http://www.canlii.org/en/on/oncj/doc...009oncj48.html

I'll provide my thoughts on it when I have some more time. But in short the ruling does not help the defence.

 

I'm a little confused...

 

Very interesting.

 

I think its unfair that if your convicted or not, your still punished, stripped and put through the blender. Thats unconstitutional IMO.

 

Of all of it, this worries me the most:

In the court’s 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. All 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.

 

CAPS ARE MY INPUT, ITALICIZED PORTIONS ARE QUOTES.

On the surface, it would appear that since there is a risk of imprisonment, there is therefore a possibility of a violation of S 7 of the Charter of Rights and Freedoms, the right to life, liberty and security of the person under S 7 of the Charter. The argument combines S 128 and 172(1) using one definition, that of speeding. The question may be asked, “if speeding is an absolute liability offence, then why is it defined as a strict liability offence in another section. Is this not a contradiction? How can penalties be so different?”

IN THE ABOVE PARAGRAPH THE JP SEEMS TO APPRECIATE THE ISSUES RAISED BY THE DEFENCE. THE BELOW PARAGRAPHS ARE SUPPOSED TO BE HIS ANSWER OR ANALYSIS OF THAT ISSUE.

The driving behaviours prohibited by section 172(1) and its accompanying Regulations pose a serious threat to the lives and safety of other users of the public roadways. They reflect a marked departure from the standard of care expected of all operators of motor vehicles. Penalties flowing from convictions under section 172(1) of the Highway Traffic Act reflect the seriousness of the charge.
The Court considers the degree to which section 3.7 of the Regulation imposes upon the Applicant's s 7 Charter rights. R v Pontes(1995) indicates that “the principles of fundamental justice under s.7 of the Canadian Charter of Rights and Freedoms do not require that an accused who is charged with a regulatory offence be entitled to claim due diligence in relation to the existence of the relevant statutory prohibition or its interpretation.” Since the provisions of S.172(1) do not create an absolute liability offence, there is no violation of s.7 of the Charter. On balance, considering the dangerous behaviour involved and given the defendant’s right to a due diligence defence, the court believes that any violation perceived or real is minimal.
To put this in perspective, S. 1 of the Charter of Rights and Freedoms guarantees rights only to the limit prescribed by law as can be demonstrably justified in a free and democratic society.
In R. v. Oakes(1986), 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.”
In this case, the court concludes that the objective sought to be served is the protection and safety of the users of public roadways including innocent parties. This is a pressing and substantial concern sufficiently important to warrant overriding the defendant’s s.7 rights.
S. 172(1) of the Highway Traffic Act has been crafted to apprehend 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. The objectives of the legislation are neither arbitrary nor unfair. There appears to be a balance between the law itself and the sanctions or penalties associated with it. There is a proportionality between the effects of the measures that limit s.7 of the Charter and the objective to keep Ontario’s roadways safe. This in the court’s view is reasonable and demonstrably justified.
There must come a point where the greater good takes precedence over the individual rights of the defendant. There needs to be a balance between the interests of society with those of individuals or groups. S. 1 of the Canadian Charter of Rights and Freedoms guarantees rights only to the limit prescribed by law as can be demonstrably justified in a free and democratic society. S. 7 of the Charter has its limits and in some cases must take second place to considerations under s. 1 of the Charter.
If there were no limits as defined by public tolerance, then the law would have no effect and would be without meaning or purpose. When it has been demonstrated that there is a need to take away a person’s liberty or freedom, it must always be justified by law and only after the person has exercised his or her right to a fair trial.

I FAIL TO SEE AN ANSWER BUT MERELY AN EXERCISE IN INTELECTUAL DISHONESTY BY SKIRTING AROUND THE ISSUE.

NOW IF S. 128 WAS LIMITED TO SPEEDING INFRACTIONS BELOW 50KM/H ABOVE THE POSTED LIMITED, I COULD AGREE THAT S.172 TAKES OVER AT THAT POINT AND CREATES A NEW OFFENCE THAT CAN BE DESCRIBED AS A STRICT LIABILITY OFFENCE. BUT AS IT STANDS THE OFFICER HAS THE DISCRETION TO DECIDE WHICH SECTION TO CHARGE YOU UNDER.

SO AFTER A MORE DETAILED READ THE CASE DOES NOT CONCERN ME SINCE THE JP REALLY HASN’T ADDED ANYTHING TO THE ACTUAL REASONING OF THE DEFENCE ARGUMENT.

 

Hopefully someone can just prove that both sections are worthless, and we can abolish daytime speed limits entirely.

 

So at the end it says the matter will proceed to trial, which means the JP would not throw the case out. So any thoughts on what's next?

 

The crown would still entertain a plea at this point so it may have resolved with out a trial.

What I have observed is that Crown's will accept a plea to s.128 at the same speed avoiding the big fines etc. of s.172.

So your guess is as good as mine as to what occurred next.

 

to a limit? But whose to say where that limit is? We should do a census vote of ontario.

 

just in case anyone doesnt realise why these stupid laws come about in the first place.

http://www.army.mil/usapa/epubs/pdf/r210_35.pdf

give that a look and ask yourself... "How long until these stupid laws they make up carry mandatory prison sentances?" To me it looks like another case of a law being made so vague and all encompassing that damn near anyone can be found guilty of it in one way or another. They're doing a similar thing with regards to suspected gang members, which is great.. if they actually use it to apprehend gang members. Really looks like our own lil Canadian versions of things like the patriot act/homeland security. My prediction, it wont be long until violating a EULA agreement carries prison sentances for downloading music or watchin a movie on the internet. Furthermore if u really give the bill of rights and the "motor vehicle act" a thourough read it is quite questionable as to the appliciability of these statutes falsly regarded as "laws". Until people start understanding thier rights they are bound to keep signing pieces of paper that give them away.

 

That was my problem with it. In my opinion it's not the law that is the problem, it is the immediate consequences. They take your licence and your car for 7 days, without any conviction at all, and at the descretion of the officer(s) involved. I'm sorry but last I checked the law was supposed to be an absolute, not a "well I'm feeling nice today so I'll be nice to you" or vice versa sort of thing. Basically the law is supposed to apply equally to everyone. But at an officers descretion two people can be pulled over doing the same thing and get different tickets. The problem is it seems that issue was only mentioned in passing and they focused on the speeding/stunting aspect of the law and the fines and jail time. Here's a part of the second last paragraph that in my eyes completely contradicts those immediate penalties.

When it has been demonstrated that there is a need to take away a person’s liberty or freedom, it must always be justified by law and only AFTER the person has exercised his or her right to a fair trial.

It's almost like trial, executioner then jury. They say there side, you argue yours, they take your car and your licence regardless, then you do or don't get convicted. At the end you have lost those two things for 7 days even if you beat the charge. For a person like myself that relies on my licence for work, and not just getting around, that sort of outcome could be devastating.

What ever happened to Innocent until PROVEN Guilty.

 

I hope this is true since I was clocked doing 133 km/h in an 80 km/h zone. I have to be in court in 6 weeks.


Interesting read here:

http://www2.macleans.ca/2009/04/30/fast-and-furious/

 

Yes, one JP has ruled against it but that is not persuasive on any other court of similar jurisdiction. Once a higher court rules on it, then all JPs have to follow it.

I am 3 for 3 on defending Street Racing Charges so far and none of those cases needed the constitutional argument to succeed. You have to treat it like any other offense. Request the disclosure and take it from there. I would not recommend pleading guilty to s.128 speeding on the first appearance.

Anyhow good luck.