On grandmothers and stunt driving

Sometimes a court case comes along that I simply love. Usually I love a case because it teaches me something about law, or because it is uniquely Canadian, or because it’s worth blogging about. This week’s stunt driving decision out of the Court of Appeal does all three. In R. v. Raham, Ontario’s highest court taught us how badly some of our laws are drafted and how lucky we are to have Francophone Canadians. There is also a reminder about a shockingly easy way to risk jail for making a left turn. I love this case.

Highway 7 between Ottawa and Toronto and grandmothers—I don’t know if there is something about this mix that leads to major debates in penal law, but on April 29, 2008 a woman passing a truck began an important case that culminated in an Ontario Court of Appeal decision on Thursday. Ms. Raham was driving home to Oakville from the Ottawa area and speeding. Closely in front of her was a tractor trailer, also speeding. They both were speeding at about 90 km/h in an 80 km/h zone. Ms. Raham stepped on it and started passing the truck.

It must have been a long truck because she kept accelerating until a diligent police officer driving behind her clocked Ms. Raham at 131 km/h (51 km over the limit). She did slow down after passing the tractor trailer—to 110 km/h. It was probably then that the officer pulled a surprised Ms. Raham over and charged her with “driv[ing] a motor vehicle on a highway while performing a stunt, to wit:  driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit.” And that’s how a grandma was charged with stunt driving—a provincial offence punishable by a fine between $2000 and $10,000 or by up to six months of jail, or both. I am not even talking about licence suspension.

Ms. Raham’s lawyer, assuming she had one, didn’t like this charge. In Canada, if a penal law allows for jail time, it must contemplate the state of mind of the accused. There are two options: either the prosecutor must prove that the accused knew or should have known he/she was committing the prohibited act (full mens rea offences), or the accused should be able to raise the defence of due diligence (strict liability offences). This defence means you did everything you were supposed to do but the prohibited act still took place. In both cases the state of mind of the accused matters for conviction or acquittal. Our constitution always requires this when you are accused of something that can get you in jail. No jail without fault.

For some offences fault is not required. You can never go to jail for those. Ordinary speeding, parking, talking on your cellphone while driving (unless you kill someone), etc. come to mind. It doesn’t matter if you knew you were parking in the fire lane or if your speedometer was broken when you went 10 km/h over the limit. The law will punish you regardless of your fault. These offences are called absolute liability offences. Because punishments are relatively light, offences are frequent, and the threat to public safety is serious, the law wants quick justice without delving into your moral blameworthiness.

So Ms. Raham or her lawyer thought the stunt driving law allowed jail for an absolute liability offence. On their reading of the law, all you needed to do to commit the offence of stunt driving was to go 50 km/h over the limit. The law didn’t say anything about the mental state of the accused or if the fault was relevant to conviction. But it did threaten jail. Regular speeding offences are absolute liability offences. And the act they prohibit is identical to the stunt driving offence. The cop who pulled Ms. Raham even had a choice between a regular going-50-over-the-limit charge or a stunt driving charge. I guess the cop wasn’t in a forgiving mood that day.

The Justice of the Peace who tried Ms. Raham threw the constitutional argument out of the window and convicted the grandmother. She appealed to the Ontario Court of Justice, which acquitted her and declared the Ontario stunt driving law unconstitutional. It is from that decision that the government appealed to the highest court of Ontario. On Thursday, the Court of Appeal said the stunt driving law was constitutional.

The lower court’s theory that the Court of Appeal rejected was simple. Even, if stunt driving was a strict liability offence, its nature gutted any due diligence defence. The judge couldn’t wrap his head around how anyone could prove they did everything they should have done to avoid going 50 over if they were obviously speeding. He said you can’t prove you didn’t know you were speeding if you were going at least 50 over. And if you certainly knew you were speeding, how could you prove you did everything you were supposed to do to avoid going over 50? So your defence of due diligence would always fail making the offence effectively an absolute liability offence.

The Court of Appeal disagreed. Justice Doherty wrote that “[t]he defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.” Even if you are going 49 over, but try really hard not to go 2 km/h faster, you will not be convicted of stunt driving if you do go over despite your reasonable efforts. Well, good luck with that in court, if you are accused of stunt driving. But you get the idea.

Of course, the legislature could have spared the courts so much legal wrangling if they drafted their laws better. We wouldn’t even be talking here if the Ontario Parliament expressly included the due diligence defence in the law. But they went far beyond just forgetting the defence. Here is the wording of the statute: “No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”

A big part of the appellate decision is figuring out if these words mean two offences: a stunt or a bet, both in a race on a highway, or if they mean three offences: a race, a stunt, or a bet, all while driving. In the first case, the stunt offence would include elements of the race offence that contemplates the state of mind (no constitutional issue). In the second case, the stunt offence is stand-alone and figuring out the state of mind component is up to the courts (a constitutional issue).

The Court of Appeal preferred the second interpretation. And one of the decisive factors in its decision was the French version of the law, which was pretty straightforward unlike the English version. There you go: thankfully we have French-speaking Canadians and a constitutional requirement of bilingual laws. If one version of the law looks like it was drafted by a serpent from the tree of knowledge, we always have the other version for backup.

And the final lesson of this case is that you can go to jail for dashing in front of the waiting traffic in the opposing lane to make a left turn when the light switches to green. Seriously, check s. 172 of the Highway Traffic Act and s. 3, item 8-iv of Ontario Regulation 455/07.

Pulat Yunusov

(Post sponsored by AdviceScene)

7 Comments on "On grandmothers and stunt driving"

  1. Apparently we should add tortoises and hares to cars on the list of things that you can’t legally race on a highway:

    Horse racing on highway
    173. No person shall race or drive furiously any horse or other animal on a highway.

  2. I hate when people dash in front to turn left like that. People _should_ go to jail for that.

  3. Amusing (and terrifying at the same time):

    “on the Crown’s interpretation [ultimately accepted by the ONCA] driving a motor vehicle on a highway on a bet or wager is a stand alone offence under s. 172. Amicus suggests the example of a person who bets another person that he or she can drive to a certain location without disobeying any rule of the road. On the Crown’s interpretation of s. 172, if that person takes the bet and drives in accordance with all the rules of the road, he or she has committed an offence and is liable to a large fine, a potential jail sentence, a suspension of his or her driver’s licence, an immediate administrative suspension of that licence and the immediate impoundment of their vehicle.”

  4. Tony Morra | March 25, 2010 at 1:08 pm |

    I wonder whether it was at all considered by the Court of Appeal the validity of the Regulation for having gone beyond the scope of the legislation which only mentions stunts, betting, or racing; saying speeding by one self without endangering anyone on an open empty highway constitutes stunt driving is outside the purview of the legislation and cannot be added by regulation of the good judgement of an Attorney Genaral who is now facing manslaughter charges and enforced by sometimes abusive officers whose only reason for charging citizens is so that a companion can profit from the impoundment of the vehicle, what do you think?

  5. It’s fine to say “people should go to jail for that”. So switch places put yourself in prision for cutting in front of someone to turn left. Leave your famly and your home children and your job, which you will more then likely be excused from…especially after not showing up for 6 months then go over to the jail and live there for 6 months…eat there and live with thieves and others who have no regard for human decency…stop and think about that…because if it does happen to you your story will be very different I assure you.. This could also result in the loss of your house after your done paying the say…5000$ fine, renewing your licence, paying for the impound fees and your now dramatically increased insurence premiums..what about if this happened in a rental vehicle. Your financial situation will definitly be flipped around…What if this happened to you…is that fair for racing to turn left at a green light…An officer is maybe having a bad day what you did wan’t actually that bad…boom jail 10000$ in fines and no job… We have to really think about what this law is saying and the potential impact that can be passed out to the accused on the whim of a police officer…This law scares me, I find myself thinking that maybe it’s time to leave Ontario as reasonable judgement appears to be slipping away..I would like to find a way to send the government a message saying we want this law removed…for those of us who do…I would be interested inhearing ideas.

  6. John G, in support of your point, this is exactly what happened to me today. A young cop with his gun and badge charged me with stunt driving for making a left turn on a green light. I was turning on a 4 lane one way street so opposing traffic was far away AND they didn’t react when the light turned green. I made a safe turn onto the one way street and … the rest is history. Two things: if the opposite cars aren’t stopped at the light but moving towards it, no offense. If I would have turned on a red light, I would have been charged with … burning a red light I guess? So for waiting for the green, and seeing the other cars were gonna take additional time to move, I made my turn. Car was taken away, licence suspended and now I will hire an attorney to fight this immoral law. A 28 year old cop can decide, from his patrol car which was a couple of cars back in a different lane if an act which happened in 2-4 seconds was legal or not … or as he said: it’s not about the left turn on a green light, that’s legal. It’s the way you made that turn.

    God help us. This is becoming a police state and we just sit there and say: good for these crooks, they should go to jail. Well, I’m an honest hard working citizen involved in my community and live with my wife and our dog and only one traffic violation in the last 6 years (130km/h in a 100 zone). And now, I’m that guy. The schmuck that was left on a street corner in pouring rain as they took my car, licence and dignity.

    Well done. That’s why this law was passed, isn’t it? We elected these people who gave cops that much power. I guess I am guilty of something afterall … putting the wrong people in office.

    I trust that smart lawyers and lawmakers will work on this law and move to abolish it based on basic human rights of having a fair trial before one can say you are guilty … of making an “improper left turn”. This is what the ticket says, no joke.

    Thanks for reading.

  7. Yes the wonderful Section 172 I have had some experience with it. What boggles my mind is that if the defense of due diligence is available and a judge believes the accused that he or she was not going say 50 over the speed limit but was going only 30 over the speed limit shouldn’t the judge acquit the defendant of the stunt driving charge and that is the end of the case. What I find is that the judge convicts the defendant for speeding even though the charge was not speeding because the defendant testifies that no I was not gong 50 over the speed limit I was going about 30 over the speed limit. The judge has an option to either believe the defended or not believe the defended. If the judge believes the defended than it means that the charge of stunt driving is dismissed but why is it that a judge can convict for speeding even though the defendant was not charged for speeding.

    Also in regards to going 50 over it makes absolutely no sense to add that to the Section 172 why not make the fines and penalties of speeding 50 over the limit under section 128 higher or more stringent.

    So lets say this person is now after trial convicted of speeding and not stunt driving. The defendant ends up paying fines for the speeding. So what happens to the 7 day suspension that goes on the defendants record for being charged for stunt driving. What happens to the money that the defendant pays to the tow yard… what in the world happened to our constitutional right of “innocent until proven guilty in a court of law”. If some bodies charged and ends of getting a punishment for it whether a fine or a suspension or paying costs or all of the above doesn’t that assume that that person is guilty already and lets say those charges are dismissed why in the world should the abstract of the defended still indicate there was a 7 day suspension and also end up paying for the tow and storage costs.

    I apologies for rambling on about this but there is something wrong with our system and how come no body is really doing anything about it to make changes. I am sure people have attempted but there is aught to be something possible.

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