"Ticket not on docket"

[bushati]

...

[Baggsy]

Whether you were going 200 or 60 is always relevant. If you're going 60 and you do something stupid, you can dent and get blood on my car. At 200 you have the capability to hurt the occupants.

I'm not sure if you've been on the 401 lately, but the average speed has come down significantly. The left lane bandits are still a big accident risk to everyone on the road, but you rarely see convoys of vehicles flying down the left lane at 160+ anymore.

While I don't agree with nailing people to the wall before they get to court, the law has made some people start paying attention to what they are doing. Whether or not that is significant to our joint safety is yet to be determined.

[OpenGambit]

I am not bothered at all by your charge. Generaly i don't think a violation of traffic laws (by itself) says anything about a person's character.
I mention the fact that you are not innocent by your own admission in response to those posts that imply that you were charged without any justifcation and suggested misbehaviour on behalf of the cop, some of which have now been deleted.

The fact of the matter is, dispite the issues with HTA 172 which i have made clear in more than just this thread. I just don't find your case to be a particularly sympathetic one.
After all, you deserve some charge and you know it. You got lucky and thats great.

My personal riding style and driving record isn't your concern. But the ppl that ride with me know that the limits on my riding are dictated by my skill, not the law.

[Rob MacLennan]

I think that we can discontinue the question of guilt or innocence now, and concentrate on the legal aspects of the question. As I've stated in the sticky post, at the top of the forum, that's what this forum is for.

[OpenGambit]

Just to point out.

The constitutional problem with HTA 172 lies within the combination of Jail time, and absolute liabiilty (lack of a due diligence defense).

While that would make the entire law constitutional as written, there is nothing unconstitutional about the impound aspect, which is the part people actually complain about here.

[Rob MacLennan]

Just to point out.

The constitutional problem with HTA 172 lies within the combination of Jail time, and absolute liabiilty (lack of a due diligence defense).

While that would make the entire law constitutional as written, there is nothing unconstitutional about the impound aspect, which is the part people actually complain about here.

On the basis that it levies a penalty prior to trial, which can't be demonstrated to have the same sort of undeniable benefit to the public that stopping a presumed impaired driver does. That is the measure that so many HTA 172 supporters point to, as showing it to be a reasonable penalty.

[OpenGambit]

On the basis that it levies a penalty prior to trial, which can't be demonstrated to have the same sort of undeniable benefit to the public that stopping a presumed impaired driver does. That is the measure that so many HTA 172 supporters point to, as showing it to be a reasonable penalty.

Well the reasonablness of the penalty is dependent on the facts.. so if you have a "real" street racer, we can probably assume that the impound does have a undeniable benefit to the public, thus reasonable.
In the case of the soccer mom passing the truck as in the article linked above, that benefit is probably non-existent and unreasonable.

That being said, from a constitutional perspective, we can have unreasonable penalties. as long as they are not cruel and unusual.
So while I agree that HTA 172 can be in cases, unreasonable. I have a hard time with the leap to unconstitutional.
That being said. We as a society should definately strive to be reasonable at all times.

[Rob MacLennan]

Well the reasonablness of the penalty is dependent on the facts.. so if you have a "real" street racer, we can probably assume that the impound does have a undeniable benefit to the public, thus reasonable.
In the case of the soccer mom passing the truck as in the article linked above, that benefit is probably non-existent and unreasonable.

That being said, from a constitutional perspective, we can have unreasonable penalties. as long as they are not cruel and unusual.
So while I agree that HTA 172 can be in cases, unreasonable. I have a hard time with the leap to unconstitutional.
That being said. We as a society should definately strive to be reasonable at all times.

If we have a 'real' street racer, then he can and should be charged under The Criminal Code. The soccer mom's act likely doesn't rise to such a level, that it warrants up-front penalties.

To me the term 'unreasonable' equates to 'unconstitutional', as there is a set measure under law for what qualifies as such.

[Brian P]

I think a lot of the problem is that the "man in the street" interpretation of what should be "unconstitutional", is very different from the "lawyer" interpretation.

The legal system is obviously using the "lawyer" interpretation, but I have a funny feeling that those who wrote the constitution were probably envisioning something much closer to the "man in the street" interpretation.

And yes, I know we don't live in the USA, but the US constitution (which was written LONG before ours) was largely written to protect the citizens from the possibility of a government running rampant ... not to give government carte-blanche to stomp all over its citizens, which is what they always end up doing if something doesn't prevent them from doing so. Whether this approach has actually been successful or not, is of course open to question, because the US certainly has its share of overbearing laws running rampant, too.

[OpenGambit]

If we have a 'real' street racer, then he can and should be charged under The Criminal Code. The soccer mom's act likely doesn't rise to such a level, that it warrants up-front penalties.

To me the term 'unreasonable' equates to 'unconstitutional', as there is a set measure under law for what qualifies as such.

Yeah he should be charged under the criminal code, but I also see nothing unreasonable with impounding his car and suspending his licence in the meantime based on the seriousness of the offence. for all the reasons previously stated.

I don't disagree that the soccer mom idea makes the penalty unreasonable.

I do disagree that unreasonable and unconstitutional means the same thing in all cases.
Because our charter allows "reasonable" infringements on our Charter rights. the only time when unreasonable and unconstitutional means the same thing is when you have an infringement on another section of the Charter.

Unfortunately licence suspension and impoundment does not engage a charter right (there is no right to drive). going to jail does (sec 7) so thats why the jail time part is unconstitutional.

Here , as in the US, the govt can enact any unreasonable law it wants as long as it doesn't infringe our charter rights. Neither our charter, or the US consitution imposes any obligation on the govt to be "reasonable". Note that cruel and unusal is also a very high threshold.

My fav quote from any case is

"The applicant argues that the payment of taxes is cruel, whatever merit there may be to that argument, it is certainly not unusual"

[OpenGambit]

I think a lot of the problem is that the "man in the street" interpretation of what should be "unconstitutional", is very different from the "lawyer" interpretation.

The legal system is obviously using the "lawyer" interpretation, but I have a funny feeling that those who wrote the constitution were probably envisioning something much closer to the "man in the street" interpretation.

And yes, I know we don't live in the USA, but the US constitution (which was written LONG before ours) was largely written to protect the citizens from the possibility of a government running rampant ... not to give government carte-blanche to stomp all over its citizens, which is what they always end up doing if something doesn't prevent them from doing so. Whether this approach has actually been successful or not, is of course open to question, because the US certainly has its share of overbearing laws running rampant, too.

I disagree with this wholeheartedly. Due to the relatively recent drafting of our constitution, the original drafters are still around. Many legislators are lawyers and they definately consulted with lawyers while drafting it.

Also, there has been a lot written about how the judiciary have actually extended far MORE rights to the public than the drafters intended to give. ( and we can verify that because teh drafters themselves have admitted to this) Now its been a while since I looked into this (back in law school) but there shoudl be literature about how section 7 of the charter was meant to refer to "procedural" rights. Judicial interpretation has widened the scope of section 7 immensely to give a lot of substantive rights.

With respect to the US constitution. they tend to look at the meaning as "what did the founders mean at their time" and apply that to the current world. the Canadian approach is that the constitution is a living tree and its interpetation can change with the times.

[Rob MacLennan]

Yeah he should be charged under the criminal code, but I also see nothing unreasonable with impounding his car and suspending his licence in the meantime based on the seriousness of the offence. for all the reasons previously stated.

I don't disagree that the soccer mom idea makes the penalty unreasonable.

I do disagree that unreasonable and unconstitutional means the same thing in all cases.
Because our charter allows "reasonable" infringements on our Charter rights. the only time when unreasonable and unconstitutional means the same thing is when you have an infringement on another section of the Charter.

Unfortunately licence suspension and impoundment does not engage a charter right (there is no right to drive). going to jail does (sec 7) so thats why the jail time part is unconstitutional.

Here , as in the US, the govt can enact any unreasonable law it wants as long as it doesn't infringe our charter rights. Neither our charter, or the US consitution imposes any obligation on the govt to be "reasonable".

Yes, obviously the administrative action of a license suspension doesn't carry the same requirements of legal sanction. As it is a function of government, I believe that it should. It's not a matter of 'rights', but rather one of contract. It must be demonstrated that the contract has been placed in abeyance, through the actions of the license holder. I realize that this is not the way the law works. It should be, following the dictates of tort law.

So, under law, suspension of the person's license is considered outside Charter purview. The seizure of personal property, however, would seem to be, to me. If there is the opportunity for another licensed driver to take possession of the vehicle and drive it off-site, then it should be permitted. The license may be the property of The State. The vehicle is not.

I'm afraid your use of the term 'reasonable infringements' makes my point

I disagree that that the government has an obligation to be reasonable. They have such a duty, to the citizenry. Unfortunately we have come to a point where voters no longer care to hold them responsible, for their unreasonable actions, and courts have become somewhat more lax in their duty of reigning in such abuses.

[OpenGambit]

Yes, obviously the administrative action of a license suspension doesn't carry the same requirements of legal sanction. As it is a function of government, I believe that it should. It's not a matter of 'rights', but rather one of contract. It must be demonstrated that the contract has been placed in abeyance, through the actions of the license holder. I realize that this is not the way the law works. It should be, following the dictates of tort law.

So, under law, suspension of the person's license is considered outside Charter purview. The seizure of personal property, however, would seem to be, to me. If there is the opportunity for another licensed driver to take possession of the vehicle and drive it off-site, then it should be permitted. The license may be the property of The State. The vehicle is not.

I'm afraid your use of the term 'reasonable infringements' makes my point

I disagree that that the government has an obligation to be reasonable. They have such a duty, to the citizenry. Unfortunately we have come to a point where voters no longer care to hold them responsible, for their unreasonable actions, and courts have become somewhat more lax in their duty of reigning in such abuses.

The government has no "legal" obligation to be reasonable. I think they have a moral one, and certainly we can throw them out on their ***** as voters...
Unfortunately the courts have no constitutional mandate to make the govt do "reasonable" things. The judiciary can only make the govt be "reasonable" in the cases of Charter infringments.

So that means the govt can. do anything it wants, legally, unless it wants to infringe on a charter right in which cause it must do so "reasonably".

So yes, with regards to the licence suspension. there is NO possibilty of charter review. I don't think driver's licences are contracts, i think they are "licences", which the state should not be able to withhold "arbitarily" but it doesn't necessarily have to be reasonable.

Now the seizure of the vehicle I think has more traction under section 8. In which case, i think the reasonablness of it is based on the particular offender, thats why I think a "may" instead of a "shall" is more appropiate for the purpose of impoundment under 172.

[turbodish]

Just to point out.

The constitutional problem with HTA 172 lies within the combination of Jail time, and absolute liabiilty (lack of a due diligence defense).

While that would make the entire law constitutional as written, there is nothing unconstitutional about the impound aspect, which is the part people actually complain about here.

According to a Court of Appeal ruling in support of HTA172, there is the possibility of a due diligence defence, and as such there is no constitutional problem with that law as far as possible jail time is concerned. http://canlii.org/en/on/onca/doc/201...010onca206.pdf

[OpenGambit]

According to a Court of Appeal ruling in support of HTA172, there is the possibility of a due diligence defence, and as such there is no constitutional problem with that law as far as possible jail time is concerned. http://canlii.org/en/on/onca/doc/201...010onca206.pdf

Yes I am aware of that case and that they read that in afterwards. My post was meant to be a clarification of the linked articles of why the law was initially found unconstitutional.

[turbodish]

On the basis that it levies a penalty prior to trial, which can't be demonstrated to have the same sort of undeniable benefit to the public that stopping a presumed impaired driver does. That is the measure that so many HTA 172 supporters point to, as showing it to be a reasonable penalty.

The HTA172 administrative penalties imposed prior to trial is are specifically defined in legislation as being intended to serve as a benefit to the public by serving as a deterrent to specific kinds of extreme stupid beyond ordinary driving stupid. There will never be any such thing as a universally effective deterrent, but this one has had a significant effect on slowing things down on the highways.

Intent of suspension and impoundment(1 The suspension of a driver’s licence and the impoundment of a motor vehicle under this section are intended to promote compliance with this Act and to thereby safeguard the public and do not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time. 2007, c. 13, s. 21.

[turbodish]

If we have a 'real' street racer, then he can and should be charged under The Criminal Code. The soccer mom's act likely doesn't rise to such a level, that it warrants up-front penalties.

To me the term 'unreasonable' equates to 'unconstitutional', as there is a set measure under law for what qualifies as such.

Street racers have been charged under the criminal code in past, but unless they have actually managed to hurt or come close to hurting someone, prospects of conviction are virtually nil. The street racers knew it, and between that and the difficulty of actually proving "racing" as it was defined at the time, there was very little available to deter street racers.

[Rob MacLennan]

Street racers have been charged under the criminal code in past, but unless they have actually managed to hurt or come close to hurting someone, prospects of conviction are virtually nil. The street racers knew it, and between that and the difficulty of actually proving "racing" as it was defined at the time, there was very little available to deter street racers.

There is a rather large difference between it being difficult to obtain a conviction, and a conviction not being likely. Many such cases are plead down, in order to obtain an easy conviction, simply because of the amount of work required to obtain a conviction.

As I said up=thread, the law shouldn't be easy.

[turbodish]

There is a rather large difference between it being difficult to obtain a conviction, and a conviction not being likely. Many such cases are plead down, in order to obtain an easy conviction, simply because of the amount of work required to obtain a conviction.

As I said up=thread, the law shouldn't be easy.

The law also shouldn't be impotent, as it was in past when it came to extreme driving offences. That has changed, as evidenced by the amount of bleating and whining from those who counted on the law being impotent in past.

[Rob MacLennan]

The law also shouldn't be impotent, as it was in past when it came to extreme driving offences. That has changed, as evidenced by the amount of bleating and whining from those who counted on the law being impotent in past.

The law was never 'impotent.' Self-serving people simply want us to believe that it was so, in order to serve their own ends. That 'bleating' that you remark upon is simply some few people waking up to that fact.