Old News - 1999

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December 8, 1999 More news updates...

It was reported to SENSE that in four Summary Convictions Appeals being heard in BC Supreme Court in Vancouver today, the Crown consented to entering acquittals on all four cases. Reportedly, these were all appeals from deemed convictions resulting from improper process serving -- that is: the ticket not being delivered directly to the person named on the ticket. Crown reportedly indicated that this involved one particular process server and that an investigation is underway.

Since the beginning of the photo radar, process serving has been used to ensure the courts that a person charged with a photo radar offence has been informed of the charge. When a ticket is served, the server completes a Certificate of Service (a legal document) which states that the process server served the ticket "by delivering it to him / her personally." Falsely completing a certificate would be viewed by the police and courts as a criminal offence.

SENSE continues to receive frequent reports of improper service, as it has since the start of photo radar. If you have been improperly served, you could file a complaint with ICBC (they look after the process serving contracts) and through Crown Counsel (a contact list is on our "Going to Court" page).

While we don't know when a transcript will be available, this decision may have set a precedent for those people who were improperly served. Crown has effectively acknowledged that the process serving system does not adequately protect defendant's rights.

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Doug Stead (Tri-M Systems, who is fighting photo radar on Constitutional grounds) has filed an "application to vary order" of Madam Justice Proudfoot's BC Court of Appeal decision not to hear his appeal. A link to the application is available on the Stead page. Stead indicated to SENSE that he intends to go to the Supreme Court of Canada if the BC Court of Appeal will not hear his appeal.

A BC Supreme Court decision (R. v. Paruk) is expected in January which should answer the question as to whether the PR100 model number issue is fatal to the Crown's case (see News for January 8, 1999). If the machine is incorrectly prescribed in the Motor Vehicle Act Regulations, all tickets for offences before May 6, 1999, would likely be discarded. If you are currently fighting a ticket for an offence before May 6, 1999, you could ask for "an adjournment pending the outcome of the Paruk decision."

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SENSE continues to receive reports of disputed tickets taking many months to get into court (see News for October 26, 1999). We believe that the window for the first court date (from the date of alleged offence, with no adjournments/delays caused by you) is likely between 12 and 16 months, but could be even less. If you intend to argue unreasonable delay, you should file a Notice of Constitutional Question with the Crown at least 14 days prior to your hearing. A sample Notice of Constitutional Question is available to assist you.

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The Doug Stead/Tri-M Systems Constitutional court challenge on photo radar may have come to a halt. The BC Court of Appeal has refused to hear the appeal because it contends that Stead's grounds of appeal have changed too much from the issues heard in the previous trials. More information available on the Stead page.

As BCTV reported tonight, some seven to eight thousand outstanding photo radar tickets issued before June 1998 may no longer be prosecuted. Under the Charter of Rights and Freedoms, people have a right under section 11(b) "to be tried within a reasonable time." It would appear that the Attorney General might finally restore some fairness to the justice system and stop pursuing these old tickets.

SENSE receives frequent reports from the public that very old photo radar tickets continue to be process served, and suggests that (if served) these tickets be disputed under "unreasonable delay". While we have heard unsubstantiated reports that Ontario justices use a window of eight months for traffic tickets (from date of offence to first appearance in court -- with no delays caused by the defence), this administrative decision would appear to place an outer limit on BC tickets at around 16 months (certainly with some room to move closer to eight months).

This episode highlights one of the fundamental problems with automated enforcement -- delay, at the convenience of the government. If speeding was a serious offence and not just a revenue generator, these tickets should be issued by police officers (providing immediate notification) and prosecuted as quickly as possible.

The Attorney General announced today that red light cameras will begin issuing $144 tickets on July 15. Currently, there are only three active red light camera sites in BC, but 120 sites are planned using 30 cameras rotated between the sites. A list of red light camera sites (active and proposed) is now on-line.

Tickets are issued only to vehicles which enter the intersection after the light turns red and then continue through. As expected, this program is projected to cost $14 million just to develop -- that is $120,000 per direction of an intersection. While SENSE is not actively opposing these cameras, our position is that they are much more expensive and have lower efficacy than conventional enforcement and penalize the owner while failing to apprehend the (frequently intoxicated, impaired, unlicenced, or uninsured) driver.

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Two new web sites on-line...

Lower Mainland web surfers might be interested in these sites:

• GasWars an interactive way for drivers to find the best gas prices.
• BC Dangerous Driver Complaint Site a way for you to identify bad drivers [no longer active].

Despite abundantly clear evidence that photo radar is not working (BC has worst fatality increase of any province in Canada -- up 5.4% while Canada down 12%), our government plans to acquire 10 more photo radar vans. Additional information is in our press release.

A new BC Supreme Court decision (R. v. Weber) clearly shows that the threshold a defendant must meet in order to be granted the presence of the police officer or charging officer is fairly low. The Justice of the Peace in the initial hearing denied the defence application for the police officer (and convicted the defendant) despite testimony which appears to show that there was no reasonable way the defendant could have been speeding when driving past the camera.

SENSE has been informed that a few Justices of the Peace have been convicting motorists who have credible "evidence to the contrary" -- preferring instead to believe that an uncorroborated machine must be infallible (!) and ignoring evidence which raises a reasonable doubt and should result in an acquittal.

Photo radar trials are conducted through three "certificates" completed by the police officer in the van, the charging officer who read the photo and made the ticket, and ICBC to confirm the name of the registered owner. As police officers do not make independent corroborative visual estimations of vehicle speed, this is the only evidence of the Crown.

The law is quite clear on the issue of "evidence to the contrary", as section 24 of the Interpretation Act states:

If an enactment provides that a document is evidence or proof of a fact [...] the fact is deemed to be established in the absence of any evidence to the contrary. (emphasis added)

The legal requirement is clearly "any" evidence to the contrary. Of course, the evidence must have credibility, but this is not an insurmountable burden -- as it has become in some courts. If the defendant can raise credible evidence to the contrary, the certificate that the machine was working (for instance) should have no evidentiary weight and the case for the Crown would fall apart.

The requirement of "proof beyond a reasonable doubt" applies to the Crown, not the defendant. Unfortunately, the structure of photo radar prosecutions favours the Crown (who is represented by lawyers), not the unrepresented public it should be serving.

Just in time for good driving weather, ICBC is again funding police overtime enforcement. And, to ensure that this is not seen as merely padding the government's empty coffers, the program is tagged to "combat aggressive driving" rather than just "speeding". You can see their press release and review SENSE's calculations of the revenue potential for both the government and ICBC from these programs.

Corridor	Highways/Routes	Dates
Abbotsford and Mission (Municipal)	Highway 11	TBA
Burns Lake to Houston	Highway 16	May 2 to Oct 30
Cache Creek to Alberta Border	Highway 1, Highway 93	April 11 to Oct 16
Campbell River (Urban)	Dogwood / Elm & Highway 19/19A	April 11 to Dec 18
Coquihalla North	Coquihalla Highway	April 11 to Oct 2
Delta (Municipal)	TBA	TBA
Delta	Highway 99/91	April 11 to Dec 18
Fairmont to Alberta Border	Highway 1, Highway 95, Highway 93	May 2 to Oct 16
Fort St. John (Winter Corridor Program)	Highway 97	Oct 31 to Dec 31
Fraser / Cariboo	Highway 97, Highway 16	April 11 to Nov 27
Fraser Canyon South	Highway 1	April 11 to Nov 27
Fraser Valley	Highway 1	April 11 to Dec 18
Grand Forks to Creston	Highway 3	May 2 to Oct 16
Hart / Alaska Hwy	Highway 97	April 11 to Oct 30
Island Highway	Highway 1, Highway 19	April 11 to Dec 18
Kamloops (Urban)	Highway 1	April 11 to Dec 18
Kelowna (Urban)	Highway 97/33	April 11 to Dec 18
Langley (Upper Levels)	Highway 1	April 11 to Dec 18
Langley (Urban)	200 St	April 11 to Dec 18
Lougheed	Highway 7, Highway 9, Highway 11	April 11 to Dec 18
Moyie Lake to Alberta Border	Highway 3	May 2 to Oct 16
Nanaimo (Urban)	Highway 19/19A	April 11 to Dec 18
North Vancouver (Urban)	Marine Dr. & Esplanade	April 11 to Dec 18
Okanagan	Highway 97	April 11 to Oct 30
Pat Bay	Highway 17	April 11 to Dec 31
Prince George (Urban)	Highway 97/16	April 11 to Dec 18
Richmond (Urban)	Blundell	April 11 to Dec 18
Sea-to-Sky	Highway 99	April 11 to Dec 31
Smithers	Highway 16	May 2 to Oct 30
Sunshine Coast	Highway 101	April 11 to Oct 2
Surrey (Urban)	Pacific Highway	April 11 to Dec 18
Terrace to Prince Rupert	Highway 16	May 2 to Oct 30
Vancouver (Municipal)	TBA	TBA
Vanderhoof	Highway 16	April 11 to Oct 30
West Kootenay (Winter Corridor Program)	TBA	Oct 17 to Dec 31
Western Communities (Urban)	Highway 1A/14	April 11 to Dec 18
Yellowhead	Highway 5	April 11 to Oct 16

The Province reported today that process servers have been unable to locate about 110,000 alleged speeders to serve tickets. However, they also reported that "ICBC now requires all photo-radar fines to be paid before your insurance can be renewed." (emphasis added)

SENSE is not aware of any legislative changes which would permit ICBC to require payment of an unserved and unacknowledged ticket -- if there had been, there would be no need to serve the mailed ticket!

ICBC's literature can be misleading -- a red notice sent with insurance renewals states "you may be denied renewal of your insurance or driver's licence until any outstanding traffic fines... are paid." Note carefully that the meaning of "may be denied" is not the same as "will be denied". Additional information is located on our page "Dealing with a Ticket" under the heading "What will happen if I don't get served?"

The Province also reported and SENSE has received numerous enquiries about old tickets being served. Despite the ability of the government to serve tickets at any time, the courts place practical limitations on reasonable notice. SENSE has heard one Justice of the Peace remark that tickets which take more than 12 months from date of alleged offence to first date in court (and no delays caused by the defendant), should be stayed. If you intend to argue this issue, you may be asked to file a simple "Notice of Constitutional Question" letter, as this is an issue under the Charter of Rights and Freedoms.

The Crown successfully prosecuted a photo radar case where the defendant raised the "PR100" / "PR100NZ" model number issue. However, all justice of the peace decisions are not binding upon other justices. The Crown chose a case with an unrepresented defendant, rather than appealing either of the two judgments noted below (see February 26)-- where the defendents were represented by lawyers. Whether this issue will continue to be a viable defence with other justices is unknown at this time.

The case is R. v. Akita (March 1, 1999) (B.C. Provincial Court - Traffic Division, Vancouver Registry No. SC0222133, Turley JP), (11 pages).

You can now read the entire transcript from the first successful dispute regarding the "PR100" / "PR100NZ" model numbers of the cameras, and the transcript from the February 23rd decision in Kelowna -- as is being reported in today's papers. For more information, see News for January 8, 1999.

At this time, SENSE calls upon the Attorney General to stay charges on all outstanding (unconvicted and unpaid) tickets and notify the public. These tickets are clearly flawed and should not require motorists to attend in court to dispute them.

It seems that ICBC can't stop telling us how effective their road safety programs are. Barely a month goes by without a press release like this...

Between January 1 and September 30, ICBC received 19,000 fewer claims than it did for the same period in 1997. "Injury claims are 1,500 below 1997 levels and the number of injury claims costing more than $100,000 fell by 14 per cent -- a clear indication that ICBC's road safety programs are working," [Mike Farnworth, minister responsible for ICBC] said.

...or expensive advertisements in the newspapers.

But the spin ignores one of the largest determinants of traffic crashes... the economy, and BC is clearly in the midst of tough economic times.

SENSE recently obtained a copy of the ICBC paper "The Nature and Causes of the 1982 Traffic Accident Casualty Reductions in British Columbia". In 1982, fatal crashes fell 31% from 1981, injury crashes 23%, and property-damage-only crashes 9%.

Among some of the more enlightening quotes from the paper are:

• "... simply by realizing the trend in employment and fuel sales one could have predicted the approximate nature and magnitude of the 1982 casualty decrease."
• "Fatalities and property-damage-only accidents were also found to correlate significantly with economic factors although at a reduced level of association. This was undoubtedly since fatalities in B.C. are relatively small in number and thus subject to considerable random fluctuation and p.d.o. accidents are not as reliably reported as those where injuries are involved. Property-damage-only accidents are also highly weather-related." (emphasis added)
• "We thus have our confirmation that the major part of the 1982 traffic accident casualty reduction was an expected result of the economic down-turn since a very simple economic model could have predicted it..."

The following graph shows BC fatalities (and the percentages of some reductions) and is also shown on our "Is Speed Killing Us?" page. As you can see, the recent reductions are unremarkable and entirely reasonable given the poor state of the BC economy.

A decision yesterday in Kamloops may invalidate all photo radar tickets issued before the government can change the Regulations and police forms. Additional information is available in our press release.

As a product of reviewing various service records and technical information, SENSE discovered that the photo radar units used in BC have a model designation "PR100NZ" (the "NZ" referring to New Zealand which also uses these units). Unfortunately for the government, they have prescribed these units in the Motor Vehicle Act Regulations only as "PR100". Because photo radar trials are conducted through the short-cut of certificate evidence, the standard required of that evidence is higher -- see R. v. Smith, at paragraph 6, which reads:

"... a penal section such as s. 83.2 [certificate as evidence], which is clearly a provision designed to circumvent the common law evidentiary rules and to assist the Crown in proving its case, should be strictly construed and, if ambiguous, interpreted in favour of the accused."

SENSE has been informed that the government's response to this ruling is that this is not an issue because the officer can simply testify that this machine is the same as a PR100. Fortunately for us, the officers are not experts on the design of the radar machines and cannot give technical evidence that should only be given by the manufacturer and/or engineers (if they do, object!). Also, the fact remains that the machine used (the "PR100NZ") was not the same as the machine designated as a "speed monitoring device", allegedly capable of "accurately and simultaneously measuring and recording speeds".

Motorists with unconvicted photo radar tickets may be able to use this decision to get their tickets stayed. Additional information will be posted as it is available. The transcript (R. v. B & L Security Patrol (1981) Ltd.) is now posted!
 

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