It's all over the the news, Ontario's new Street Racing or Stunt driving law has been declared unconstitutional by the Court in Napanee.  Now, in the same news coverage, Police are stating they will continue to charge people with this offence and the Attorney-General has announced his intention to appeal.  Is this a valid law or not and how did we get here?

            In Canada, we have legislatures (governments) which pass laws and Courts, which enforce them.  The two parties are kept as separate as possible to protect us, the citizens, from a legal system influenced by the politics of the day.  Simply put, we have a system that works diligently to enforce the laws equally for all citizens regardless of political or public pressure.

            We have a number of rights, guaranteed by the Canadian Charter of Rights and Freedoms, for all citizens.   Our system of law (1) is based on the long established principal of Stare Decisis or common law, the concept being that the Courts are bound to make the same rulings on the same fact scenario's.  The Courts are essentially bound by previous decisions.  (2) While it may sound inflexible and perhaps even nonsensical, the goal is to ensure consistency in the Law.   The ideal is that a citizen would obtain the same results from the Courts regardless of where or when her/his case is heard.  We as citizens can then live our lives and run our businesses knowing the laws are the same for one and all.

            There are Criminal Charges people face when they break the law.  Beneath the Criminal Code are what are known as regulatory or public welfare type offences, which include Provincial laws and regulations, Municipal by-laws, including our driving laws under the Highway Traffic Act .   Street Racing or Stunt Driving (section 172.1 of the Highway Traffic Act) was recently revised to deal with the perceived need for increased public safety on our highways and is one of these public welfare offences.

            Public Welfare offences are further separated into categories, Absolute Liability and Strict Liability.   Absolute Liability offences can be defined as those which do not require the Crown prosecutor to prove intent, merely that the act took place.  For example, a dog is either on a leash or off a leash, there is no further discussion or evidence required for a conviction, nor can circumstances have any legal weight before the Court in disputing the Charge.   A general characteristic of Absolute Liability Offences are they tend to be minor in nature and in punishment, fitting for a charge where there are very few defences at law.

            Strict Liability offences may be defined as those charges where the individual may bring a defence of due diligence, that is, they were acting as a reasonable and prudent person would having regard for all the circumstances.  Practically speaking, this means that although the offence did happen, the person acted within the definition of what a reasonable and prudent person would do in the same circumstances.  For example, a person who swerves and hits a parked vehicle.  The individual is charged with Careless Driving.  A due diligence defence arises where the individual claims to have swerved to avoid a child chasing a ball into the street. (3)

            What does all this have to do with the recent hulabaloo about Stunt Driving?  Some time back, the Courts in Canada decided that, under the Charter of Rights and Freedoms, people charged with Absolute Liability Offences cannot face Jail Terms.  This makes sense,  when imposing a serious sentence like incarceration, the Courts should have the ability to consider all the circumstances prior to passing sentence.  The Courts have also decided that speeding is generally considered to be an Absolute Liability offence. The Stunt Driving law provides for up to a six month jail term upon conviction.  One of the definitions of Stunt is speeding more than 50 km/hr over the speed limit.

In the recent verdict of Mr. Justice G.J. Griffin, the appeal before him was based on a constitutional issue.  Was speeding an absolute liability offence?  Was speeding as set out in the Stunt Driving regulation different from regular speeding?  And was a defence of due diligence available to the individual who was charged? 

Justice Griffin found in R. v. Raham that indeed, speeding is speeding and it is an absolute liability offence.  Justice Griffin clearly articulated he had no difficulties with the provisions of the regulation permitting the immediate seizure of the vehicle, the immediate license suspension and the heavy fine imposed.  He then considered the possibility of a due diligence defence and concluded there was no imaginable due diligence defence for a person speeding 50 km/hr over the speed limit. (There are other defences, such as necessity and duress available).   Therefore Justice Griffin concluded that the Defendant, Ms Raham, faced jail time for an absolute liabilty offence, something he found the Courts had previously found unconstitutional. 

Justice Griffin's ruling became public knowledge and the news reports followed.  Why, then, are the police persisting in laying the Charge?  Firstly, only one small part of the regulation itself was deemed unconstitutional, the part relating to speeding.  Secondly, because the Court battle is still ongoing.  In Canada, we have different levels of Courts.  The higher Courts make decisions that are binding on the lower Courts.  There are higher levels of Courts where these particular issues have yet to be heard, which is where the Attorney General has indicated he is bringing his appeal.  Those Courts can make a different interpretation of the situation, overruling Justice Griffin or some part of his decision.  So, at the moment, Justice Griffin's decision is binding on the lower Court, persuasive only at the same level and subject to the rulings of the higher Courts. 

Simple, eh?  For those already convicted of the offence, regardless of how the appeal(s) (there will likely be more than one before the issue is finally resolved) turn out, their convictions will likely stand.  For those in the system now, Justice Griffin's decision should be binding on the lower Court but those decisions are always subject to appeal.

As we have seen with the case of Ms. Raham, many people that are charged with this offence do not fit what the public considers street racers.  I have seen dozens of these charges, some of which I felt should never have been laid.  Doubtlessly, each of you would have a different position on a number of files I have handled, which helps us understand the need for the Court process to ensure we are all equal before the law.

What does this mean to people facing this charge?  Many will likely now file Constitutional challenges based on Justice Griffin's decision.  The need for professional assistance in dealing with this charge has never been greater.  It is a shifting minefield.  An experienced and informed  Traffic Paralegal or an experienced Traffic Lawyer is a must to provide advice and provide you with options.

Many Traffic offences, including minor offences,  can have severe impacts on our lifestyle.  The Courts deal with the questions of guilt or innocence and sentencing (fines, suspensions, periods of incarceration, etc.).  The Ministry of Transportation assigns demerit points.  In a lot of cases, the most important player are the insurance companies who set our insurance rates.  Insurance companies are not part of either the Court or Ministry processes.  Therefore the impact of the cost of insurance as part of the consequences when facing a traffic offence is not considered when these bodies deal with the offence.  A professional traffic representative can assist in assessing the total situation an individual is facing.

Traffic representation is not a way of “beating the system”.  Even when acquitted, an individual has to pay for their representation, put the time and effort into hiring a representative and, depending on the charge, may spend time in Court testifying on their own behalf.   The idea of Traffic Representation is not to avoid having any consequences from ones actions.  It is to mitigate the unexpected, to protect an individuals rights and to ensure that the entire consequences are considered, not just those from any one part of the system.