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| Nathan Baker |
It is important to remember that orange speed signs at construction zones hold power while yellow speed signs, such as those attached to turn signs, do not impose the same duty to slow down. In Ontario, speeding is punished at $3 per kilometre up to 20 over then $4.50 per kilometre from 20 to 34 over, $7 per kilometre from 35 to 49 over and $9.75 every kilometre from there on. Speeding by 15 kilometres per hour or less over the limit does not carry any demerit points. From 16 to 29 kilometres over there are three points, from 30 to 49 kilometres per hour is four points and 50 kilometres per hour or more leads to six points. A licence suspension may occur in Ontario based on accumulated points or based solely on the speed being 50 kilometres per hour or more over the limit.
Speeding is an absolute liability offence. There is no mental component to the offence. A person does not need to have intent to speed. The act of exceeding the speed limit alone is enough. This means that accidentally speeding or not knowing the speed limit is not a defence.
Given the tiered nature of penalties relating to speeding, there is often benefit to obtaining a plea to a reduced speed which saves on fines and demerit points. As well, greater speeds tend to have a greater impact on insurance costs.
There are some defences available in speeding cases. Necessity can be a defence. It requires imminent peril, no legal alternative and proportionality. Necessity has been found when a speed limit changes and a car following too closely behind prevents slowing in time. However, in cases where the risk is foreseeable like when speeding up to pass, the defence will not be made out. Necessity is a difficult argument to make. In Mississauga (City) v. Vezina [2019] O.J. No. 2082, the defendant had an urgent need to urinate due to a medical reason. The court rejected this as being necessary.
The burden remains on the prosecution to prove the offence. This will require them to prove what the speed limit was at the location and how fast the vehicle was travelling. Police can rely on devices like radar or lidar. They can determine speed by keeping pace with the vehicle while following it.
They can use known measurements and the time it took to travel that distance, usually done with aircraft speed enforcement. A court cannot take judicial notice of the speed limit.
Evidence will need to be called but can usually be obtained from the officer who wrote the ticket or a copy of the bylaw or provincial regulation which set the limit. Police need not show the speed reading to the person they are charging. Increased fines in construction or school zones will be appropriate even if no work is being done or no children are present.
Obtaining disclosure is an important first step in determining if there is a defensible case. In York (Regional Municipality) v. McGuigan 2018 ONCA 1062, the Ontario Court of Appeal reinstated a disclosure order requiring provision of the manual for the radar device used to measure speed. Understanding the device and how it functions is important if a person is to be able to challenge the evidence it provides. They are highly reliable devices but not infallible.
Disclosure in speeding cases may be as short as a copy of the ticket, perhaps a page of officer notes and a link to a website where the manual is available but even this small amount of information is nonetheless important.
Time and delay matters as well. Because speeding charges are often less serious than other cases a court may be dealing with, a trial may be set on an already overbooked date.
Timeframes for trial within a reasonable time for provincial offences matters apply to charges like speeding. Generally, the state has 18 months to get a matter to trial according to the Supreme Court’s ruling in R. v. Jordan [2016] 1 S.C.R. 631. While a trial will usually be within this timeframe, it is nonetheless important to recognize this right when approaching such a case.
If witnesses are not available the prosecution must follow the proper rules in order to obtain an adjournment. In R. v. Fahmy [2019] O.J. No. 3448 the prosecution request for adjournment was denied because they did not comply with the rules, including bringing the motion in writing or notifying the defence ahead of time.
Nathan Baker is a criminal defence lawyer in Peterborough, Ont., and is a sole practitioner at Nathan Baker Law. He 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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