Sunday, September 13, 2009

National Post editorial board: The beginning of the end for a stupid law

Posted: September 11, 2009, 8:30 AM by NP Editor

So the Attorney-General of Ontario says he believes -- contrary to an opinion handed down last week by Ontario Court Justice Geoffrey Griffin -- that the province's stunt-driving law is wholly constitutional, and will be upheld on an appeal he intends to make. Well, perhaps it is all for the best that appellate courts will quickly get to review, and trample, the odious provision that makes exceeding the posted speed limit by 50 km/h an "absolute liability" offence that effectively allows for no defence by the accused. Judge Griffin's ruling is only binding on justices of the peace; by taking the matter to a higher court, Attorney-General Bentley is risking a more permanent, unconditional and thorough reversal.

One says "risking," but the outcome is as certain as any such matter could imaginably be. The absolute liability provision in the stunt-driving law could not be more obvious or ostentatious in its unconstitutionality. The Charter of Rights says that an accused person is "to be presumed innocent until proven guilty," but the norms underlying the notion of proof of guilt are much older -- in a way, more deeply entrenched in our common understanding of the law and our relations with the state. Since time immemorial, prosecutors seeking to convict on an offence have had to meet a dual test; that the illegal act or omission actually happened and that the accused intended to do wrong, or was somehow careless or negligent. In short, that they possessed mens rea. It's in Latin, which is a useful hint at how old the concept is.

The law dismisses the requirement to prove intent when it comes to lighter penalties such as the loss of driving privileges, but it is platinum-clad Canadian law, established in the B.C. Motor Vehicle Reference of 1985, that absolute liability cannot lead to a risk of imprisonment, or indeed to any penalty that impinges upon the "life, liberty and security of the person." The attorney-general who created the stunt-driving law ought to have known that it would collapse the first time it was challenged -- indeed, that no judge who was aware of Charter jurisprudence would have any other choice. But Michael Bryant is, understandably, too busy with personal matters at the moment to offer an explanation of why he wasted the time and effort of Ontario courts framing and debating legislation that was patently unconstitutional.

Mr. Bryant is an easy target here, but one notices that the case which led to Judge Griffin's ruling exhibits signs of a sickening failure of human sympathy and social reasoning on the part of police and prosecutors. Jane Raham was caught just one km/h over the stunt-driving limit while trying to pass a truck on Highway 7 near Kaladar, Ont. She could have based a defence on the inherent inaccuracy of a measurement of her speed taken from a moving police car; instead, she and her lawyers --pardon the metaphor -- took the high road, acting for the benefit of all citizens.

As Justice Griffin observed, Ms. Raham is not, in any ordinary sense of the word, a "stunt driver"; she is a grandmother who didn't want to stay in the blind spot of a truck, or in the passing lane of a highway, any longer than necessary. This seems not only natural, but indicative of a positive, sensible road awareness and concern for safety (not to mention a willingness to step on the gas that is quite laudable in an older person).

But inexplicably, nobody decided to give her the benefit of the doubt and revise the stunting ticket before this matter even reached a courtroom. Why not? Are Ontario's police nothing but unthinking automatons determined to see the law upheld at any cost in human suffering and fear? We certainly hope not -- and think not in most cases. But the danger that some of them might be is one more reason the law should not stand in its current form.

National Post

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