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.
Speeding Not An Absolute Liability Offence
Although speeding would not appear to be an absolute liability offence because one would think that it would be a defence to say: “I was not driving the car.” Perhaps you loaned the car to your wife or son. Perhaps the car was stolen. It should also be a defence to demonstrate that your speedometer was in error. However in order to allow the government to persecute us with photo radar, the idea that speeding was an absolute liability offence, was introduced. Now it didn’t matter anymore if you were proven to be the driver or not. It didn’t matter if you had intended to and thought you were going the speed limit. Guilty. If speeding is an absolute liability offence and stunt driving is speeding really badly, stunt driving must be an absolute liability offence too. But could go to jail. This is the legal problem. The offence can result in you going to jail and that is not a permissible penalty under an absolute liability offence. So the law must be struck down.
This is not a serious problem to the province. All it has to do is amend the law to eliminate the possibility of jail time. Still the law is unjust. Cars can be extraordinarily expensive. They generally represent a years income for the person driving them. That sort of asset ought not to be seized without due process, by whim or fiat.
Driving 50 over in a 50 zone is a lot different than driving 50 over on the 401. The 401 was designed for speeds in excess of 150km. A residential side street was not. Ignore the lack of peril on a divided highway, in contrast to the real danger of driving at excess speed in an area with pedestrians and narrow roadways, lots of intersections and innumerable driveways.
A Fundamental Violation Of Justice
We are left with another example of no due process. No fundamental nor procedural fairness and no justice in the new justice system. The new justice system seems to be designed by someone who read a Judge Dredd comic book. The police officer is the prosecutor and the judge, all rolled into one. And guess what: the police officer just happens to be right; every time. You are allowed to burden the system with a trial but only after you have already been punished by license suspension and vehicle seizure, by the officer.
The powers to charge, to prosecute and to punish must be separated. When these powers are not separated (particularly the powers to charge and to punish), the basis of the criminal and quasi-criminal law is overturned. You are presumed innocent until proven guilty. This is supposed to the law of the law. It is supposed to be a constitutional precept. But when the police have the power to charge and then at the very next moment punish, then they have assumed your guilt and levied a penalty which was designed to circumvent the inconvenient technical requirement of a trial. This might save some time, it might save some money, but it costs us our freedom and fairness under the law.
