No one should be punished because they go to trial. The state is supposed to have to prove that a person charged with a crime is guilty before that person can be punished. This is a long established, and one would think, dearly held principal. Still it is a principal which has been increasingly ignored. Suspensions of licenses, without trial, or proven cause has been the norm for many years. As of August 3, 2010, the provincial government of Ontario will add to this by formally establishing a different sentencing regime for those who plead guilty, rather than those who go to trial and are found guilty.

If you are charge with impaired driving or over 80 and plead guilty within 90 days of being charged you may be eligible for a sentence including a 90 day suspension followed by 9 months of driving in a vehicle with an ignition interlock device installed. If however you go to trial and are convicted the suspension period would be 6 months, if you are allowed the ignition interlock option. This formally establishes two different penalties for the same crime. The penalties differ only because of the exercising of a constitutional right.

There ought not to be penalties for exercising rights. You ought not to be fined for expressing an opinion. You ought not to be sentenced to twice as long in jail because you decided you wanted to call a lawyer. You ought not to have a greater penalty because you thought you should know what you are being charged with. It is not fair to demand a greater penalty, because you ask the crown to prove that you committed a crime.

The Court of Appeal for Ontario has upheld the province’s stunt driving laws. The court recently overturned a Superior Court of Justice decision which had declared the stunt driving law unconstitutional.

The court has declared that the offence of stunt driving is strict liability and as such it can carry a penalty of jail and still be constitutional. Stunt driving has been defined as driving a vehicle at a rate of speed in excess of 50 km over the speed limit. The Court had previously stated that speeding was an absolute liability offence. To overcome this apparent contradiction the Court has proclaimed that the accused person could demonstrate that he had exercised due diligence in maintaining a speed less than 50 km over the speed limit but would then still be convicted of the lesser included offence of speeding 50 km over the speed limit.

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In the criminal law there are various defences. One of the least utilized is the defence of necessity and its variant duress. Necessity a defence because it negates the requirement that a wrongful act also be accompanied by malicious or wrongful intent. In latin: mens rea. What is intended is avoiding a grievous harm, such as death, rather than committing a crime.

The classical example is the person who is lost or stranded on a mountain, sure to die of exposure. This person in order to avoid death would be justified in breaking into a cottage in order to avoid death by exposure. The prohibited act, break and enter, is rendered lawful by the “necessity” of avoiding death.

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Some people agree with the provincial government’s stunt driving law. This law allows a police officer to seize your car and suspend your license on the spot, because he decided that you were traveling 50 km over the speed limit.

Stunt Driving Law Is Unconstitutional

Recently, two decisions have struck down the Stunt Driving law of the Province of Ontario. It is difficult to disagree with the notion that this law is itself an offence against the citizenry. Nevertheless, the Stunt driving laws were struck down for the wrong reason. In short they were declared unconstitutional because they allowed the possibly of jail as an ultimate punishment for an absolute liability offence. An absolute liability offence requires only that the prohibited act be proven. There is no defence of due diligence or a mistaken belief in an innocent set of facts. The parking ticket is the seminal example of an absolute liability offence.

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There have been some high profile cases where a jury could not come to a decision. In these cases the court declares a hung jury and the defendant is not convicted. If he is out on bail, he remains on bail subject to whatever conditions might govern him as a result of his bail. This is often described as a win for the defence in the media and by politicians.

In the sense that there is no conviction. This is true. Still the case had not been determined and the normal course is to retry the accused person on the same charge. A new date is picked and the process starts over. A new jury is picked and the trial begins anew.

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Politrics From Mr.Harper

Stephen Harper prorogued parliament on December 30, 2009 meaning that this year will start with no sitting parliament, and no legislation being legislated. A great furor is winding itself up among the citizens of Canada. This is Mr. Harpers’s second use of suspending parliament to avoid politics. Last year, he suspended parliament to avoid being ousted by the “coalition of the Liberals, Bloc and NDP This year the rogue has prorogued to prevent further embarrassment from the inquiry into the torture of Afghans by Afghans, in Afghanistan.
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They call it “Maple Leaf Sports and Entertainment”. I call it a material misrepresentation. I do not know what the Maple Leafs play but watching them makes it difficult to recognize as a sport and it sure is not entertainment (not for me anyway).

The pretense of the sport of hockey or entertainment going on at the Air Canada Centre when the Maple Leafs play is a material misrepresentation which ought to create cause for a class action suite.

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A Non-alcoholic Too Susceptible For Such Forcible Stops!!!

I do not drink. I do not drink because the penalty for drinking and driving is out of all proportion to the offence. I reason that by never drinking, there is no possibility that I would be convicted of impaired driving or driving while having over 80 mg of alcohol in my blood. I have however still been pulled over in Ride programs. The police pull over a lane of traffic and force me to wait until they are able to able to come and ask me questions, like “Have you had anything to drink tonight?” The answer “no” together with an absence of the odour of alcohol and no bottles or beverages in the car will get me on my way. It is a waste of my time and it is a waste of the officers time; who ought to be out detecting reasonable and probable cause to stop or search or demand samples from someone who likely did something wrong. While the police are harassing law abiding citizens, someone is committing a crime and getting away with it undetected.
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The federal government has passed a law which ends 2 for 1 credit for time served in jail prior to trial or plea. This law was given royal accent in late October of 2009. It seems to be another popular “law and order” move by our government.

There general agreement that there ought not to be more people waiting for trial in jail than are serving sentence in jail. The government is trying to ease the backlog by pushing people to go to trial faster or in actual practice to plead guilty faster.

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The province has now decided to prosecute truck drivers for smoking in their trucks. In a bit of perverted logic the powers that be have declared that a truck is a workplace and as such is governed by the no smoke in the work place statutes.

This sort of contorted application of our laws is plain and simple tyranny, designed to collect money through fines and force people to conform for the sake of being able to force them.

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