How Can a Person Be Charged For Racing If No Other Car Was Around?
The Offence Known As Stunt Driving May Involve Doing Tricks Such as Burnouts, Donuts, Among Others. A Stunt Driving Offence Also Includes Actual Racing Against Other Vehicles or Driving Excessively Beyond the Speed Limit.
Understanding Stunt Driving, Racing, or Excessive Speeding Charges Including the Immediate and Potential Penalties
The charge commonly known as stunt driving or racing, which includes driving at excessive speeds, puts a driver at risk of severe penalties. As detailed further below, A driver charged will become subjected to a roadside fourteen (14) day vehicle impoundment as well as a roadside issued thirty (30) day license suspension. Subsequently, if convicted, the driver faces penalties involving a fine between $2,000 and $10,000 in addition to the potential of six months in jail as well as license suspension ranging between one (1) year and three (3) years upon a first time conviction, between three (3) years and ten (10) years upon a second time conviction, and indefinitely for drivers convicted three or more times.
Additionally, whereas such a charge falls within the serious category of offences as used for underwriting purposes by insurance companies, upon a conviction insurance pricing may be, and likely will be, significantly increased especially where access to the regular marketplace becomes lost and the obtaining of insurance coverage must be made through an alternate high risk insurer or the Facility Association.
Racing, stunts, etc., prohibited
172 (1) No person shall drive a motor vehicle on a highway in a race or contest, on a bet or wager or while performing a stunt.
(2) Every person who contravenes subsection (1) is guilty of an offence and on conviction is liable to a fine of not less than $2,000 and not more than $10,000 or to imprisonment for a term of not more than six months, or to both, and in addition, the court shall make an order suspending the person’s driver’s licence,
(a) on a first conviction under this section, for not less than one year and not more than three years;
(b) on a second conviction under this section, for not less than three years and not more than 10 years; or
(c) on a third or subsequent conviction under this section, indefinitely.
(3) An indefinite suspension imposed under clause (2) (c) that was not in relation to a fourth or subsequent conviction under this section may be reduced by the Registrar in the prescribed circumstances.
Determining subsequent conviction
(4) In determining whether a conviction is a subsequent conviction for the purposes of subsection (2), the only question to be considered is the sequence of convictions and no consideration shall be given to the sequence of commission of offences or whether any offence occurred before or after any conviction.
(6) Despite subsection (5), when the subsequent conviction is within 10 years after the previous conviction, all previous convictions that were not followed by a 10-year period without a conviction shall be taken into account for the purpose of subsection (2).
(7) A conviction that was more than 10 years before the date on which subsection 15 (4) of Schedule 1 to the Moving Ontarians More Safely Act, 2021 comes into force shall not be taken into account for the purpose of subsection (2).
Police to require surrender of licence, detention of vehicle
(a) request that the person surrender their driver’s licence; and
(b) detain the motor vehicle that was being driven by the person until it is impounded under clause (10) (b).
Administrative 30-day licence suspension
(9) Upon a request being made under clause (8) (a), the person to whom the request is made shall forthwith surrender their driver’s licence to the police officer and, whether or not the person is unable or fails to surrender the licence to the police officer, the driver’s licence is suspended for a period of 30 days from the day the request is made.
Administrative 14-day vehicle impoundment
(10) Upon a motor vehicle being detained under clause (8) (b), the motor vehicle shall, at the cost of and risk to its owner,
(a) be removed to an impound facility as directed by a police officer; and
(b) be impounded for 14 days from the day it was detained under clause (8) (b).
Release of vehicle
Early release of vehicle
(12) Despite the detention or impoundment of a motor vehicle under this section, a police officer may release the motor vehicle to its owner before it is impounded under subsection (10) or, subject to subsection (13), may direct the operator of the impound facility where the motor vehicle is impounded to release the motor vehicle to its owner before the expiry of the 14 days if the officer is satisfied that the motor vehicle was stolen at the time that it was driven on a highway in contravention of subsection (1).
Costs to be paid before release of vehicle
(13) The person who operates the impound facility where a motor vehicle is impounded under subsection (10) is not required to release the motor vehicle until the removal and impound costs for the vehicle have been paid.
Lien for storage costs
(14) The costs incurred by the person who operates the impound facility where a motor vehicle is impounded under this section are a lien on the motor vehicle that may be enforced under the Repair and Storage Liens Act.
Duty of officer re licence suspension
(15) Every police officer who asks for the surrender of a person’s driver’s licence under this section shall keep a record of the licence received with the name and address of the person and the date and time of the suspension and shall, as soon as practicable after receiving the licence, provide the person with a notice of suspension showing the time from which the suspension takes effect and the period of time for which the licence is suspended.
Duty of officer re impoundment
(16) Every police officer who detains a motor vehicle under this section shall prepare a notice identifying the motor vehicle that is to be impounded under subsection (10), the name and address of the driver and the date and time of the impoundment and shall, as soon as practicable after the impoundment of the motor vehicle, provide the driver with a copy of the notice showing the time from which the impoundment takes effect, the period of time for which the motor vehicle is impounded and the place where the vehicle may be recovered.
(17) A police officer shall provide a copy of the notice prepared under subsection (16) to the owner of the motor vehicle by delivering it personally or by mail to the address of the owner shown on the permit for the motor vehicle or to the latest address for the owner appearing on the records of the Ministry.
No appeal or hearing
(18) There is no appeal from, or right to be heard before, a vehicle detention, driver’s licence suspension or vehicle impoundment under subsection (8), (9) or (10), but this subsection does not affect the taking of any proceeding in court.
Owner may recover losses from driver
(19) The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the vehicle was detained under clause (8) (b) to recover any costs or other losses incurred by the owner in connection with the impoundment.
(20) Every person who obstructs or interferes with a police officer in the performance of the officer’s duties under this section is guilty of an offence and on conviction is liable to a fine of not less than $200 and not more than $5,000 or to imprisonment for a term of not more than six months, or to both.
Intent of suspension and impoundment
(21) 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.
Impoundment concurrent with other administrative impoundments
(23) The Lieutenant Governor in Council may make regulations,
(a) requiring police officers to keep records with respect to licence suspensions and vehicle impoundments under this section for a specified period of time and to report specified information with respect to licence suspensions and vehicle impoundments to the Registrar and governing such records and reports;
(b) exempting any class of persons or class or type of vehicles from any provision or requirement of this section or of any regulation made under this section, prescribing conditions for any such exemptions and prescribing different requirements for different classes of persons or different classes or types of vehicles;
(c) defining the terms “race”, “contest” and “stunt” for the purposes of this section;
(d) prescribing the circumstances in which an indefinite suspension imposed by court order under clause (2) (c) may be reduced by the Registrar, and the conditions or requirements before reinstatement of the driver’s licence.
(24) In this section,
“driver’s licence” includes a driver’s licence issued by another jurisdiction.
“motor vehicle” includes a street car, a motorized snow vehicle, a farm tractor, a self-propelled implement of husbandry and a road-building machine.
Furthermore, while the Highway Traffic Act may prescribes that an offence occurs when stunt driving or racing or excessive speed, among other things, occurs, it is the Regulation to the Highway Traffic Act that defines what conduct will constitute as stunt driving or racing or excessive speed, among other things. The Regulation, being O. Reg. 455/07, provides a broad range of defined conduct including what constitutes as a "race" or "contest" as well as a "stunt" whereas it is stated:
Definition, “race” and “contest”
1. Driving two or more motor vehicles at a rate of speed that is a marked departure from the lawful rate of speed and in a manner that indicates the drivers of the motor vehicles are engaged in a competition.
2. Driving a motor vehicle in a manner that indicates an intention to chase another motor vehicle.
3. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,
i. driving a motor vehicle at a rate of speed that is a marked departure from the lawful rate of speed,
ii. outdistancing or attempting to outdistance one or more other motor vehicles while driving at a rate of speed that is a marked departure from the lawful rate of speed, or
iii. repeatedly changing lanes in close proximity to other vehicles so as to advance through the ordinary flow of traffic while driving at a rate of speed that is a marked departure from the lawful rate of speed.
(2) In this section,
“marked departure from the lawful rate of speed” means a rate of speed that may limit the ability of a driver of a motor vehicle to prudently adjust to changing circumstances on the highway.
1. Driving a motor vehicle in a manner that indicates an intention to lift some or all of its tires from the surface of the highway, including driving a motorcycle with only one wheel in contact with the ground, but not including the use of lift axles on commercial motor vehicles.
2. Driving a motor vehicle in a manner that indicates an intention to cause some or all of its tires to lose traction with the surface of the highway while turning.
3. Driving a motor vehicle in a manner that indicates an intention to spin it or cause it to circle, without maintaining control over it.
4. Driving two or more motor vehicles side by side or in proximity to each other, where one of the motor vehicles occupies a lane of traffic or other portion of the highway intended for use by oncoming traffic for a period of time that is longer than is reasonably required to pass another motor vehicle.
5. Driving a motor vehicle with a person in the trunk of the motor vehicle.
6. Driving a motor vehicle while the driver is not sitting in the driver’s seat.
7. Driving a motor vehicle at a rate of speed that is 40 kilometres per hour or more over the speed limit, if the speed limit is less than 80 kilometres per hour.
7.0.1 Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit, if the speed limit is 80 kilometres per hour or more.
7.1 Driving a motor vehicle at a rate of speed that is 150 kilometres per hour or more.
8. Driving a motor vehicle without due care and attention, without reasonable consideration for other persons using the highway or in a manner that may endanger any person by,
i. driving a motor vehicle in a manner that indicates an intention to prevent another vehicle from passing,
ii. stopping or slowing down a motor vehicle in a manner that indicates the driver’s sole intention in stopping or slowing down is to interfere with the movement of another vehicle by cutting off its passage on the highway or to cause another vehicle to stop or slow down in circumstances where the other vehicle would not ordinarily do so,
iii. driving a motor vehicle in a manner that indicates an intention to drive, without justification, as close as possible to another vehicle, pedestrian or fixed object on or near the highway, or
iv. making a left turn where,
(A) the driver is stopped at an intersection controlled by a traffic control signal system in response to a circular red indication;
(B) at least one vehicle facing the opposite direction is similarly stopped in response to a circular red indication; and
(C) the driver executes the left turn immediately before or after the system shows only a circular green indication in both directions and in a manner that indicates an intention to complete or attempt to complete the left turn before the vehicle facing the opposite direction is able to proceed straight through the intersection in response to the circular green indication facing that vehicle.
Excessive Speeding Definition
As shown above within section 3 of the Regulation, a "stunt" includes excessive speeding and involves driving at more than fifty (50) kilometres over the speed limit where the speed limit is more than eighty (80) kilometres per hour or driving at more than forty (40) kilometres over the speed limit where the speed limit is eighty (80) kilometres per hour or less. Additionally, a "stunt" by excessive speed occurs by driving at one hundred fifty (150) kilometres per hour regardless of the applicable speed limit.
Extensive Stunting Definition
Furthermore, also per section 3 of the Regulation, a "stunt" is broadly defined an includes driving conduct such as, among other things, driving with an intention to lift tires from the ground including driving a car on two wheels or a motorcycle doing wheelies, driving without sitting in the driver's seat, driving with a person riding in the trunk of the car, driving with an intent to block another driver from passing, or driving with an intent to stop or slow another vehicle including what is commonly referred to as a brake check.
The common law as to defending against a "stunt" charge, meaning the stunt of excessive speeding, was originally viewed as being an absolute liability offence; meaning that only the conduct of such excess rate of speed needed proving in Court; however, in 2010, this perspective of the stunt-by-speed charge was reviewed by the Court of Appeal in R. v. Raham, 2010 ONCA 206 and it was decided that the offence is one of strict liability where an accused person does have the right to put forth a due diligence defence as a means to defeat the charge. Of course, this is without saying that the only defence strategy is a due diligence defence; in fact quite the contrary, defending against the charge may involve tactics intended to impair the ability of the Prosecutor in the effort to prove beyond a reasonable doubt that the offence occurred; however, the due diligence defence relates to the availability of an available defence even if the conduct of stunt-by-speed is proven.
In the Raham case, the concern was that as a conviction under section 172 of the Highway Traffic Act carried the potential for imprisonment as a punishment, holding the charge as an absolute liability offence would be unconstitutional contrary to section 7 of the Charter of Rights and Freedoms whereas there may be circumstances that arise that require driving at an excessive speed beyond the speed limit and therefore the offence should be a strict liability offence. Specifically, the Court of Appeal said:
 I do not think that it can be said that driving over the speed limit, regardless of how much over the speed limit, will necessarily preclude a finding that an individual took all reasonable steps to avoid driving at 50 kph or more over the reasonable limit. For example, a driver, acting reasonably, may be proceeding somewhat over the speed limit in the passing lane of a multi-lane highway. That driver may find that he has no reasonable choice but to accelerate in order to avoid being hit by a vehicle that is approaching from behind. If that driver were to go more than 50 kph over the speed limit for the two or three seconds needed to get around traffic so that he could pull out of the passing lane and out of the way of the oncoming vehicle, I think a trier of fact could conclude that the driver was exercising all reasonable care to avoid driving at 50 kph or more over the speed limit. Similarly, a driver who testified that he or she relied on a speedometer, which indicated a rate of speed well below 50 kph over the speed limit, might succeed on a due diligence defence if there was evidence that the speedometer, unknown to the driver, was malfunctioning.
 In outlining the above scenarios, I do not suggest that the due diligence defence is limited to those or similar scenarios. I also do not imply that the due diligence defence will be readily [page257] available to this charge. As MacPherson J.A. observed in Kanda, at para. 31, the use of strict liability is "a serious commitment to the enforcement of the law". I would add that even where a due diligence defence is available to a charge of stunt driving contrary to s. 3, para. 7 of the Regulation, a conviction for speeding will often be imposed. Section 55 of the Provincial Offences Act, R.S.O. 1990, c. P.33 would permit, in most situations, a conviction on the lesser but included offence of speeding contrary to s. 128 of the Highway Traffic Act: see R. v. Benson,  O.J. No. 4956, 2009 ONCJ 566 (CanLII), at paras. 29-34.
 In summary, I would interpret the offence of stunt driving by speeding as defined in s. 3, para 7 of the Regulation as creating a strict liability offence. It is true that the prohibited conduct is identical to the conduct prohibited by the offence of speeding created by s. 128. I see nothing illogical in treating one as a strict liability offence and the other as an absolute liability offence. The stunt driving provision provides for the potential of incarceration, the speeding provision does not. This distinction is constitutionally significant. The legislature cannot, absent reliance on s. 1 of the Charter, imprison without fault. Strict liability sets the lowest standard of fault available. The legislature has chosen, through s. 172, to up the penal stakes for speeding at 50 kph or more over the speed limit by including the risk of incarceration. In doing so, the legislature must be taken, in the absence of clear language excluding the defence, to have accepted the availability of the due diligence defence. Neither the language of s. 172 nor that of s. 3, para. 7 of the Regulation has that effect.
It is the "stunt" definition of, "Driving a motor vehicle at a rate of speed that is 50 kilometres per hour or more over the speed limit" (or forty (40) kilometres over if in an eight (80) kilometre per hour or less zone), that commonly brings about some confusion whereas a common misperception is that a "stunt" charge must imvolve conduct that involves more than driving at excessive speed; however, in law, "stunt" driving can, and often does, relate merely to excess speed; and accordingly, an attempt to perform some grandiose feat as a common dictionary definition of stunt is unnecessary in proving "stunt" driving contrary to the Hightway Traffic Act.
Furthermore, in addition to tactics focused on impairing the prosecution from proving that a driver was driving at excessive speed over the speed limit, a defence against a charge of stunt-by-speed may also be successfully defended by proving that doing so occurred as a necessity involving due diligence of the driver.