TORONTO - The Ontario Court of Appeal on Thursday overturned a lower court ruling that found the province's 2007 speed racing law was unconstitutional, and ordered a new trial for an Oakville woman.
The problem for the court is a provision in the law that includes a penalty of up to six months in jail, in addition to fines ranging from $2,000 to $10,000, the seizure of the vehicle and a licence suspension of up to two years after a first conviction.
"The stunt driving provision provides for the potential of incarceration, the speeding provision does not," wrote Justice David Doherty for the three-judges on the Court of Appeal.
"This distinction is constitutionally significant. The Legislature cannot ... imprison without fault."
The Crown had appealed after Justice Geoffrey Griffin of the Ontario Court of Justice in Napanee overturned the guilty verdict against Jane Raham, 62, last September.
The grandmother of four was charged in April 2008 with doing 131 kilometres per hour in an 80 kilometre per hour zone, which brought an automatic conviction for stunt driving.
The provincial law labels 50 kilometres per hour or more over the posted speed limit as stunt driving, which means much more severe penalties than a normal speeding charge.
Raham had testified she sped up to pass a large truck on Highway 7 as she was driving home from the Ottawa area.
"I did, out of a sort of fear reaction, pick up speed to get past him," she told the court.
Judge Griffin overturned her conviction last fall, saying the way stunt driving is classified means once the offence is proven by facts, it cannot be defended.
"If one were to describe a stunt driver, the appellant would not immediately spring to mind," the judge wrote in his ruling.
However, the Court of Appeal ruled Griffin erred in finding the law unconstitutional because it requires no criminal intent when speeding.
"Fairness dictates that the respondent should have a new trial at which she will have the opportunity to advance a due diligence defence if so advised," wrote Justice Doherty.
A due diligence defence on the stunt driving charge amounts to a claim that the defendant took all reasonable care to avoid committing the offence.
"I am pleased with today's decision by the Ontario Court of Appeal that upheld the constitutionality of the street racing provisions," said Attorney General Chris Bentley in a statement.
"I would like to thank the Crowns and police who work hard every day to keep our roads safe."
Raham who has 60 days to appeal the Court of Appeal's ruling overturning her acquittal, wasn't the only one to convince a court the stunt driving law was unfair.
A Newmarket judge dismissed stunt driving charges last fall against Alexandra Drutz, an 18-year-old woman charged with going 157 kilometres per hour on Highway 407 north of Toronto.
Justice Peter West ruled that having a potential penalty of up to six months in jail for driving 50 kilometres an hour over the posted limit violates the Charter of Rights because the law does not allow the accused to present a defence.
