Questions about the constitutionality of the amended Highway Traffic Act* broke out last year when a judge of the Ontario Superior Court ruled the “stunt driving” provision unconstitutional. It appears that the legal controversy over this provision has finally been resolved: it’s constitutional, for now.

The provision under contest is reproduced below:

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.

The regulation defines “stunt” as “driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit.”

Accordingly, drivers who exceed the speed limit by 50 km/h or more are subjected to fine or imprisonment or both, while drivers who exceed the speed limit by 49 km/h or less are subjected to a fine and the suspension of their driver’s licence.

The Court of Appeal upheld the provision addressed in its decision R. v. Raham,^ released earlier this month. Because of the potential punishment of imprisonment under the provision, its constitutionality depends on whether the defence of due diligence is available to the accused. If not, the provision would be unconstitutional because it violates the principles of fundamental justice as the legislature cannot imprison without fault.

Although the offence of speeding has been long established by the courts as one of absolute liability, meaning the intent to harm (mens reas) is not required, in the present case the Court of Appeal, having considered the potential punishment of imprisonment, declared that the defence of due diligence is available under the provision. Therefore, the law is constitutional.

*R.S.O. 1990 c. H8, s. 172

^[2010] ONCA 206

Note: Please keep in mind that this article is provided for information and educational purposes. It does not constitute legal advice and should not be regarded as such. The law may have changed since the publication of the article.