R v Raham

R. v. Raham

[2009] ONCJ (Court File No. 2011-999-08-0190-99)
Ontario Court of Justice — Justice G.J. Griffin | Heard July 23, 2009, Judgment September 4, 2009

Background

Jane Raham, a 62-year-old grandmother, was driving home to Oakville from Kanata where her daughter had just given birth to twins. She chose Highway 7 over the 401 because she feared being in the blind spot of big trucks. When she found herself behind a tractor-trailer doing 90 km/h in an 80 zone, she pulled into the oncoming lane to pass. The truck seemed to speed up as she passed, and "out of a sort of fear reaction" she accelerated to get safely back into her lane.

OPP Officer Doolan, following in an unmarked car with radar, clocked her at 131 km/h — 51 km/h over the limit. Under Ontario's new stunt driving law, that meant an immediate roadside licence suspension, vehicle impoundment, and a charge under section 172(1) of the Highway Traffic Act. Raham was convicted and fined $1,000, but her lawyer argued the law was unconstitutional.

Issues

1. Is stunt driving by excessive speed (section 3(7) of Ontario Regulation 455/07) an absolute liability or strict liability offence?
2. If it's absolute liability, does allowing imprisonment for up to six months violate section 7 of the Charter?

The Constitutional Analysis

Justice Griffin applied the four-factor test from R. v. Sault Ste. Marie to classify the offence: overall regulatory pattern, subject matter, penalty, and precision of language. The court found these factors largely neutral, but focused on a crucial question — is the due diligence defence actually available?

The judge concluded it's "simply not realistic" for someone charged with going 50+ km/h over the limit to claim they didn't know they were speeding or that they took all reasonable care. At those speeds (at least 50% over any posted limit in Ontario), "the person would have to have some knowledge that they were speeding." Since no genuine due diligence defence exists, the offence must be classified as absolute liability — not strict liability as the Justice of the Peace had ruled.

Under the Supreme Court's decision in Reference re Motor Vehicle Act (B.C.), "absolute liability and imprisonment cannot be combined." Since section 172(2) allows up to six months in jail, the law violates section 7 of the Charter and cannot be saved under section 1.

Key Takeaway

Ontario's stunt driving law for excessive speed is unconstitutional because it allows jail time for an absolute liability offence.

This decision gives defendants a powerful Charter argument, though it only applies to the speed-based definition in section 3(7) of the regulation. The immediate roadside penalties and fines remain valid — only the possibility of imprisonment violates the Charter.