Grandmother vindicated by Ont. stunt-driving ruling
Published Wednesday, September 9, 2009 11:50PM EDT
A 62-year-old grandmother feels justice was done in a court ruling that has thrown how Ontario prosecutes so-called stunt drivers into a tizzy.
"Truthfully, I cried all the way home," Jane Raham told CTV Toronto on Wednesday, recalling the day that her Audi got impounded after an OPP officer clocked her exceeding the speed limit by 51 kilometres per hour. "I felt that the punishment did not fit the crime."
The 62-year-old had been speeding up to pass a truck on Highway 7. Raham had been in Kanata, visiting her daughter and new twin granddaughters and was returning to her Oakville home. A justice of the peace found her guilty of stunt driving.
"If one were to describe a stunt driver, the appellant would not immediately spring to mind," Napanee Judge G. J. Griffin said last Friday in his ruling overturning Raham's conviction.
The judge said convicting someone who is "morally blameless" of an offence that carries a jail sentence as its penalty breaches the Charter of Rights and Freedoms.
"Essentially, his decision was that somebody who is speeding and doing nothing but speeding shouldn't be exposed to the possibility of a jail sentence," said Brian Starkman, Raham's lawyer.
Toronto-based criminal lawyer James Morton said he was "really surprised" at the decision but that the judge is probably right.
By law, speeding is considered an absolute liability. A driver can't argue they didn't know they were speeding and hope to get acquitted.
However, the driver could very well be "morally blameless," meaning the motorist thought she was going at the speed limit even though she was not, Morton said.
"The defence of due diligence is not a defence because of the way the legislation is written," he told ctvtoronto.ca. "You would still be convicted even if you tried not to speed."
Ontario's attorney general said that the province will appeal the ruling.
"From time to time you get decisions that are ones that you wish to appeal, and we'll be seeking leave to appeal this one," Chris Bentley said. "It's important that people understand that in the meantime, the provisions are still in effect and the police can still lay charges."
Sgt. Dave Woodford told CTV Toronto the legislation is still being enforced because the law has been effective in reducing the number of fatalities on Ontario highways by about 30 per cent in the last two years since it was enacted.
"This piece of legislation is helping us get to be number one (in road safety) not only in Canada but in the world," he said.
On Sept. 30, 2007, Ontario enacted provisions of the Safer Roads for a Safer Ontario Act that allowed officers to immediately seize the car of any motorist caught driving more than 50 km/h over the posted speed limit.
Aside from having their car towed for a week, motorists automatically have their licence suspended for seven days. Drivers also face a hefty minimum fine of $2,000.
The maximum fine is $10,000, but a person could also be jailed for up to six months.
"The judge didn't say licence suspension or a car tow was unconstitutional. What he said is that a conviction for stunt driving by speeding is unconstitutional," Morton said.
Street racers who are nabbed under this legislation would not be affected by the judge's ruling. They would be tried under a different subsection of the law that deals with racing in particular, Morton explained.
The Crown would have a hard time reversing the judge's decision at the Court of Appeal, he said.
Prosecutors had a chance to argue the judge's decision using Section 1 of the Charter, which essentially says that a breach can be justified if it shown to be reasonable in a free and democratic society. However, in court Friday, the Crown conceded it could not argue with the judge.
Morton said there are hundreds of cases in the system where people have been charged with stunt driving. Now the defendants have an excellent chance of getting the charge thrown out in court.
"This (ruling) is very important," he said. "It seems to me that the judge is probably right but my instinct is that it can be reasonably justified. Going over 50 kilometres is a serious offence."
With a report from CTV Toronto's Austin Delaney and files from The Canadian Press