R. v. Bosworth 

---

Nils. B. Jensen
Counsel for the Crown

Michael J. Connaghan
Counsel for the Defence

REASONS FOR JUDGMENT

PART 1

Introduction

At the commencement of these proceedings it was my hope, that a full and open inquiry into the construction and application of the new "photo radar" legislation would transpire. Although this hope was not fully realized, enough issues were raised and legal argument put forward to warrant reserving judgment and preparing written reasons.

The enforcement and subsequent prosecution of this new legislation has little or no precedent of its own and relies heavily on breathalyzer case law. Legal concepts applicable to "approved devices", such as "rebuttable presumption of accuracy", "evidence to the contrary", "legislative intent", "air of reality", "leave of the court", etc. are found in this body of law. The Crown prosecutes by way of certificate evidence only; on the basis that the legislation eliminates the need for "viva voce" testimony. This may be tantamount to "trial by machine", but it has yet to be shown, that this type of enforcement is the harbinger of George Orwell's "Big Brother".

In addition to the rulings made during the course of the proceedings and the ultimate findings, I will comment on the issue of photographic evidence; specifically the application of rules of admissibility and weight, as they apply to "photo radar" matters.

The commentary on the prosecution of "photo radar" matters is based on observations from the bench concerning this process as perceived by unrepresented accused who comprise the vast majority of persons appearing before this court. It is hoped that the suggestions put forward will be received in the same spirit with which they are given. Judicial officers owe a duty to the people whom they serve to safeguard the integrity of this institution thus it is important that the issue of the "appearance of fairness" be broached and addressed.

In Roman Komars' Reasons for Judgment (A Handbook For Judges and Other Judicial Officers (1980) Butterworths, Toronto), he points out that the value of written reasons "can best be gauged by the functions that it performs with respect to the "audiences" who are being addressed -- perhaps better perceived as critical tribunals whom those reasons must convince." (page 8)

Those critical tribunals include:

"The Public and the Media: Citizens and public officials have a legitimate claim to be appraised of the issues before the courts that they may know how to act within the bounds of the law. Obviously, it would be unbecoming of a judge to discuss the matter with the public or the press at any time -- before, during or even after the trial. Denied the avenue of dialogue, the court has the monologue of its formal reasons for judgment as the only legitimate means of reaching the public to explain what is happening. These reasons constitute a public document against which the public can measure its confidence in the judiciary and in the administration of justice and by which it can be informed of the adequacy of the present state of the law to meet the current needs and expectations of the community." (page 10)
and
"The Legislature: Reasons for judgment can become the court's official organ for publicising the law's need for revision and the need for remedial legislation. The cry may be ignored by the law-makers, but the possibility of inertia is increased if the courts remain silent. If the law as it presently stands consistently produces "unjust" results, then a judge surely owes an obligation to the community, if not to his or her own conscience, to bring attention to it by the means of the one outlet within the bounds of judicial propriety." (page 11)

PART II

Background

Given the depth of misunderstanding of the legislation, the legal process, and the case law upon which these prosecutions are based; it is necessary to review some of these matters preliminary to the findings, and also touch upon a number of rulings which were made during these proceedings.

The Legislation

The following sections excerpted from British Columbia Statutes apply to photo radar enforcement, Motor Vehicle Act, 1996 Chapter 318, R.S.B.C.
[Deleted to save space, see:
Motor Vehicle Act, Section 83.1 Liability of Owner for Speeding Violations, subsections (1) to (13)
Motor Vehicle Act, Section 82 Certificate as Evidence, subsections (1) to (7)
Motor Vehicle Act, Section 83.2 Certificate as Evidence, subsections (1) to (8)]

Evidentiary Requirements: Conventional Radar v. Photo Radar.

Conventional Radar

The court generally hears the following evidence in speeding cases involving the use of conventional radar;
 
(a) an officer observing traffic determines that a vehicle is speeding based on a visual estimate of that vehicle's speed.

(b) a radar reading is then obtained pertaining to that vehicle which corroborates the officer's visual estimates of speed.

(c) the vehicle is stopped and the driver is personally issued a violation ticket.

(d) in Court the officer outlines their qualifications to operate the radar device and provide visual estimates of speed.

(e) the officer describes the calibration tests applied to the radar device, both internal and external; and that they are satisfied that those readings were proper and the radar device was in working order.

(f) at the conclusion of the officer's evidence, the accused may cross- examine the officer at length, on the events which transpired, the proper functioning of the radar device, the officer's qualifications, etc.

(g) the accused may then give evidence to the court to dispute that led by the officer. The objective is to create a reasonable doubt in the mind of the trier of fact that either they were not speeding or that the radar device was not functioning properly.

(h) If there is a finding of guilt, penalty options may include fines, suspension of driving privileges, or even incarceration. The conviction forms a part of the driving record and penalty points are assessed.
 

Conventional radar is subject to a litany of factors which may cause erroneous readings as outlined in The Law on Speeding and Radar (A. Manraj and P. Haines; Toronto, Butterworths, 1991). When originally introduced as an enforcement tool radar was viewed as a novel technology requiring expert testimony to satisfy the rules of admissibility. As acceptance of the technology became more widespread radar became accepted as one of a class of devices which enjoys a "presumption of regularity". This presumption is substantiated by the evidence of calibration and proper function overall which is led by the officer.

Sometimes the officer will neglect to lead evidence regarding calibration of the radar device, their qualifications to operate it, or the accused may create a reasonable doubt as to the accuracy of the reading obtained. In those cases a conviction may still be entered against the accused based on the qualifications of the officer to visually estimate the speeds of moving vehicles, combined with the rate of speed estimated in excess of the indicated limit.

Photo Radar (Speed Monitoring Device)

A photo radar matter which comes before the Court differs radically from conventional radar, in particular the initiation of the process, the prosecution, and the evidence led.
(a) The registered owner of a vehicle receives a Violation Ticket in the mail indicating that their vehicle is alleged to have committed a speeding offence. A photograph of the vehicle, imprinted with a black strip along the bottom edge containing coded information, is attached with the violation ticket. The date of the alleged violation may be two (2) to six (6) weeks prior to the receipt of the ticket.

(b) The registered owner of the vehicle may dispute the matter themselves or arrange to nominate the person who was driving the vehicle on the date in question. To date all photos have been taken from the rear of the vehicle so it is very difficult to identify the actual driver.

(c) When the matter comes to court the accused discovers that the prosecution is being carried out by Crown Counsel not the officer who issued the ticket.

(d) The accused is served with three (3) certificates at this time and advised that the Crown will be relying on these certificates to prove their case. No police officer will be called to give 'viva voce' testimony or be available for cross-examination. The violation notice received in the mail does not include notice that the Crown intends to proceed by way of certificate evidence nor are the certificates provided to the accused prior to the hearing.

(e) If a 'not guilty' plea is entered the Crown proceeds to submit certificate evidence which the unrepresented accused has an opportunity to raise questions regarding. If a 'live issue' can be established the accused may seek 'leave of the Court' to require the attendance of one or both officers, who prepared the certificate evidence, for cross-examination purposes. The same requirement of a 'live issue' is necessary to provide a basis for any disclosures request.

(f) After the Crown has closed its case the accused may given evidence or call witnesses in an effort to provide sufficient 'evidence to the contrary' to raise a reasonable doubt as to the accuracy of the speed monitoring device, identification, etc.; specifically related to the matter before the court. A general attack on either the technology and/or the enforcement policies employed does not constitute 'evidence to the contrary'. (R. v. Moreau, (1978) 42 C.C.C. (2d) 525 (S.C.C.)).

(g) If a conviction is entered the accused is liable to a fine up to the prescribed amount ranging from one hundred to one hundred and fifty dollars, with or without time to pay. No penalty points are assessed against their driving record nor is the conviction entered. As these are registered owner offences, the Crown does not submit driving records for consideration on sentencing although the accused will sometimes submit it if their record is good.

Part III

PROCEEDINGS AT TRIAL

The Facts

These proceedings commenced when Brian Walter Bosworth filed a notice of dispute following the receipt by mail of Violation Ticket No SA00030445 dated August 23, 1996. The violation ticket alleges that Mr. Bosworth is the owner of a vehicle bearing British Columbia licence plate M22475 which was recorded speeding contrary to Section 151(1) (now 146(1)) of the Motor Vehicle Act, in Vancouver at Granville Street and Balfour Avenue, on August 12, 1996. The violation notice further states that Mr. Bosworth is liable as the registered owner of said vehicle for the commission of the recorded offence pursuant to Section 76.1(2) (now Section 83.1 (2)) of the Motor Vehicle Act as the evidence has been gathered by means of a "speed monitoring device".

Disclosure Application

At the commencement of proceedings on January 22, 1997, Mr. Connaghan, appearing as defence counsel for Mr. Bosworth, made a disclosure application seeking:
 
(a) leave of the Court to require the attendance of the Qualified Operator
and the Enforcement Officer for cross-examination purposes pursuant to Section 76.2 (4) (now 83.2 (4)) of the Motor Vehicle Act.

(b) Copies of the manufacturer's specifications for testing the 'speed monitoring device' referred to in the Certificate of Enforcement Officer, Qualified Operator.

(c) Copies of all photographs taken by the Qualified Operator on that film roll used, which did not result in charges being laid.
 

Defence counsel stated that these disclosure items were required to counter the certificate evidence which the Crown will present. He further states that the certificates are "tantamount to affidavit material, the affiant having deposed to several things, some of which in my view are not factual in nature but do express an opinion." (Lines 5-8, Page 4, Proceedings at Application, January 22, 1997). Defence counsel submitted R. v. Stinchcombe (No 1) (1991) 68 C.C.C. (3d) 1 (S.C.C.)) and R. v. Garifoli, (1990) 60 C.C.C. (3d) 161 (S.C.C.) in support of the disclosure application.

Crown requested and received an adjournment to respond to the disclosure application. The court reconvened on May 1, 1997 at which time further submissions were received from defence counsel.

The first submission was an affidavit from Mr. Michael Cain who is the director of a not for profit society called Safety By Educations Not Speed Enforcement which goes by the acronym of 'S.E.N.S.E.' This organization actively campaigns against photo radar technology as it is currently employed for enforcement of speeding regulations. The affidavit purports to show a high error rate associated with photo radar technology. Nils Jensen now appearing on behalf of the Crown offered no objection to the admissibility of this document provided that the Crown had an opportunity to examine the affiant under oath. Mr. Cain admitted under oath that he could not interpret the error rate figures indicated in Schedule B of his affidavit which showed a maximum potential error rate of fourty-four percent (44%) for the photo radar camera. What constitutes an "error" was not explained.

Defence counsel made further submissions in the form of an American photo radar case known as Municipality of Anchorage vs. Braxley to support their contention that the accuracy of photo radar device is questionable to the extent that a general attack on the operational capabilities of the device was warranted.

Crown counsel submitted that the defence had failed to appreciate that the photo radar camera or "speed monitoring device", was sanctioned by legislation and provided with a "presumption of accuracy". A general attack upon the accuracy of an approved device is viewed as being contrary to the legislature's intent and not a valid defence since it does not meet the requirements of 'evidence to the contrary', (R. v. Moreau (supra)).

To attack the accuracy of an approved device requires an indication by the defence of some discrepancy relating to the actual speeding offence before the court. Once this 'live issue' has been established, the request for disclosure assumes an 'air of reality' as opposed to a 'fishing expedition', making the materials sought relevant (R. v. Eagles (1989) 11 M.V.R. (2d) 70, R. v. Hodgson (1990) 24 M.V.R. (2d) 42, (B.C.C.A.), R. v. Anutooshkin (1994) 7 MVR. (3d) 116 (B.C.C.A.))

The disclosure standard set in R. v. Stinchcombe gives discretion to the Crown not to disclose that which is not relevant. Crown offered to make the photo radar manual available for view at the Integrated Traffic Camera Unit (ITCU) office, as well as the negative of the photo in question. Crown also offered to have the manual available at trial.

Having failed to provide the court with a "live issue" to give relevance to the materials requested, Defence counsel was advised that no disclosure order would be made but that this was subject to review throughout the trial as the duty to disclose is an ongoing one.

Application For "Leave of the Court" To Require The Attendance Of Officers

Defence counsel entered a plea of 'not guilty' on behalf of Mr. Bosworth and Crown proceeded to submit the certificate evidence to establish its prima facie case. This being done, defence counsel made an application for leave of the Court to require the attendance of the enforcement officers who completed said certificates, for cross-examination purposes. This is an exercise in judicial discretion pursuant to Section 83.2 (4) of the Motor Vehicle Act.

The basis for the decision was questions that were raised in Municipality of Anchorage vs Braxely. What guarantees are there that the camera is operating parallel with, or co-linear to, the radar beam? In heavy traffic conditions could the radar be measuring the speed of one vehicle while the camera captured the image of a separate vehicle? Is there a calibration test which rules out this potential error? Leave was granted without consideration of R. v. Crosthwait (1980) 52 C.C.C. (2d) 129 which articulates that the proper calibration of approval devices is not a precondition of the admissibility of evidence gathered therefrom unless the legislation makes it a precondition.

This issue was subsequently not raised in cross examination vis-a-vis the calibration and deployment of the photo radar cameras.

Certificate evidence

After an adjournment to July 30, 1997 to allow for the attendance of the enforcement officers the trial resumed with a review of the certificate evidence submitted by the Crown.

The first certificate submitted is a Certificate of Enforcement Officer, Qualified Operator which is a prescribed document pursuant to the Motor Vehicles Act Regulations 26/58 and authorized under Section 83.2 of the Motor Vehicle Act. This document was completed by Enforcement Officer Reid, outlining the date, time and location he deployed the speed monitoring device, and the speed regulation being enforced. The certificate attests to the calibration and proper functioning of the device and is certified as a true copy of a record kept by the Superintendent of Motor Vehicles. The facts stated in the certificate matched the facts outlined on Violation Ticket No. SA00030445.

The second certificate submitted is the Certificate of Enforcement Officer, Photographic Evidence (Receding From Speed Monitoring Device). This is a two page document where page two (2) is a Vehicle Image page affixed to which is a 3 inch by 5 inch photographic image. The photographic image is imprinted with a black strip along the bottom edge approximately one half inch in height which contains a sequence of numbers and letters grouped together.

Page one of the Certificate of Enforcement Officer, Photographic Evidence contains a statement that Enforcement Officer Matharu has viewed the attached image; then proceeds to translate the encoded information found in the black strip (data line) along the bottom of the photo (captured image). He further states that the rear license plate visible in the captured image is M22475 issued in the jurisdiction of British Columbia. The information in this certificate matches the information on Violation Ticket No. SA00030445.

For the record it is noted by the trier of fact that the captured image is of good quality, clearly displaying a motorcycle and rider in the foreground of the photo as the only vehicles receding from the camera. Other vehicles are present in the background which, although very slightly out of focus, are clearly approaching the speed monitoring device. The license plate on the motorcycle is clearly legible, and the speed indicated on the data line is 68 kilometres per hour.

Defence counsel now sought to raise objections to the admissibility of the Vehicle Image page of the Certificate of Enforcement Officer, Photographic Evidence. The objection was then broadened to include the entire certificate. A voir dire was requested to allow defence counsel to submit evidence that the certificate was based on hearsay evidence supplied by novel technology which has yet to be proven accurate through expert testimony.

Crown submitted that since the certificates met all of the preconditions for admission established by the legislation then it must be admitted. R. v. Guinn, ((1997) unreported, B.C.S.C., No CC970321), a photo radar case citing R. v. Crosthwait (supra), supports the Crown's position. At this point the Crown proposed to withdraw the Vehicle Image page and proceed on the basis of page one of the certificate only. Defence counsel declined to accept this offer, but I will address this issue of conducting photo radar prosecutions in the absence of the photographic evidence at a later point in these reasons.

The application for a voir dire to review the admissibility of the certificate was rejected on the following grounds:
 

(a) the certificates had already been admitted into evidence with consent of defence counsel prior to the application to have the enforcement officer attend for cross-examination purposes.

(b) all the preconditions for the admissibility of the certificate had been met (R. v. Crosthwait (supra)).

(c) in the province of Alberta, which also employs photo radar technology, the courts have found that the Crown is not required to call expert scientific evidence to support its readings only to provide circumstantial guarantees of trustworthiness similar to other speed monitoring devices. (R. v. Halliday (1995) 19 MVR (3d) 7 (ALTA Prov. Ct.) and R. v. Chow (1991) 33 MVR (2d) (ALTA CA.)).

(d) the foregoing Alberta cases also find that the evidence produced by the devices may stand alone and does not violate the 'hearsay' rules. The acceptance of photographic evidence having testimonial value in its own right is now advanced in Wigmore on Evidence (3rd ed., Vol III (Chadbourn rev. 1970), at 790) and accepted in Canadian and English Law (see R. v. Nikolovski, [1996] 111 C.C.C. (3d) 403 (S.C.C.) and "Statute of Liberty" (The), [1968] 2 ALL E.R. 195 (P.D.A.))

(e) the "speed monitoring device" or photo radar camera has been given legal sanction by the provincial legislature pursuant to Section 83.1 of the Motor Vehicle Act. This provides for a presumption of accuracy regarding the ability of the device to photograph vehicles while recording their speed. The Supreme Court of Canada has recognized the "legislative intent" of providing such a presumption coupled with the ability to submit the evidence derived by way of certificates. Cases such as R. v. Moreau (supra) and R. v. Crosthwait (supra) establish that parliament specifically intended to reduce the evidentiary burden upon the Crown with regard to "approved devices" in that:
 

(i) the device has a presumption of accuracy.

(ii) proceeding by certificate evidence reduces the need for viva voce testimony.

(iii) general attacks upon the device, or policies surrounding its implementation, do not constitute 'evidence to the contrary' for the purpose of rebuffing the presumption of accuracy attached to the certificate evidence.
 

(f) The "legislative intent" also enters into the interpretation of the statute itself where ambiguities may exist. The definition of a 'speed monitoring device' states:
"means a speed monitoring device prescribed under subsection (8) that is capable of photographing or capturing the image of a motor vehicle while accurately and simultaneously measuring and recording its speed."
 
The word 'accurately' is applied to the measurement and recording of the speed of the motor vehicle, while the camera component is only described as "capable". There is no reference to the accuracy of the other encoded data which 'may' be recorded on the captured image, all of which is entered by the Qualified Operator or subject to amending at the time of the initial deployment. The Crown may attempt to rely on R. v. Crosthwait (supra) and the fact that the certificate is evidence of the facts stated therein (Section 83.2 (3)) if the presumption of accuracy is questioned based on ambiguities in the legislation. In R. v. Egger, 1993, 82 C.C.C. (3d) 193 at 210 - 13 (S.C.C.) the Supreme Court of Canada took notice of the legislative intent to facilitate the admission of evidence in drunk-driving offences where questions arose regarding the construction and interpretation of statutes.
 
The third certificate which was admitted into evidence was a Vehicle Ownership certificate showing that on the date of the alleged offence, Brian Bosworth was the registered owner of a vehicle (Yamaha motorcycle) bearing British Columbia license plate M22475. The certificate is certified as a true copy from the records of the Insurance Corporation of British Columbia pursuant to Section 82 of the Motor Vehicle Act.

Examination of Enforcement Officers

The Crown called Enforcement Officer Reid, the author of the Certificate of Enforcement Officer, Qualified Operator. Officer Reid is a police officer with five and one half years experience. His responsibilities are; to drive the vehicle containing the camera unit to various locations, set it up and calibrate the radar component, turn on the computer and perform some data entry, and hand in the computer diskettes and film cartridge for processing at the end of the deployment. These duties are outlined on a checksheet called an Integrated Traffic Camera Unit, Deployment Register, a two page document completed for each deployment and turned in each day. Defence counsel sought the admission of this document as an exhibit which was granted on the condition that the relevancy would be established during the course of the proceedings. It was also ruled that this document did not constitute personal notes of the officer but was an administrative report he was required to complete and submit daily.

Defence counsel raised no specific issues in cross-examination relating to the actual ticket received by Mr. Bosworth. It was established that Officer Reid does not make any notes regarding any speeding vehicles so he has no knowledge of Mr. Bosworth's alleged violation. He also made reference to the ability of the computer component of the photo radar device to stop (suppress) the camera from taking photographs of vehicles exceeding the threshold speed set for enforcement under certain conditions.

The next witness called was Enforcement Officer Matharu, the author of the Certificate of Enforcement, Photographic Evidence. Officer Matharu is a Special Constable with Richmond R.C.M.P. but has no police background in traffic enforcement. He has one week of formal training for his current duties with the Integrated Traffic Camera Unit which he has carried out for over one year.

Enforcement officer Matharu is also responsible for initiating the legal process by signing Violation Ticket No. SA00030445 (Aug. 23, 1997). Before signing (or rejecting) a violation ticket, Matharu first views the captured image and evaluates the photograph and data line against certain charge approval criteria. In addition to the captured image, Matharu has a completed violation ticket before him as well as the Vehicle Ownership Certificate, both of which he compares to the captured image, and each other, to confirm the facts set out.

Two of the criteria for rejection are; illegible license plate and/or illegible data line on the captured image. Matharu states that this happens a few times each month but can't state a definite number or percentage except that a few images per roll are usually rejected.

Perhaps Matharu misspoke himself but; if he is receiving a completed ticket and Vehicle Ownership Certificate from I.C.B.C. for a captured image which has an illegible plate, how is the initial determination of the plate being made? Do these documents create a bias in the mind of the enforcement officer to sign a violation ticket in cases where the captured image is only somewhat legible?

When Matharu signs the violation ticket he does not have the Certificate of Enforcement Officer, Qualified Operator before him and thus has no independent verification of the information on the data line, or that the captured image was generated by an approved "speed monitoring device". He further stated his Certificate of Enforcement Officer, Photographic Evidence is completed at a later date, without benefit of seeing the Certificate of Enforcement Officer, Qualified Operator. Matharu assumes that his supervisor has the certificate of the Qualified Operator which must be in order; otherwise the captured images, violation tickets, and certificates of vehicle ownership would not get to his desk for review. The only corroborating data he has is available from the computer system, however, this information was not described.

Defence counsel raised no details of Mr. Bosworth's violation ticket with Enforcement Officer Matharu and upon completion of cross examination, Crown closed its case and defence counsel advised that they would be calling no evidence.

Submissions

Crown submitted that there was no 'evidence to the contrary' before the Court to overcome the facts established by the certificate evidence that a vehicle owned by Mr. Bosworth was speeding contrary to Section 151(1) (now 146 (1)) of the Motor Vehicle Act on the date in question (Section 24, Interpretation Act RSBC, R. v. Crosthwait, supra, R. v. St. Pierre, (1995) 9. M.V.R. (3D) 1 (S.C.C.)).

Crown asked the court to distinguish two cases from defences Book of Authorities dealing with photographic evidence (Draper v. Jacklyn et. al., [1969] 9 D.L.R. (3d) 264 (S.C.C.); BENSON & HEDGES (CANADA) INC. v. Ross [1986]. 58 N.F.L.D.) & P.E.I.R. and 174 A.P.R., 38 (PEISC)) on the grounds that there is a legislative sanction for the 'speed monitoring device'. The Crown applied the same grounds of legislative sanction coupled with Section 83.2 of the Motor Vehicle Act and Section 24, Interpretation Act R.S.B.C., to distinguish the remaining three cases cited by defence counsel (R. v. Chow, [1991] 68 C.C.C. (3d) 190 (ALTA C.A.; R. v. Sutherland, [1993] 142 A.R., 381 (ALTA Prov Ct.); R. v. Lounsbury, [1993] 90 Man. R. (2d) 57 (Man Q.B.)). All of the foregoing cases are photo radar matters were issues of testing, accuracy, novel technology, and admissibility of evidence were aired.

Crown also submitted a recent photo radar decision from Alberta, R. v. Halliday ((unreported), 1997, March 6 ALTA C.A. No. 16375) which was heard March 6, 1997 in the Alberta Court of Appeal overturning the Provincial Court decision reported at [1995] 19 M.V.R. (3d) 7 (ALTA Prov. Ct.). In the reported case the Court had found the evidence of the police officer operating the device did not provide the circumstantial guarantee of trustworthiness required to make the photo radar readings admissible.
 

"As the police officer was not in a position to estimate accurately the speed of the vehicle with the naked eye and did not take meaningful notes, his evidence, apart from the evidence from the Multinova, was not sufficient to establish beyond a reasonable doubt that the motor vehicle owned by the defendant was speeding on the date in question.

Multinova readings are admissible if the surroundings reveal that the evidence is both accurate and enjoys circumstantial guarantees of trustworthiness. The circumstantial guarantees of trustworthiness were not supplied by the police officer's visual observations. The onus was on the crown to prove that the Multinova was capable of accurately measuring the speed of the defendant's vehicle, while it is not necessary for the Crown to establish through expert evidence how the particular speed detection device works scientifically, there must be relevant and appropriate evidence on the record from which the court can conclude that the device was functioning properly at the time of the alleged offence. The tests performed on the instrument to ensure its accuracy must be approved tests and these tests must satisfy the trier of fact that the instrument is capable of accurately measuring speed. Something other than simply turning the instrument on and relying on it to test itself is required. The fact (assuming that such a fact was established) that the "self-test" performed in this case is all that is required by the manufacturer does not mean that the test is an "approved test". The "self-test" was insufficient to satisfy the required circumstantial guarantees of trustworthiness." (page 7, head note)
 

In a one sentence judgment, the Alberta Court of Appeal overturned the lower court decision stating;
 
"Given the circumstantial guarantees of trustworthiness apparent on the face of this record, further evidence of external testing of the speed component of the Multinova device is not essential as a condition of the admissibility of the speed readout as proof of speed." (page 1, unedited transcript)
 
The content of the officer's testimony in R. v. Halliday is similar to that found in the enforcement officer's certificate before the Court.

R. v. Halliday considered R. v. Chow, which Defence counsel has cited to support their argument that photo radar readings are hearsay evidence at page 191:
 

"The speed of the vehicle as recorded on the photograph and repeated in the testimony of the police officer who operated the unit was hearsay and, therefore, prima facie inadmissible. Nevertheless, hearsay evidence will be receivable if the circumstances reveal that the evidence is both accurate and enjoys circumstantial guarantees of trustworthiness."
 
The Crown also relies on R. v. Chow at p.192:
 
"The record we have compels the conclusion that the Multinova, aptly described as a marriage between radar and photography, provided and recorded accurate information and what it recorded was admissible in evidence."
 
More compelling from the Crown's perspective is the following at p.192:
 
"While counsel for the respondent, in argument, suggested areas of fallibility in the operation of the Multinova, these were neither exposed in cross-examination nor the subjected of defence evidence."
 
Defence counsel submitted that the "silent witness" concept endorsed in R. v. Nikolovski (supra) could be distinguished, suggesting that it applied only to the narrow issue of identification of accused rather than a general application to the rules of admissibility for photographic evidence.

Defence also submitted that R. v. Crosthwait could be distinguished as it applied to breathalyzer devices not photo radar cameras which the Court should view as novel technology. As such the Court should find a reasonable doubt of the accuracy of the readings based on inadequate calibration, high error rate, and the charging officer relying on hearsay information.

Judicial Findings

During the disclosure hearing, I had advised defence counsel that I would be looking to breathalyzer law for precedent in determining this case which deals with certificate evidence arising from the use of an "approved device". I have also advised that I considered R. v. Nikolovski to apply regarding the concept of "silent witness" and the rules governing photographic evidence.

During the course of this trial defence counsel has not succeeded in distinguishing any of the leading cases on breathalyzer law nor R. v. Nikolovski. No evidence was called, or raised on cross-examination, that raises a reasonable doubt that:
 

(a) Mr. Bosworth's motor vehicle was not speeding.

(b) The 1icense plate is not registered to Mr. Bosworth.

(c) The photo radar device was not functioning properly on the date of the alleged offence.
 

The defence has relied primarily on a general attack upon the accuracy of the speed monitoring device. As an approved device having legislative sanction, the case law clearly states that this type of evidence is inadmissible as "evidence to the contrary" necessary to rebut the presumption of accuracy imparted on the device. Even expert evidence of this nature showing inherent problems and unreliability in the device does not meet the test if the evidence does not relate specifically to the offence in question (R. v. Moreau (supra); R v. Crosthwait (supra)). In keeping with the recognition by the Courts of the fact that legislatures must have considered potential problems with the device when drafting the legislation, we must also rely on the government to fulfill it's duty to the electorate in terms of ensuring:
 
(a) that adequate independant investigation into the accuracy off the device was carried out preliminary to the implementation of the photo radar program, and

(b) that the ongoing use of photo radar technology is monitored to detect and react to potential problems. (For example, see R. v. Speller, [1993] 47 MVR (2d) 128 (Ont. Prov. Ct.)). Issues related to the technology such as those outlined in Municipality of Anchorage vs. Braxley should be raised by groups such as S.E.N.S.E. with those responsible for overseeing the program. In the alternative, they are entitled to take their concerns to individual M.L.A.'s, the Ombudsman, or to the media in order have them addressed.
 

The alternative submission from the defence is that Enforcement Officer Matharu did not have any "reasonable and probably grounds to believe" that the evidence before him when he signed the violation ticket came from an approved "speed monitoring device". As such the violation ticket should be quashed.

Under oath, Matherau was forthright and positive regarding his belief that images he had before him were from an approved "speed monitoring device" despite not having the Certificate of Enforcement Qualified Operator before him. He also stated that he had information before him on the computer relating to the ticket but what type of information this might be was not brought out in evidence. The presence of additional information could explain how Matharu can confirm that the offence cited on the violation ticket is the correct one as there is no way to confirm this directly from the speed indicated on the data line of the captured image.

Martins Annual Criminal Code, 1997, (Canada Law Book Inc. Aurora, Ontario) carries a brief synopsis dealing with 'the belief of the informant' at page 1253:
 

"There must not be a wilful disregard of the statutory requirements of laying an information; there need only be reasonable compliance with those provisions. Accordingly, where the informant's belief was conclusive within the bounds of reasonableness an information sworn on positive, rather than reasonable and probable grounds, was upheld: McGuffey v. The Queen (1972), 17 C.R.N.S. 393, [1972] 2 W.W.R. 462 (Sask. Dist. Ct.).

An information regular on its face is presumed to be valid and if the defendant claims a latent defect such that the informant did not have reasonable and probable grounds to believe the alleged offence had been committed, then the onus is upon him to demonstrate his claim upon a balance of probabilities: R. v. Peavoy (1974), 15 C.C.C. (2d) 97."
 

I find that Enforcement Officer Matharu did have reasonable and probable grounds to believe, and did believe, that the captured image was from an approved speed monitoring device. It is somewhat disquieting that Matharu has no police training in speed enforcement, coupled with the presence of pre-printed tickets and vehicle registration certificates when he is attempting to independently apply charge approval criteria to the captured images before him. Hopefully, this procedure can be amended in the interest of preserving the fairness and integrity of the enforcement process which in the public mind reflects on the justice system as a whole.

Lastly, the defence has not led any evidence regarding any defects in the legislation itself that would bring the prosecution into question.

Therefore; in the absence of any evidence to the contrary sufficient to rebut the presumption of accuracy legislated to the certificate evidence, I find Mr. Brian Bosworth guilty of the offence of speeding.
 

[signed]
Gerry Hayes,
Sitting Justice of the Peace
September 10/97

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PART IV

COMMENTARY

THE ISSUE OF THE 'CAPTURED IMAGE' AS EVIDENCE

Background

During the course of arguments over the admissibility of the Certificate of Enforcement Officer, Photographic Evidence, Crown offered to proceed with the prosecution without the Vehicle Image page (page 2) which contains the captured image (photograph with imprinted data line). The Crown would rely on the statement of the Qualified Operator on page one of the certificate that he/she had viewed a captured image with an identifiable license plate as noted.

The presence of the licence plate in the photo portion of the captured image is the only link to the registered owner of the vehicle. Based on the license plate in the photo a Vehicle Ownership Certificate is generated by I.C.B.C. which provides the name and address of the registered owner for the purposes of preparing the violation notice. The certificate is submitted as evidence at trial to prove the registered ownership of the vehicle as well as to establish the make, model, colour, etc. if those matters should be at issue during the proceedings.

By virtue of Section 24 of the Interpretation Act RSBC, and the fact that the evidence outlined in the Certificate of Enforcement Officer, Photographic Evidence has been gathered by an approved instrument having a presumption of accuracy, the Crown may be entitled to proceed with a prosecution without submitting the captured image as evidence.

Assuming that the accused receives a copy of the image with the violation ticket, it may still be submitted as an exhibit by the accused to support any argument of "evidence to the contrary" to rebut the presumption of accuracy in the certificate evidence.

The photographic image is the only link between the accused and the offence charged. Officer Matharu, who signs the violation ticket, does so only after reviewing both the content of the photograph and the imprinted data line. Both components of the captured image must meet all the requirements of the charge approval criteria established under the Photo Radar Program.

Mr. Matharu states that his rejection rate is very low but advises that a few recorded images are rejected from each roll due to errors in the data line; while others are rejected based on the quality of the photograph, such as an indistinct license plate. Each roll contains between 300 and 600 prints.

Keeping in mind that "evidence to the contrary" must relate specifically to the actual event which is before the Court; the Court should then consider the quality and accuracy of the photograph and/or the imprinted data line.

Considerations

The leading case on photographic evidence is R. v. Nikolovski, ([1996] 111 C.C.C. (3d) 403 (S.C.C.)) which recognizes that technological advances such as videotaping benefit the truth seeking process. The adoption of the "silent witness theory" as outlined in Wigmore on Evidence {3rd ed., Vol III (Chadbrown rev. 1970), @ 790} gives probative value to the pictorial evidence "once there is adequate assurance of the accuracy of the process producing the picture".

Cory, J. states at p. 414 [25] that, "In my view, there cannot be any distinction between a still photograph and a videotape". He goes on to p. 416-417 [28-32] to outline rules regarding photo evidence;
 

"VIII. Summary of the Positions as to the First Iissue (the Use That Can Be Made of Photographs or Videotapes)

[28] Once it has been established that a videotape has not been altered or changed, and that it depicts the scene of a crime, then it becomes admissible and relevant evidence.... It can and should be used by a trier of fact to in determining whether a crime has been committed and whether the accused before the court committed the crime.... It may provide such strong and convincing evidence that of itself it will demonstrate clearly either the innocence or guilt of the accused.

[29] the weight to be accorded that evidence can be assessed from a viewing of the videotape. The degree of clarity and quality of the tape ...... will go towards establishing the weight which a trier of fact may properly place upon the evidence.

[30] Although triers of fact are entitled to reach a conclusion as to identification based solely on videotape evidence they must use care in doing so... in order to convict on the basis of the videotape alone, they must be satisfied beyond a reasonable doubt that it identifies the accused.

[32] The jury or trial judge sitting alone must be able to review the videotape during their deliberations

[32] ...... it would be helpful if after reviewing the tape, the trial judge indicated that he or she was impressed with its clarity and quality to the extent that a finding of identity could be based upon it. This courtesy would permit Crown or particularly defence counsel to call, for example, expert evidence as to the quality of the tape......"
 

The Crown contends that the speed monitoring device used to capture the image and record the data thereon is an approved device having a presumption of accuracy. Since every recorded image that leads to a prosecution must be accurate in relation to both the imprinted data as well as the visual image, the certificate evidence alone satisfies the evidentiary burden. The captured image itself is just background information not essential to proving the Crown's case.

This recorded image represents the entire case for the Crown in terms of providing the evidentiary basis for the certificates. The provision of the captured image as an adjunct to the certificate evidence is provided for in Section 76.2 (now 83.2) of the Motor Vehicle Act as well as required by the format of the prescribed certificate pursuant to Motor Vehicle Act Regulation 26/58, Schedule A.

The Crown may successfully argue that amending the legislation to allow for further "streamlining" of the prosecution by the removal of the requirement to produce the recorded image at trial is lawful. What the Crown seems to be losing sight of in this highly technical argument are two issues:

1. The Appearance of Fairness:

It is not enough that justice be done; it must also appear to be done. In photo radar matters the vast majority of accused already face a series of hurdles in attempting to conduct their own defence,
 
a) they are facing legal counsel armed with case law, while they are unrepresented

b) they receive certificate evidence at trial, not before

c) no police officers are present to cross examine

d) disclosure orders or leave of the court to call officers for cross examination purposes requires a "live issue" argument

e) general attacks upon the accuracy of the device or the legislation do not constitute '"evidence to the contrary"

f) there is often no recollection of the alleged event due to the time lapse between that event and receipt of the ticket

g) general unfamiliarity with legal process and argument

h) stress related to appearing in court for the first time
 

Now the Crown proposes to remove from the court's consideration the "best evidence" gathered by the "silent witness" which may provide the visual cue to prompt the accused to raise an argument that constitutes "evidence to the contrary".

2. Ability of Accused to Make Full Answer and Defence

(a) In addition to the cumulative effect of the foregoing items, the trier of fact would also be faced with the prospect of having to subject a recorded image submitted by the accused in support of their arguments, to the rules of admissibility outlined in R. v. Nikolovski (supra). In the event that the Crown fails to bring an original or does not submit a recorded image as evidence there is nothing to compare the accused's copy with. Photo enhancement / alteration technology is now widely available to the general public which could create admissibility problems for an accused attempting to use the same recorded image that is the basis for the prosecution as "evidence to the contrary'" in their defence.

(b) The granting of "leave of the court' to require the attendance of one or both enforcement officers for cross-examination purposes is a judicial decision. This decision generally requires the accused to demonstrate a "live issue'" specific to the offence before the court to support their application. The majority of the applications which are granted find the basis for their "live issue" in the captured image itself. If the only image before the court is one submitted by the accused, admissibility issues may preclude a successful application.
 

The removal of the captured image from the Crown's evidentiary package would also hamper the trier-of-fact in the performance of their judicial duty to intervene where necessary on behalf of unrepresented accused, to ensure that trails are conducted fairly and that no obvious defence is unexplored for want of legal representation.

Judicial intervention in Photo radar matters often takes the form of comments relating to the quality of the recorded image, legibility of the license plate, relative darkness of the photograph vis-a-vis recorded time of day on the data line, etc. Cross-examination of the enforcement officers on the issue of altered or "enhanced" captured images being submitted as evidence is another area where judicial intervention arises.

Wolfe v. The Queen (March 12,1991), Terrace No. 12529 (B.C.S.C.) contains an overview of the leading cases on this subject as follows:
 

The appellant relies on Rex v. Darlyn (1974) 3. C.R. 13 (B.C.C.A.) At p. 16, for the proposition that, even pre-Charter, there was a duty on the trial judge at common law to ensure a fair trial.

"There are two traditional common-law rules which have become so firmly embedded in our judicial system that a conviction is very difficult to sustain on appeal if they are not observed. The first is that, if the accused is without counsel, the court shall extend its helping hand to guide him throughout the trial in such a way that his defence, or any defence the proceedings may disclose, is brought put to the jury with its full force and effect. The second is that it is not enough that the verdict in itself appears to be correct, if the course of the trial has been unfair to the accused."

(See also, R. v. Huebschwerlen (1965) 45 C.R. 393 (B.C.C.A.) At pp. 396-7).

In Re Ciglen and The Queen (1979) 45 C.C.C. (2d) 227 (Ont. H.C.) at p. 231, the court held:

"...while there is no law [or] rule of practice in any Canadian jurisdiction that an accused must be provided with counsel, it has been repeatedly stated that a trial that becomes unfair because of the absence of counsel may be aborted or its result set aside."
 
The Crown acknowledges an obligation on the trial judge to assist and guide an unrepresented accused, but points to his right to conduct his own defence if he so chooses. It also emphasizes that the duty on the trial judge to help an unrepresented accused must be exercised in such a way that he is seen to remain impartial .....
In the case of R. v. Arbour [1990] 4 C.C.R. (2d) 369 (Ont. C.A.) that court went so far as to impose an obligation on trial judges to make inquiries and to explore possible Charter violations, regardless of whether or not the defence had raised the issue; where there is admissible uncontradicted evidence before the court of a possible breach.

Without the presence of the recorded image before the trier-of-fact the prospect of judicial intervention on behalf of the unrepresented accused to ensure that both the fairness and the appearance of fairness in the trial process are maintained will be severely limited.

The proposition that the Crown would proceed with a photo radar prosecution without the "best evidence" available, (the captured image) takes the application of the "silent witness" theory one step too far. If combined with the Crown's position taken in R. v. Ianakiev (unreported, August 13, 1997, Vancouver No. SA00844143) that the captured image may not be considered as "evidence to the contrary", the process takes on a distinct flavour of unfairness.

Since the accused in most cases was either not the driver of the vehicle or has no recollection of the alleged violation it is the presence of visual cues in the photograph portion of the captured image which may give rise to evidence which rebuts the certificate evidence. Such cues may be:
 

a) darkness or lightness of photo relative to time of day or time of year

b) if location can be determined from photo it may not correspond with data line, throwing the offence into question

c) license plate may be indistinct

d) other vehicles may be present travelling in the same direction

e) accused may be able to identify driver

f) there may be an indication that the photo has been enhanced
 

In R. v. Ianakiev (supra) the Crown cited R. v. Guinn (supra) and R. v. Hillcrest Plumbing and Heating (unreported, May 14, 1997, Vancouver Registry, No. SA00872459) as supporting the argument that the captured image is not evidence which the trier of fact may consider. Both of these cases were distinguished on the basis that R. v. Nikolovski (supra) was not applied.

I recognize the basic conflict between the Supreme Court of Canada rulings on certificate evidence (R. v. Crosthwait) and photographic evidence (R. v. Nikolovski) when applied to photo radar matters. The fact remains that in breathalyser cases the certificates support the viva voce testimony of the witnesses, and identity of the accused is generally not an issue. The certificates in photo radar matters are based on photographic evidence only, which constitutes the entire case for the Crown, including the establishment of identity of the defendant owner. The photographic evidence (captured image) is subject to human interpretation by an enforcement officer who applies charge approval criteria as opposed to transcribing a blood alcohol reading in a breathalyser case. On a number of occassions the Crown has entered a "stay-of-proceedings" based on evidence found in the captured image which the enforcement officer has missed. In addition to the foregoing treatment of the captured image by the Crown, as "evidence to the contrary" in these '"wrongful prosecutions"; the Crown has even submitted the captured image for judicial view at the sentencing portion of photo radar trials. The issue of whether or not enhanced / altered photographs may be entered as evidence has yet to be fully argued (R. v. Ianakiev (supra)).

Reccommendation

Photo radar technology is an accepted speed enforcement tool and the Crown conducts its prosecutions fairly. It is equally important however, to address the "appearance of unfairness" which is left with many accused who are convicted of speeding offences under photo radar. When they exit the courtroom it is with the distinct impression that they did not really have 'their day in court' due to their inability to raise a defence, or even raise questions, in the face the style of prosecution sanctioned by the legislation.

I would humbly suggest that the entire deployment of the photo radar camera be videotaped or otherwise recorded. A person who subsequently receives a violation ticket in the mail who wishes to satisfy themselves as to the circumstances of the violation may attend at the Integrated Traffic Camera Unit office and view the time period during which they passed the camera. This may serve to reduce the number of tickets disputed by providing confirmation to the vehicle owner of the alleged violation. The recorded video might also provide Crown with rebuttal evidence in some circumstances or even the basis to proceed with prosecution where there has been film or camera problems, (R. v. Nokolovski (supra)).

While some might say that this is just a traffic court matter before a Sitting Justice of The Peace, the fact remains that this level of court is often the only contact that most citizens have with our criminal justice system. What transpires in this court colours the public perception of the entire system. As such, it is critical that fundamental judicial principles are upheld and any necessary steps are taken to eliminate any appearance of unfairness which may creep into these proceedings.
 

"The inequality of the contest between the citizen accused on the one hand, and the vast apparatus of the State when it is set in motion against him has always made an impression on me. ... I am heartened by the view that the inequality that results from this seeming imbalance is grossly diminished when what I call the vast apparatus of the State, approaches the jury box. There it comes to a halt and the demand for fairness and equality finds its way right into the core and the heart of the judging mechanism."
(Page viii, preface, Advocacy in Court, A tribute to Arthur Maloney, Q.C., Franklin Moskoff; Q.C., Canadian Law Book Inc., Toronto, Ontario)
 
By substituting the words "trial judge" for the words "jury box" in the foregoing passage I feel that we arrive at a guiding principle to follow; especially when dealing with unrepresented acccused. I urge the Crown not to proceed with photo radar prosecutions without the captured image, and I reaffirm my decision in R. v. Ianakiev that the image:
 
a) may constitute evidence in its own right,

b) may be subject to a judicial view,

c) may in some cases be considered as 'evidence to the contrary'.
 

[signed]
Gerry Hayes,
Sitting Justice of the Peace
September 10/97

Rev: 1998.09.29