Catch the drift: How to deal with stunt driving
Tuesday, June 16, 2020 @ 10:49 AM | By Nathan Baker
Section 172 of the Highway Traffic Act includes driving on any bet or wager or in a race.
Stunt is defined in regulation to include lifting any tires from the roadway; i.e., “popping a wheelie,” drifting or skidding around a corner, doing doughnuts, driving beside another vehicle while needlessly in an oncoming lane, having a passenger in the trunk, driving from anywhere other than the driver’s seat, preventing another vehicle from passing you, hitting the brakes to affect someone behind you, driving intentionally close to another car, turning left at a green light when another vehicle is stopped and waiting to go straight or the most common — driving 50 km/h or more over the speed limit.
Upon being charged in Ontario, a person’s motor vehicle will be impounded for seven days and their licence will also be suspended for seven days. This is virtually unappealable except in limited circumstances of mistaken identity. Upon conviction there is a minimum fine of $2,000 and a maximum fine of $10,000. A driver’s licence suspension is possible for up to two years on a first offence and up to 10 years on a second offence. Up to six months jail is also a possibility.
Stunt driving accounts for less than one per cent of provincial charges in Ontario but is a charge that often sees headlines. It is a strict liability offence because there is the possibility of a jail sentence. As a result, a defence of due diligence is available. The Ontario Court of Appeal in R. v. Raham 2010 ONCA 206 said “the defendant must show he took reasonable steps to avoid committing the offence charged, not that he or she was acting lawfully in a broader sense.”
In that case Jane Raham was attempting to pass a tractor trailer. While passing, it seemed that the tractor trailer was speeding up and Raham became afraid and sped up further to get around it. As a result, she went 131 km/h in an 80 km/h zone. As the trial court assessed her evidence on the basis of an absolute liability offence, a new trial was ordered.
In R. v. Anghel 2010 ONCJ 652 the accused was convicted of stunt driving where he was intentionally driving at a speed just under 50 km/h over the limit based on what his speedometer was telling him. The court assessed his testimony by considering that he had not taken any steps to determine the accuracy of his speedometer or the GPS unit he relied on. As a result, he was not duly diligent in ensuring his speed was not over 50 km over the limit. A broken speedometer could not form a defence without some significant confirmation of accuracy on which the accused could rely and still be acting in a duly diligent manner.
Due diligence in cases involving speeding leading to stunt driving rely on an assessment of the unique facts of the case. These will include the speed and how significant the departure is from being 50 km/h over; i.e., it is more likely that a person at 51 km/h over the limit is acting diligently than someone going 100 km/h over the limit and excessive speed in a busy urban environment may be less defensible than on a large highway with a higher speed limit. The circumstances of the roadway, other drivers and the reasoning of the accused for exceeding the speed limit will be taken into account. The length of time the accused exceeds the limit will be relevant.
Since many of these charges relate to speed, the importance of disclosure of manuals for speed detecting devices like radar is of similar weight. Depending on the speed involved, a lesser offence as straight speeding may be appropriate. A prosecutor may reduce the speed if it is close to the 50 km/h over threshold or may insist on the actual speed even on a reduced charge of speeding.
Fines can be significant but probation limiting driving privileges or even suspensions are not uncommon even for first time offenders. Penalties involving jail of 90 days or less can be served intermittently but conditional sentence, or house arrest, is not available in provincial offence matters.
Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at email@example.com.
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