National Post editorial board: The beginning of the end for a stupid law

[camber]

National Post editorial board: The beginning of the end for a stupid law
Posted: September 11, 2009, 8:30 AM by NP Editor
Edirorial

So the Attorney-General of Ontario says he believes -- contrary to an opinion handed down last week by Ontario Court Justice Geoffrey Griffin -- that the province's stunt-driving law is wholly constitutional, and will be upheld on an appeal he intends to make. Well, perhaps it is all for the best that appellate courts will quickly get to review, and trample, the odious provision that makes exceeding the posted speed limit by 50 km/h an "absolute liability" offence that effectively allows for no defence by the accused. Judge Griffin's ruling is only binding on justices of the peace; by taking the matter to a higher court, Attorney-General Bentley is risking a more permanent, unconditional and thorough reversal.

One says "risking," but the outcome is as certain as any such matter could imaginably be. The absolute liability provision in the stunt-driving law could not be more obvious or ostentatious in its unconstitutionality. The Charter of Rights says that an accused person is "to be presumed innocent until proven guilty," but the norms underlying the notion of proof of guilt are much older -- in a way, more deeply entrenched in our common understanding of the law and our relations with the state. Since time immemorial, prosecutors seeking to convict on an offence have had to meet a dual test; that the illegal act or omission actually happened and that the accused intended to do wrong, or was somehow careless or negligent. In short, that they possessed mens rea. It's in Latin, which is a useful hint at how old the concept is.

The law dismisses the requirement to prove intent when it comes to lighter penalties such as the loss of driving privileges, but it is platinum-clad Canadian law, established in the B.C. Motor Vehicle Reference of 1985, that absolute liability cannot lead to a risk of imprisonment, or indeed to any penalty that impinges upon the "life, liberty and security of the person." The attorney-general who created the stunt-driving law ought to have known that it would collapse the first time it was challenged -- indeed, that no judge who was aware of Charter jurisprudence would have any other choice. But Michael Bryant is, understandably, too busy with personal matters at the moment to offer an explanation of why he wasted the time and effort of Ontario courts framing and debating legislation that was patently unconstitutional.

Mr. Bryant is an easy target here, but one notices that the case which led to Judge Griffin's ruling exhibits signs of a sickening failure of human sympathy and social reasoning on the part of police and prosecutors. Jane Raham was caught just one km/h over the stunt-driving limit while trying to pass a truck on Highway 7 near Kaladar, Ont. She could have based a defence on the inherent inaccuracy of a measurement of her speed taken from a moving police car; instead, she and her lawyers --pardon the metaphor -- took the high road, acting for the benefit of all citizens.

As Justice Griffin observed, Ms. Raham is not, in any ordinary sense of the word, a "stunt driver"; she is a grandmother who didn't want to stay in the blind spot of a truck, or in the passing lane of a highway, any longer than necessary. This seems not only natural, but indicative of a positive, sensible road awareness and concern for safety (not to mention a willingness to step on the gas that is quite laudable in an older person).

But inexplicably, nobody decided to give her the benefit of the doubt and revise the stunting ticket before this matter even reached a courtroom. Why not? Are Ontario's police nothing but unthinking automatons determined to see the law upheld at any cost in human suffering and fear? We certainly hope not -- and think not in most cases. But the danger that some of them might be is one more reason the law should not stand in its current form.

http://network.nationalpost.com/np/b...tupid-law.aspx

[masterballer]

Good read, thanks.

[bembol]

I really hope this BS law ends.


I also hope the Government does make it tougher to get your Driver's License, IMO it's a complete joke. It's just way too easy!!

[Jon Lai]

I read half of it and went, WTF? Oh, it's on the National Post. No jokes.

I hope this law stays AND we get tougher licensing.

[scouzer]

I've been arguing on here for a long time this law is unconstitutional, I'm not surprised that I've been right all along. Most people here would gladly toss any of their constitutional rights into a fire if it made them feel a smidgen safer. Very ignorant.

[camber]

I find it funny that some two years after the fact that only now to so called journalists have the guts to call the law unconstitutional and are asking for it to be heavily amended or scrapped in its entirety.

Before, this ruling there was only one real journo(Jim Kenzie), questioning the validity of the law.

[champlinD]

...
...


Before, this ruling there was only one real journo(Jim Kenzie), questioning the validity of the law.

I think Jim has proved the stats are used by OPP. Fantino has used this stats to show law works. Jim has proved it has nothing to do with the law and how OPP used the stats. This is old time police politics at work. I don't like Fantino and his laws.

[new_vr]

I hope this law stays AND we get tougher licensing.

Why?
I agree with harsh punishments for excessive speeders, but I don't like this law at all. I thought it was supposed to be a judge that decides your fate, not the police at the side of the road. I think the system needs balances, you can't give too much power to any one group of people

[raymondly]

Why?
I agree with harsh punishments for excessive speeders, but I don't like this law at all. I thought it was supposed to be a judge that decides your fate, not the police at the side of the road. I think the system needs balances, you can't give too much power to any one group of people

So by your logic, an officer should not take an intoxicated driver off the road because of a machine that is potentially fallible (roadside breathalyser)?

[scouzer]

So by your logic, an officer should not take an intoxicated driver off the road because of a machine that is potentially fallible (roadside breathalyser)?

An intoxicated driver is physically incapable of driving; a speeder is not.

[raymondly]

An intoxicated driver is physically incapable of driving; a speeder is not.

I beg to differ - there are probably many similarities such as:
reduced reaction time
no reason to drive while intoxicated/no reason to drive in excess of 50 km over the speed limit

But both are based on an instrument

[new_vr]

So by your logic, an officer should not take an intoxicated driver off the road because of a machine that is potentially fallible (roadside breathalyser)?

No.
An intoxicated driver will pose an immediate threat to others if they are allowed to drive again. Someone who is speeding will not.

[bythehour]

No.
An intoxicated driver will pose an immediate threat to others if they are allowed to drive again. Someone who is speeding will not.

I dunno. Which is worse - a driver who is smashed and probably doesn't know any better, or the person who *thinks* he's an F1 driver and intentionally rips through traffic at 50 over?

I think the guy who consciously thinks he's invincible is just as dangerous, and certainly more culpable from a legal standpoint.

Even in Raham's case - she was trying to pass a semi. Let's say she was clocked at her highest speed during the pass. How fast was she going before the pass to hit 151?

[raymondly]

No.
An intoxicated driver will pose an immediate threat to others if they are allowed to drive again. Someone who is speeding will not.

Odds are (I hate statistics)
someone who has been caught driving impaired, has driven impaired before
someone who has been caught driving a high rate of speed, has driven at a high rate of speed before
Both are threats

[fastlayne]

Even in Raham's case - she was trying to pass a semi. Let's say she was clocked at her highest speed during the pass. How fast was she going before the pass to hit 151?

Her speed was not 151, not 150, not 149, not even 139.

Let me help you with the facts.

She was being followed by an officer, who clocked her at 131 in an 80 zone. Do you really think that the officer clocked her at 132, 135 or 139, but gave her a break and reduced the speed to 131?