On grandmothers and stunt driving

Pulat Yunusov

Sometimes a court case comes along that I simply love. Usually I love a case because it teaches me something about law, or because it is uniquely Canadian, or because it’s worth blogging about. This week’s stunt driving decision out of the Court of Appeal does all three. In R. v. Raham, Ontario’s highest court taught us how badly some of our laws are drafted and how lucky we are to have Francophone Canadians. There is also a reminder about a shockingly easy way to risk jail for making a left turn. I love this case.

Highway 7 between Ottawa and Toronto and grandmothers—I don’t know if there is something about this mix that leads to major debates in penal law, but on April 29, 2008 a woman passing a truck began an important case that culminated in an Ontario Court of Appeal decision on Thursday. Ms. Raham was driving home to Oakville from the Ottawa area and speeding. Closely in front of her was a tractor trailer, also speeding. They both were speeding at about 90 km/h in an 80 km/h zone. Ms. Raham stepped on it and started passing the truck.

It must have been a long truck because she kept accelerating until a diligent police officer driving behind her clocked Ms. Raham at 131 km/h (51 km over the limit). She did slow down after passing the tractor trailer—to 110 km/h. It was probably then that the officer pulled a surprised Ms. Raham over and charged her with “driv[ing] a motor vehicle on a highway while performing a stunt, to wit:  driving at a rate of speed that was 50 kilometres per hour or more over the posted speed limit.” And that’s how a grandma was charged with stunt driving—a provincial offence punishable by a fine between $2000 and $10,000 or by up to six months of jail, or both. I am not even talking about licence suspension.

Ms. Raham’s lawyer, assuming she had one, didn’t like this charge. In Canada, if a penal law allows for jail time, it must contemplate the state of mind of the accused. There are two options: either the prosecutor must prove that the accused knew or should have known he/she was committing the prohibited act (full mens rea offences), or the accused should be able to raise the defence of due diligence (strict liability offences). This defence means you did everything you were supposed to do but the prohibited act still took place. In both cases the state of mind of the accused matters for conviction or acquittal. Our constitution always requires this when you are accused of something that can get you in jail. No jail without fault.

For some offences fault is not required. You can never go to jail for those. Ordinary speeding, parking, talking on your cellphone while driving (unless you kill someone), etc. come to mind. It doesn’t matter if you knew you were parking in the fire lane or if your speedometer was broken when you went 10 km/h over the limit. The law will punish you regardless of your fault. These offences are called absolute liability offences. Because punishments are relatively light, offences are frequent, and the threat to public safety is serious, the law wants quick justice without delving into your moral blameworthiness.

So Ms. Raham or her lawyer thought the stunt driving law allowed jail for an absolute liability offence. On their reading of the law, all you needed to do to commit the offence of stunt driving was to go 50 km/h over the limit. The law didn’t say anything about the mental state of the accused or if the fault was relevant to conviction. But it did threaten jail. Regular speeding offences are absolute liability offences. And the act they prohibit is identical to the stunt driving offence. The cop who pulled Ms. Raham even had a choice between a regular going-50-over-the-limit charge or a stunt driving charge. I guess the cop wasn’t in a forgiving mood that day.

The Justice of the Peace who tried Ms. Raham threw the constitutional argument out of the window and convicted the grandmother. She appealed to the Ontario Court of Justice, which acquitted her and declared the Ontario stunt driving law unconstitutional. It is from that decision that the government appealed to the highest court of Ontario. On Thursday, the Court of Appeal said the stunt driving law was constitutional.

The lower court’s theory that the Court of Appeal rejected was simple. Even, if stunt driving was a strict liability offence, its nature gutted any due diligence defence. The judge couldn’t wrap his head around how anyone could prove they did everything they should have done to avoid going 50 over if they were obviously speeding. He said you can’t prove you didn’t know you were speeding if you were going at least 50 over. And if you certainly knew you were speeding, how could you prove you did everything you were supposed to do to avoid going over 50? So your defence of due diligence would always fail making the offence effectively an absolute liability offence.

The Court of Appeal disagreed. Justice Doherty wrote that “[t]he 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.” Even if you are going 49 over, but try really hard not to go 2 km/h faster, you will not be convicted of stunt driving if you do go over despite your reasonable efforts. Well, good luck with that in court, if you are accused of stunt driving. But you get the idea.

Of course, the legislature could have spared the courts so much legal wrangling if they drafted their laws better. We wouldn’t even be talking here if the Ontario Parliament expressly included the due diligence defence in the law. But they went far beyond just forgetting the defence. Here is the wording of the statute: “No person shall drive a motor vehicle on a highway in a race or contest, while performing a stunt or on a bet or wager.”

A big part of the appellate decision is figuring out if these words mean two offences: a stunt or a bet, both in a race on a highway, or if they mean three offences: a race, a stunt, or a bet, all while driving. In the first case, the stunt offence would include elements of the race offence that contemplates the state of mind (no constitutional issue). In the second case, the stunt offence is stand-alone and figuring out the state of mind component is up to the courts (a constitutional issue).

The Court of Appeal preferred the second interpretation. And one of the decisive factors in its decision was the French version of the law, which was pretty straightforward unlike the English version. There you go: thankfully we have French-speaking Canadians and a constitutional requirement of bilingual laws. If one version of the law looks like it was drafted by a serpent from the tree of knowledge, we always have the other version for backup.

And the final lesson of this case is that you can go to jail for dashing in front of the waiting traffic in the opposing lane to make a left turn when the light switches to green. Seriously, check s. 172 of the Highway Traffic Act and s. 3, item 8-iv of Ontario Regulation 455/07.


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