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Advanced Comparative Constitutional Law

Doug Daley lives in Milton, Ontario.  He is 27 years old and is employed as an assistant chef in a restaurant in downtown Toronto. Doug’s driving record is not the best: he almost lost his driver’s licence three years ago due to several prior convictions under the Highway Traffic Act. These days Doug is more careful as he needs his driver’s licence in order to commute to work and meet up with his friends.

On the evening of November 3, 2018, Doug is working at the restaurant and it is a very busy evening.  The restaurant is packed with diners and the kitchen is backed up with orders.  During a particularly busy moment, one of the other chefs accidentally drops a plastic jug of olive oil on the floor and Doug’s right shoe is coated in oil.  Doug is annoyed, but there is not much that he can do.  He does not have a change of shoes in his locker, and it is much too busy for him to properly wipe off his shoe.  Luckily, it is near the end of his shift, so Doug figures he will be able to clean it up when he gets home.  At 9 p.m., Doug gets into his truck and heads home on the QEW.

Within minutes of getting onto the highway, Doug hears sirens blaring.  He then sees flashing lights and spots an ambulance further ahead.  Traffic around Doug slows down.  As he gets closer to it, Doug realizes that the ambulance is stopped in the same lane that Doug is in – which is the rightmost lane on the highway.  As Doug lifts his right foot to step on the brake pedal, his foot gets stuck under the pedal, causing his vehicle to ultimately crash into the parked ambulance.  

Although the crash stuns Doug, it could have been worse.  Since Doug had taken his foot off of the accelerator pedal, the accident is not as bad as it could have been.  After a few seconds, Doug sees that even though there is damage to the front end of his vehicle, the damage to the back of the ambulance is minor.  Without thinking, and feeling quite panicked, Doug starts to drive away.  He hears the ambulance driver shouting at him as he starts to accelerate away from the crash.  After driving for about two kilometers, Doug sees flashing lights again – but this time, they belong to a Toronto Police Service cruiser car.  Doug signals and pulls over onto the shoulder.  He is subsequently charged with two offences:

  • Section 159(2) of the Highway Traffic Actfor failing to slow down on approaching a stopped emergency vehicle; and
  • Section 200(1) of the Highway Traffic Actfor failing to remain at the scene of an accident.

When Doug comes to see you for legal advice, he tells you that he was previously convicted of an offence under section 159(1) for failing to pull over to the curb when a police car with lights and sirens was approaching.  He was convicted of this offence on August 1, 2014.  Doug further advises you that no one was injured as a result of the accident on November 3rd.  Apparently, the ambulance had been responding to a 911 call of a passenger who was feeling ill.

Answer the following questions

1. Referring to the offence under section 159(2) of the Highway Traffic Act, what type of offence has Doug been charged with (mens rea, absolute liability, or strict liability)?
 
2.a) Which part of the Provincial Offences Actwill Doug be prosecuted under?  Give ONE reason for your answer.
b) What is the limitation period for these offences?  Give a statutory authority for your answer.
 
3. You request disclosure from the Crown and receive it.  When you review the disclosure for both charges, you notice that the charging document is missing the date of the offence.  Identify what remedy you will seek from the court and whenwill you bring this before the court?  Do you believe that your client will be successful in obtaining this remedy?  Explain your answer with reference to any specific test or criteria set out.
 
4. Assume that Doug wishes to have a trial on the charge under section 159(2) of the Highway Traffic Act.  He tells you that he intended to step on the brake pedal, and he tried to do so, except his right shoe was sticky and got jammed under the brake pedal.  He tells you that this has never happened to him before.  He also had his brakes tested after the accident, and there is nothing wrong with his brakes.  Identify the best defence that you can raise in this scenario.  Explain the criteria for this defence and the argument you would present in court.
 
5. a) If Doug is convicted of the offence under section 159(2) of the Highway Traffic Actafter trial, what are the penalties, costs, and surcharges?  Think about everything which applies if a person is convicted of this offence.
 
b) If Doug is convicted of the offence under section 200(1) of the Highway Traffic Actafter trial, what are the penalties, costs, and surcharges?  Think about everything which applies if a person is convicted of this offence.
 
c) If Doug seeks your advice on which charge he should plead guilty to in exchange for the Crown to withdraw the other charge, what advice do you give him?  Explain the reason(s) behind your answer.

Sample Answer

1. It has been stated under Section 159(2) of the Highway Traffic Act that the vehicle has to be slow down when there is an emergency vehicle has been passing through and the lights of a vehicle has been activated. If there has been more than one lane on the highway the driver is required to move over and leave one lane between the emergency vehicle and the parked vehicle. To be convicted under Men’s Rea there must been a deliberate act means there must be a intent or have a guilty mind. Since in this case study Dough does not have intent to damage the vehicle and therefore he cannot be convicted under Men’s Rea. Doug had also been not held under the absolute liability because in absolute liability also there had been required that there must been a deliberate action with the criminal action and the as Doug does not have done deliberately, so the act does not comes under the absolute liability. Doug has been charged with strict liability because Dough has no intention but he has a liability because he was in the same lane as the ambulance with activated lights. The intention and Mens Rea does not matter in strict liability. Strict liability does not depend on the actual negligence or the intent to harm. It just basically depends on the event has occurred and therefore he had been held liable for the act under the absolute liability. There was more than one lane in the highway and then he took in the lane although it was done negligently but it has been done therefore he had been held liable for the tort he has done under the strict liability (Bekiaris-Liberis, Roncoli, & Papageorgiou, 2016).  
 
2.a. Doug has been charged for Section 159(1) and 200 (1) of the Highway Traffic Act and he will be prosecuted under the Provincial Offences Act. The Doug will be prosecuted under Part X of the Provincial Offences Act. The reason behind the prosecution is Doug has to follow the rules of the road and have to slow down the vehicle after seeing, the ambulance whose flash lights are on and also does not changed the lane when he has seen the ambulance that has took place (Roncoli, Bekiaris-Liberis & Papageorgiou, 2015).
b. The offence that has been dealt by the Highway Traffic Act has some limitations and after the limitation had been passed, a party cannot file a suit against the other party. The Highway Traffic Act has been dealt by the Provincial offence Act and the limitation that has been provided under the offences of Highway Traffic Act is one year. The limitation is one year unless there is a valid reason given by the party for not filing a suit. For example if an offence has been committed on 3rd November 2016 and the charges had been made where there is not and there is limitation of time in the case. Therefore, it is necessary to have a date of offence in the charge sheet or it can create a right for remedies for the parties. (Morris, 2016).

3. The date of offence is an important part of the charge sheet and without a date of offence charges framed are not been valid under the law. The date of offence also states that whether the case is being in the limitation period. Therefore, the remedy the accused demand from the Court is dismissal of case because the charge sheet will not been valid without a date of offence and Doug can ask for dismissal of case. The accused can bring this to the Court on the first date of hearing of the case. The Court when first brings to the Court the accused can demand for the dismissal of the case on the grounds that there is no date of offence in the charge sheet (Bekiaris-Liberis, Roncoli, & Papageorgiou, 2016).
 
4. The best defences that can save Doug from being convicted under section 159(2) of the Highway Traffic Act that has been followed. Doug can take the defence of inevitable accident as the driving was not rash and negligent. There are certain other defences, which Doug can take in this case study that are:
Doug shoes were sticky and therefore he can take the defence that the event was outside his control
He can take the defence that event was not been avoided by taking reasonable care and in the reasonable time as there has been no problem with the brakes
He has tried to avoid the said event by reasonable care as he tried to put the brakes to stop but as shoes were sticky, he failed to do so.
Nothing has happened with Doug like this and therefore he was unaware of the incident that has taken place (Morris, 2016).
5.a. Dough if found guilty of the offence under section 159(2) can be liable for penalties and imprisonment depending upon the seriousness of the crime.  The law carries a minimum fine of $400 that can be upto $2000 fine. Moreover, there are some also demerits points if the conviction takes place that if subsequent offence takes place in five years than the penalty will be carries of $1000 to $4000. (Perreault, 2016).
Doug can be imprisonment for that is about six months and the license of Doug can be suspended for two years.  Doug driving record was not good, his license was already lost his license due to his previous convictions, and in accordance with that it is the subsequent offence done by Doug than his liability will arise more than the normal breach of the laws (Liu, et, al., 2016).

Doug can be charged with six months of imprisonment and can be fined with $1000 to $4000 because it is a subsequent offence that has been done by Doug and he cannot take the excuse of the law that has been misused in this case.

b. Doug if had been found convicted under section 200(1) of the Highway Traffic Act than he is liable for the penalties and it is been considered a serious crime under the law. In this case study Doug has damaged the ambulance but it was not the major damage under the law. However, he has run away from the scene than he would be liable under the law (Roncoli, Bekiaris-Liberis & Papageorgiou, 2015).
As per the law the driver license as Doug can be suspended or been cancelled. It has been possible that the lifetime revocation been possible in the case of Doug because his driving past record was not much good and his license had already been suspended. It is the criminal offence under the law and Doug can be punished with fines and imprisonment (Cogan, 2018).

c. It will be advisable for Doug that he will be charged that he will be plead guilty under section 200(1) of the Highway Traffic Act. It is because the running away from the place of the offence is a serious crime. It is the criminal offence that he is liable for and as per the past experiences he is considered to be serious offender and therefore cannot been evade from the charge. He can possibly been safe from the offence under section 159(1) but it is very difficult for Doug to defend again section 200(1) of the Highway Traffic Act. There is no defence had been left with Doug under section 200(1) of the Highway Traffic Act (Lin, Chung & Chien, 2016).
References
Bekiaris-Liberis, N., Roncoli, C., & Papageorgiou, M. (2016). Highway traffic state estimation with mixed connected and conventional vehicles. IFAC-PapersOnLine, 49(3), 309-314.

Cogan, T. N. (2018). The Teleology of Provincial Offences (Doctoral dissertation, Université Saint-Paul/Saint Paul University).

Hapidou, E. G., Mollica, K. V., & Culig, K. M. (2016). Accessibility of chronic pain treat-ment for individuals injured in a mo-tor vehicle accident. Psychol Cogn Sci Open J, 2(1), 15-28.

Highway Traffic Act, R.S.O. 1990

Lin, C. L., Chung, C. H., Tsai, Y. H., & Chien, W. C. (2016). Association between sleep disorders and injury: a nationwide population-based retrospective cohort study. Injury prevention, injuryprev-2015.

Liu, J., Bartnik, B., Richards, S. H., & Khattak, A. J. (2016). Driver behavior at highway–rail grade crossings with passive traffic controls: A driving simulator study. Journal of Transportation Safety & Security, 8(sup1), 37-55.

Morris, B. (2016). The Law and Politics of Provincial Impaired Driving Legislation (Doctoral dissertation, University of Calgary).

Perreault, S. (2016). Impaired driving in Canada, 2015. Juristat: Canadian Centre for Justice Statistics, 1.

Provincial Offences Act, R.S.O. 1990

Roncoli, C., Bekiaris-Liberis, N., & Papageorgiou, M. (2015). Highway traffic state estimation using speed measurements: case studies on NGSIM data and highway A20 in the Netherlands. arXiv preprint arXiv:1509.06146.

 

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