Ontario’s Stunt Driving Law is Unconstitutional, Says Court
It was an early Saturday morning last fall when I decided to take a road trip to see the changing colour of the leaves. I was driving northbound on Hwy 400 approaching the city of Newmarket. It was a cool sunny day without a single cloud in the sky. And with no other cars in sight, I felt as if the world stood still.
As I drove mindlessly on the highway enjoying the scenery around me I had completely lost track of how fast I was going. I remember looking down at my speedometer that indicated I was driving at a speed of 155 km/h. That is some 55 km/h over the posted speed limit of 100 km/h. I immediately stepped on the breaks when I was reminded of the recent amendment of the Ontario’s Highway Traffic Act that define “stunt drivers” as anyone who drives more than 50 km/h over the posted speed limit.
Should have I been stopped by the police last fall, my driver’s licence would have been immediately suspended, my car would have been impounded on the spot and I would have been ordered to pay a fine of no less than $2000.00 upon conviction. And that’s not all. According to the amendment, the judge could have also sent me to jail upon conviction. You heard me right, I could actually go to jail for speeding in Ontario. Fortunately, I was able to escape the sight of any police cruisers and I ended up safely at my final destination to enjoy the weekend get-away.
But a 62 year old grandmother from Oakville named Jane Raham was not so lucky last year. She was, indeed, charged and convicted for “stunt driving” for speeding at a rate of 131 km/h in an 80 km/h zone. Ms. Raham appealed her conviction.
In reversing the conviction, an Oakville judge recently declared that “stunt driving” law in Ontario is unconstitutional. That’s the court’s way of saying that the law itself is illegal and therefore cannot be enforced in Ontario. The judge reasoned that “stunt driving” law has the potential to send innocent people to jail who may not have necessarily intended to drive at such a high rate of speed. For example, this can happen when drivers are trying to safely overtake another vehicle by briefly speeding, or at times when drivers become distracted and become momentarily oblivious to the rate of speed.
The judge’s ruling stems from a constitutional principle as well as the basic principle of criminal law that guard innocent people’s liberties. These principles ensure that, under Canada’s justice system, only the people who commit offences with “guilty mind” are sent to jail. And because the “stunt driving” law has the potential to imprison people who may not have necessarily intended to speed, it violates these principles.
Following this ruling, the Ontario’s Attorney General, Chris Bentley, advised that the government will appeal the decision to higher court. And in the meantime, I’ll continue to set my cruise-control at 148 km/h on provincial highways to make sure I don’t speed over 50 km/h of the posted limit.
By John J.S. Park, J.D.
Criminal Record for the Innocent?
Facing a criminal charge is one of the most difficult ordeals people may face in life. Even if one is guilty of committing the offence the real appreciation of his or her ill conduct is only realized once they are caught. Even for the hardened criminal the mere thought of going to jail or to have his liberties taken away can be devastating. And for the truly innocent who is being wrongfully accused the added sense of anger and bitterness can make it even worse.
For the wrongfully accused, the fight towards an acquittal is much more than a fight to stay out of jail. It is a fight to clear his name that has been smeared with prejudice. And this is why one of the most rewarding parts of my job as a criminal defence lawyer is witnessing the joy in my clients’ faces after an acquittal. Finally, after a lengthy battle with the authorities, loss of reputation in the community and in the workplace, not to mention the thousands of dollars spent on legal fees, an acquittal gives the wrongfully accused the chance for a fresh start. Or does it?
In 2002, a social worker named Magdy Tadros was wrongfully accused for sex-related offences against the children he was looking after in a group home. Within a week of being arrested the government took away his licence to operate the group home and it closed permanently. As an unemployed man in his 50’s one can only imagine the devastation he would have been through. And after a year and half battle, the prosecution withdrew all of his charges.
Looking to restart his career, Mr. Tadros began the process of looking for employment again as a social worker. Because Mr. Tadros was applying to work with children, his prospective employers asked for his consent to conduct what is referred to as the “Vulnerable Persons Search” (VPS). A VPS is different from a criminal records check and is often requested by government agencies and prospective employers who employ persons working with vulnerable persons such as seniors and children. That means in Ontario, most schools and agencies will request a VPS before hiring teachers and counselors. Although the police are not free to disclose any information about the applicant to the prospective employer, they can do so if the applicant consents to having that information disclosed. Realistically speaking, Mr. Tadros felt that he had no option but to consent to the employer’s request. Mr. Tadros’ VPS revealed that he was once charged with sex-related offences and those charges have been withdrawn. Needless to say that Mr. Tadros was unsuccessful in retaining employment as a social worker once this information was disclosed to the potential employer.
Mr. Tadros went to court and the judge granted his request to prohibit the police from disclosing the fact that Mr. Tadros was ever charged since, after all, those charges have been ultimately withdrawn. The police appealed the decision to the Court of Appeal for Ontario.
In a recent decision, the Court of Appeal ruled that police have the right to disclose withdrawn charges to prospective employers if VPS is requested. It was the Court’s view that since the consent from the applicant is required before the information is disclosed to the employer, the police are not violating any privacy rights.
So much for a fresh start…
By John J.S. Park, J.D.
