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Defence of driving: Many parts to car law

Wednesday, June 24, 2020 @ 1:25 PM | By Nathan Baker


Nathan Baker %>
Nathan Baker
The kind and number of offences relating to driving and “traffic court” are enormous. Since driving varies between urban and rural spaces, based on weather, traffic and innumerable other factors the rules vary largely based on the situation as well.

Since it is highly regulated there are wide variations in the regulated conduct and the punishment for failing to adhere to the regulated standards. Driving law is largely contained in statutes like Ontario’s Highway Traffic Act but also touches things like insurance, liquor and cannabis licensing and municipal bylaws.

While speeding is the most common type of offence in Ontario, red light offences produce the greatest quantum of fines. There are roughly half as many red light offences compared to speeding, but fines for red light offences account for around 65 per cent more fines by dollar amount. This may have to do with the proliferation of red light cameras.

The set fine for failing to stop at a red light or proceeding improperly is $260. In the case of red light cameras, the owner accrues the fine unless the actual driver comes forward. There are no demerit points unless the actual driver is identified. It can nonetheless affect insurance rates. As it is an absolute liability offence, there is no defence of due diligence.

Driving without insurance contrary to the Compulsory Automobile Insurance Act carries with it some of the largest fines in traffic law. This is because the financial incentive of not paying insurance premiums has to be overshadowed by a sizable fine or else people may lack decide that the risk is worth taking. As a result, first time offenders face a minimum $5,000 fine and second time offenders a $10,000 fine. 

Again, this is an absolute liability offence. Perhaps not surprisingly, this offence also accounts for the greatest quantum of fines currently in default at over 30 per cent of all fines in default. Section 59(2) of the Provincial Offences Act allows for the imposition of a fine less than the minimum where the minimum fine would be unduly oppressive or otherwise not in the interests of justice. This is an important tool, especially for an impecunious or mistaken client, who may be guilty but should receive a lesser fine. While prosecutors generally will stick to asking for the statutory minimum, many justices will be lenient when circumstances merit it.

It is important to take all aspects of an offender into consideration when sentencing including Gladue issues (R. v. Gladue [1999] 1 S.C.R. 688). This was recently recognized in R. v. Doxtator 2019 ONCJ 420.

An increasing area of danger and thus regulation is with relation to the use of handheld devices while driving; i.e., texting and driving. This is an absolute liability offence and includes conduct of merely holding the phone even without using it as found by the Ontario Court of Appeal in R. v. Kazemi 2013 ONCA 585.

The phone need not be able to actually send or receive data but merely capable of doing so. In R. v. Pizzurro [2013] O.J. No. 4299 the Ontario Court of Appeal held that requiring the prosecution to prove as much would be unreasonable. Even interacting with the device otherwise loose in your car may be a problem. While R. v. Partridge  [2019] B.C.J. No. 380 dealt with a cell phone wedged between the front seats of the vehicle was not in contravention of the distracted driving laws because “the mere presence of a cell phone within sight of a driver is not enough to secure a conviction” tickets have been issued for activities as seemingly benign as changing a song on a phone secured in a mount. In R. v. Templain 2019 ONCJ 354, the court convicted the accused of the offence where he was holding a wireless speaker in his hand. The court noted that handling the wireless speaker made out the offence.

The increasing prevalence of cell phone use while driving is causing greater risk and this offence is likely to see escalating fines, suspensions and perhaps jail attached to it in the near future. There are very few defences to such charges but consideration may be given to driving in contravention of licence condition. Otherwise, penalties now range from $500 and up for fines and mandatory licence suspensions of three, seven and 30 days for first, second and third offences. 

Open alcohol, cannabis not in a sealed container, seatbelt violations and failing to follow any number of signs can lead to penalties ranging from fines to jail, probation, licence suspensions, demerit points and impact on other things like insurance. It is important to understand all of these consequences when determining the proper course of action in dealing with a traffic ticket or traffic court.

Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker LawHe takes special interest in impaired driving cases, especially those involving drug impaired driving and impaired boating. E-mail him at nathanbakerlaw@gmail.com.

Photo credit / mechanick ISTOCKPHOTO.COM

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