and 3 of Regulation 455/07 may mirror other specific offences under the Highway Traffic Act, such as careless driving, section 130, and speeding, section 128, none of the defined behaviours listed, standing alone, can constitute the offence prohibited in section 172, although section 3.7 of Regulation 455/07 may include the same language as a specific offence found in section 128 of the Highway Traffic Act, an absolute-liability offence.
20 In the context of section 172, section 3.7 of the Regulation is simply defined behaviour, the proof of which forms only part of the burden of proof, which lies upon the prosecution. The prosecution must also establish one of the defined behaviours in section 2 of the Regulation.
21 Accordingly, in my view, section 3.7 of Regulation 455/07 is merely prohibited behaviour, which comes within the definition of "stunt." It is not an offence, it does not attract any penalty, and, therefore, does not offend the Applicant's section-7 Charter Rights. If, however, the Court is in error, I think it is important to give an alternative finding based on the issue before me.
22 Having found that section 172 creates a strict-liability offence, the issue then becomes whether or not Regulation 455/07 has altered the characterization of section 172 as a strict-liability offence by virtue of including driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit under its definition of "stunt" in section 3 of the Regulation.
23 Clearly, this defined behaviour mirrors the offence of speeding, contrary to section 120 of the Highway Traffic Act, which case law has clearly defined as an absolute-liability offence in the 2005 decision of the Ontario Court of Appeal, R. v. Polewsky.
24 Without repeating the Court's analysis with respect to section 172 of the Highway Traffic Act, it is apparent, after considering the language employed throughout most of the Regulation, that it is consistent with a strict-liability offence; however, the language used in the prohibited behaviour found in .7 of section 3 of Regulation 455/07 stands out as an anomaly, and clearly it uses the language of an absolute-liability offence.
25 In my view, .7 of section 3 of the Regulation standing on its own does represent prohibited behaviour that is classified as an absolute-liability offence, and as such, stands alone among the eight listed prohibited behaviours in section 3, the other seven clearly representing behaviours which can be classified as strict-liability conduct.
26 Given the serious penalties which such conduct prohibited by section 3 of the Regulation can attract as part of the offence created by section 172 of the Highway Traffic Act, I am satisfied that .7 of section 3 of the regulation does infringe upon or deny the Applicant the protection afforded by section 7 of the Charter of Rights.
27 The Court must then determine whether or not this infringement or denial of the Applicant's section-7 rights is saved by section 1 of the Charter as being a reasonable limit prescribed by law, which is demonstrably justified in a free and democratic society.
28 In this case, in seeking to have the Applicant's section-7 Charter rights limited by the application of section 1 of the Charter, the Respondent has the burden of establishing, on the balance of probabilities, that the limitation is reasonable and demonstrably justified in a free and democratic society.
29 While this burden is often sought to be met by the calling of viva voce evidence, the Respondent in this case has elected to rely upon case law and submissions found in its Book of Authorities and Notice of Response.
30 In R. v. Oakes, cited as [1986] 1 S.C.R. 103, the Supreme Court of Canada held that, to establish that a limit is reasonable and demonstrably justified in a free and democratic society, it is necessary to satisfy two central criteria: first, the objective sought to be served by the limitation is of sufficient importance to warrant overriding the constitutionally protected Charter right or freedom, and second, that the means chosen to do so are reasonable and demonstrably justified.
31 In this case, it is submitted that the objective sought to be served is the protection of the safety of the users of public roadways and the prevention of harm or death to users of the roadways, as well as innocent bystanders, is a pressing and substantial concern sufficiently important to warrant overriding the Applicant's section-7 rights.
32 In support of this submission, the Respondent referred to comments made by the Honourable Donna Cansfield, the Minister of Transportation, in the course of debate during the introduction of the legislation on April 12, 2007, in which the Minister noted that more than two people are killed and ten people are seriously injured every day on our roads, and. that, since 1999, there have been thirty-five street-racing-related deaths in Ontario, including some innocent bystanders. The Minister went on to say that the legislation would set a new standard for road safety, with tougher sanctions to target aggressive and dangerous driving behaviours.
33 Upon consideration, it is the view of this Court that the objective sought to be achieved by section 172 of the Highway Traffic Act and Regulation 455/07 does relate to a pressing and substantial concern, and is of sufficient importance to warrant overriding the Charter rights found in section 7 of the Charter.
34 Having come to that conclusion, then, the Court must now consider whether or not the means chosen by the legislature to meet that objective are reasonable and demonstrably justified.
35 In that regard, the Supreme Court of Canada in the Oakes decision indicated that this consideration involved a form of proportionality test to balance the interests of society with those of individuals and groups.
36 This proportionality test involves a consideration of three distinct components: 1) the measures must be carefully designed to achieve the objective and not be arbitrary, unfair, or based on irrational considerations: the measures must be rationally connected to the objective; 2) the measures should impair as little as possible the right or freedom in question; and 3) there must be a proportionality between the effects of the measures which limit the Charter right or freedom and the sufficiently important objective.
37 With respect to the rational-connection test, the Respondent submits that the provisions of section 172 of the Highway Traffic Act are carefully crafted to catch only those individuals whose actions are a significant departure from the standards associated with the safe operation of a motor vehicle on a public highway.
38 Although not specifically addressing the language in Regulation 455/07, and in particular section 3.7 of that Regulation, it would be fair to assume that the Respondent intended this submission to include a consideration of section 172 of the Highway Traffic Act and Regulation 455/07.
39 A review of Regulation 455/07 clearly demonstrates to this Court an intent to define driving behaviours which demonstrate a significant departure from the standard of care expected and required from motor-vehicle drivers on public roadways, all of which, including section 3.7 of the Regulation, pose significant risk to the lives and safety of other users of the roadways.
40 In my view, none of the defined driving behaviours found in Regulation 455/07 could be reasonably construed as being arbitrary, unfair, or based upon irrational considerations, and furthermore, all of those defined driving behaviours, including speeding 50 kilometres per hour or more over the posted speed limit, are clearly designed to meet the objective of preventing harm or death to users of the public roadways.
41 I therefore conclude that the rational-connection test is met in the intent and language of Regulation 455/07.
42 The Court must now consider the degree of impairment section 3.7 of the Regulation imposes upon the Applicant's section-7 Charter rights. The Respondent submits that such impairment is minimal, given the intrinsically dangerous behaviour involved.
43 Perhaps the obvious response to that submission would be that this dangerous offending behaviour can be addressed by way of a charge and conviction under section 128 of the Highway Traffic Act -speeding - without the risk of penal sanction, which would infringe a section-7 Charter right.
44 The real issue is whether or not the inclusion of section 3.7 in the Regulation has disproportionately infringed the Applicant's section-7 Charter rights.
45 Section 172 of the Highway Traffic Act requires the prosecution to establish beyond a reasonable doubt that the Applicant in this case was both racing and performing a stunt. Where the stunt alleged is driving behaviour captured by section 3.7 of the Regulation (i.e., speeding at 50 kilometres per hour or more over the posted speed limit)/ the defences available are limited by the absolute-liability character of that behaviour. However, the defences available with respect to the allegation of racing are those available to strict-liability offences.
46 In my view, when one considers the objective sought, the nature of the driving behaviours defined as "racing," and the overall burden upon the prosecution to establish both "racing" and the performance of the stunt of speeding, as defined in section 3.7 of the Regulation, it is my view that the infringement or denial of the Applicant's section-7 Charter right in only one aspect of the overall prosecution is minimal and justified.
47 Having concluded, then, that section 3.7 of the Regulation survives the rational-connection test and impairs as little as possible the Applicant's section-7 Charter rights, the issue then becomes whether or not there is a proportionality between the effects of the measures which are responsible for limiting the Applicant's section-7 Charter rights, and the objective sought to be achieved by section 172 of the Highway Traffic Act.
48 A conviction under section 172 of the Highway Traffic Act can result in a fine of not less than $2,000.00 and not more than $10,000.00, or imprisonment for a term of not more than six months, or both, and a possible suspension of a driving licence.
49 Given the nature of the driving behaviours prohibited by section 172, which are not only dangerous but obviously pose a serious threat to the lives and safety of other users of the public roadways, and reflect a significant departure from the standard of care expected of all operators of motor vehicles, the Court does find the penalties flowing from convictions under section 172 of the Highway Traffic Act to be proportional to the objective of section 172.
50 Accordingly, this Court is of the view that the denial of the Applicant's section-7 Charter right by section 3.7 of the Regulation is saved by section 1 of the Charter of Rights by being a reasonable limit prescribed by law, which is demonstrably justified in a free and democratic society.
51 The Applicant's application is dismissed, and the matter will proceed to trial.
28 In this case, in seeking to have the Applicant's section-7 Charter rights limited by the application of section 1 of the Charter, the Respondent has the burden of establishing, on the balance of probabilities, that the limitation is reasonable and demonstrably justified in a free and democratic society.
29 While this burden is often sought to be met by the calling of viva voce evidence, the Respondent in this case has elected to rely upon case law and submissions found in its Book of Authorities and Notice of Response.
30 In R. v. Oakes, cited as [1986] 1 S.C.R. 103, the Supreme Court of Canada held that, to establish that a limit is reasonable and demonstrably justified in a free and democratic society, it is necessary to satisfy two central criteria: first, the objective sought to be served by the limitation is of sufficient importance to warrant overriding the constitutionally protected Charter right or freedom, and second, that the means chosen to do so are reasonable and demonstrably justified.
31 In this case, it is submitted that the objective sought to be served is the protection of the safety of the users of public roadways and the prevention of harm or death to users of the roadways, as well as innocent bystanders, is a pressing and substantial concern sufficiently important to warrant overriding the Applicant's section-7 rights.
32 In support of this submission, the Respondent referred to comments made by the Honourable Donna Cansfield, the Minister of Transportation, in the course of debate during the introduction of the legislation on April 12, 2007, in which the Minister noted that more than two people are killed and ten people are seriously injured every day on our roads, and. that, since 1999, there have been thirty-five street-racing-related deaths in Ontario, including some innocent bystanders. The Minister went on to say that the legislation would set a new standard for road safety, with tougher sanctions to target aggressive and dangerous driving behaviours.
33 Upon consideration, it is the view of this Court that the objective sought to be achieved by section 172 of the Highway Traffic Act and Regulation 455/07 does relate to a pressing and substantial concern, and is of sufficient importance to warrant overriding the Charter rights found in section 7 of the Charter.
34 Having come to that conclusion, then, the Court must now consider whether or not the means chosen by the legislature to meet that objective are reasonable and demonstrably justified.
35 In that regard, the Supreme Court of Canada in the Oakes decision indicated that this consideration involved a form of proportionality test to balance the interests of society with those of individuals and groups.
36 This proportionality test involves a consideration of three distinct components: 1) the measures must be carefully designed to achieve the objective and not be arbitrary, unfair, or based on irrational considerations: the measures must be rationally connected to the objective; 2) the measures should impair as little as possible the right or freedom in question; and 3) there must be a proportionality between the effects of the measures which limit the Charter right or freedom and the sufficiently important objective.
37 With respect to the rational-connection test, the Respondent submits that the provisions of section 172 of the Highway Traffic Act are carefully crafted to catch only those individuals whose actions are a significant departure from the standards associated with the safe operation of a motor vehicle on a public highway.
38 Although not specifically addressing the language in Regulation 455/07, and in particular section 3.7 of that Regulation, it would be fair to assume that the Respondent intended this submission to include a consideration of section 172 of the Highway Traffic Act and Regulation 455/07.
39 A review of Regulation 455/07 clearly demonstrates to this Court an intent to define driving behaviours which demonstrate a significant departure from the standard of care expected and required from motor-vehicle drivers on public roadways, all of which, including section 3.7 of the Regulation, pose significant risk to the lives and safety of other users of the roadways.
40 In my view, none of the defined driving behaviours found in Regulation 455/07 could be reasonably construed as being arbitrary, unfair, or based upon irrational considerations, and furthermore, all of those defined driving behaviours, including speeding 50 kilometres per hour or more over the posted speed limit, are clearly designed to meet the objective of preventing harm or death to users of the public roadways.
41 I therefore conclude that the rational-connection test is met in the intent and language of Regulation 455/07.
42 The Court must now consider the degree of impairment section 3.7 of the Regulation imposes upon the Applicant's section-7 Charter rights. The Respondent submits that such impairment is minimal, given the intrinsically dangerous behaviour involved.
43 Perhaps the obvious response to that submission would be that this dangerous offending behaviour can be addressed by way of a charge and conviction under section 128 of the Highway Traffic Act -speeding - without the risk of penal sanction, which would infringe a section-7 Charter right.
44 The real issue is whether or not the inclusion of section 3.7 in the Regulation has disproportionately infringed the Applicant's section-7 Charter rights.
45 Section 172 of the Highway Traffic Act requires the prosecution to establish beyond a reasonable doubt that the Applicant in this case was both racing and performing a stunt. Where the stunt alleged is driving behaviour captured by section 3.7 of the Regulation (i.e., speeding at 50 kilometres per hour or more over the posted speed limit)/ the defences available are limited by the absolute-liability character of that behaviour. However, the defences available with respect to the allegation of racing are those available to strict-liability offences.
46 In my view, when one considers the objective sought, the nature of the driving behaviours defined as "racing," and the overall burden upon the prosecution to establish both "racing" and the performance of the stunt of speeding, as defined in section 3.7 of the Regulation, it is my view that the infringement or denial of the Applicant's section-7 Charter right in only one aspect of the overall prosecution is minimal and justified.
47 Having concluded, then, that section 3.7 of the Regulation survives the rational-connection test and impairs as little as possible the Applicant's section-7 Charter rights, the issue then becomes whether or not there is a proportionality between the effects of the measures which are responsible for limiting the Applicant's section-7 Charter rights, and the objective sought to be achieved by section 172 of the Highway Traffic Act.
48 A conviction under section 172 of the Highway Traffic Act can result in a fine of not less than $2,000.00 and not more than $10,000.00, or imprisonment for a term of not more than six months, or both, and a possible suspension of a driving licence.
49 Given the nature of the driving behaviours prohibited by section 172, which are not only dangerous but obviously pose a serious threat to the lives and safety of other users of the public roadways, and reflect a significant departure from the standard of care expected of all operators of motor vehicles, the Court does find the penalties flowing from convictions under section 172 of the Highway Traffic Act to be proportional to the objective of section 172.
50 Accordingly, this Court is of the view that the denial of the Applicant's section-7 Charter right by section 3.7 of the Regulation is saved by section 1 of the Charter of Rights by being a reasonable limit prescribed by law, which is demonstrably justified in a free and democratic society.
51 The Applicant's application is dismissed, and the matter will proceed to trial.
haha, no. basically what jason said. he tried using the charter defense to get his conviction quashed prior to the trial but failed and still has to attend his trial date.
but according to most stats that newspapers are reporting, the actual conviction rate for stunt/street racing is rather low, and typically people plead to a lesser charge like speeding.
but according to most stats that newspapers are reporting, the actual conviction rate for stunt/street racing is rather low, and typically people plead to a lesser charge like speeding.
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