Old News - 2000

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December 11, 2000 Traffic Services Study Final Report released today

The government has released their Traffic Services Study Final Report (in PDF) today -- see the press release. The report contains an underlying bias of supporting continued high levels of speed enforcement, based largely on statistics of little value. Further analysis will be posted as time permits.

SENSE Director of Research Michael Cain will be on mycityradio.com at about 3:20 today with host Shannon Nelson.

You can now read the 20 page plus five graph SENSE response (in Adobe PDF format, 212K) to the Traffic Services Study Discussion Paper (see News for July 14 + 17, 2000). See also our press release.

The are many well documented issues discussed in this document that should eliminate any belief that photo radar has in any way been effective in saving lives or that photo radar is cost effective. Also included are graphs of fatalities which clearly show that the introduction of photo radar has had no discernible effect in reducing motor vehicle fatalties.

CORRECTION: The deadline for submissions has NOT been extended until Friday August 25th.

The government has released a "Traffic Services Study Discussion Paper" (also available in Adobe PDF) for review (see press release). This paper flows from the review of photo radar, corridor speed enforcement, and other programs announced by then Attorney General Ujjal Dosanjh as a means of making photo radar a non-issue during the NDP leadership campaign.

The paper raises many interesting issues that obviously were ill considered by the original architects of photo radar -- points that SENSE has raised many times. We'll provide a detailed analysis in the future.

The authors are seeking public input to their discussion paper -- before August 18, 2000. Please voice your considered thoughts on photo radar, speed enforcement, ICBC intervention in policing, or any of the other topics raised by the report. Send written comments to:

e-mail: trafficstudy@ag.gov.bc.ca
fax: +1 (250) 387 0103
mail: P.O. Box 9206 Stn. Pro. Govt., Victoria BC V8W 9J1

Photo radar constitutional fighter Doug Stead was successful in getting the BC Court of Appeal to hear his case. The following is his press release:

VANCOUVER - Court of Appeal - February 2nd, 2000 at 4:00 PM. A three member panel of the BC Court of Appeal, consisting of Justices Southin, Hollinrake, and Rowles, ruled that not only did the Court have authority to review and modify the prior order of Madam Justice Proudfoot (who had earlier refused leave to appeal), but that they would vary her order and grant Tri-M leave to appeal it's photo radar case. The order stipulated that the issues to be argued be confined to Section 11(d) of the Canadian Charter of Rights and Freedoms. Also included in the order was permission for the Crown and Tri-M to enter written section one augments should the Court find the Photo Radar laws do violate the presumption of innocence section of the Charter. In issuing this order, the Court noted that the 11(d) arguments in question were of sufficient merit, and importance to the people of BC, that the legal issues surrounding this legislation should be resolved so that lower courts would have guidance in deciding cases under this legislation.

Photo radar constitutional fighter Doug Stead is back before the BC Court of Appeal on Wednesday February 2nd, 2000, at 10:00 AM in the Vancouver court house. This three-justice hearing is to appeal a one-justice hearing that ruled Stead could not appeal his loss in BC Supreme Court. SENSE would encourage everyone to attend court to both show support for Stead and opposition to the unconstitutional photo radar legislation. Additional information including Stead's press release is on the Stead page.

SENSE has received much e-mail in response to the R. v. Paruk decision (see News for January 5, 2000) and individual experiences in court. While some people have had their tickets stayed, others have had no success at all. We hope that the following information will clarify the issues and provide a better roadmap as to what you can do. Again, these issues apply only to tickets for offences which occurred before May 6, 1999.

The following are suggestions only and not legal advice. Please consult a lawyer if you have any questions.

Some of the main elements that must be proved by Crown in a photo radar case are:

1. The accused is the owner of the vehicle.
2. The accused's vehicle was photographed speeding at a certain time and place.
3. That a "prescribed speed monitoring device" was used to gather the evidence. This is the crucial element in Paruk cases because section 83.1 (2) of the Motor Vehicle Act says that the owner of a vehicle is liable for a speeding offence "if evidence of the contravention was gathered through the use of a prescribed speed monitoring device." Therefore, if a prescribed device was not used, the owner cannot be convicted.

Evidence of all of these elements is contained in the certificates tendered at trial, but it's important to remember that the certificates are only prima facie evidence of the elements and not conclusive proof (prima facie: evidence which is good and sufficient unless contradicted by other evidence). Therefore, the accused can still lead evidence contrary to that contained in the certificates in the hope of raising a reasonable doubt on some essential point. In a Paruk situation, you have the certificate which says that the police officer in the van (the "Qualified Operator") used an "AutoPatrol® (Speed Camera: Model # PR 100)", a "prescribed speed monitoring device." Therefore, unless other evidence is presented, it will be accepted as proven that a prescribed device was used.

To use the Paruk defence, you must adduce "evidence to the contrary" which shows that a device other than that prescribed was used. The difficult part is that this evidence is solely within the knowledge and control of Crown. While the Paruk decision established that the particular device in that case was not properly prescribed in the Regulations, the court lacks the proof that the same model camera was used to photograph you. Of course, all the machines used in BC are labelled PR100NZ, but that still has to be proved by you in your case. Under the Orwellian photo radar laws, the certificate could say that black is white and that would have to be accepted as fact unless proven to be false.

If you are fighting a ticket and have not yet been to court, you could send a letter to the Crown requesting the "particulars." This is not a necessary step, as the issues can be raised when you appear in court, but it can be helpful to have a request in writing. Here is a sample letter:

Please send me all particulars of this case, including the following: Copies of any certificates upon which the Crown intends to rely. The qualified officer's "deployment sheet" and "deployment register" with reference to the time and place of the alleged offence. Any other documentary evidence in the possession of the Crown. In light of the Paruk decision, I would ask that you please provide me with a complete description of the model numbers from the transceiver, camera, and film magazine used in the alleged offence as they appeared at the time of the alleged offence. I understand that the transceiver is identified as Model PR-100NZ, the camera as Model TC-1000 TraffiCam, and the film magazine as a Model TC-1000M or Model TC-1000M35 Film Magazine. I would ask that this information be entered into evidence at court by an "admission of fact". Could you please send the above information at your very earliest convenience so that I may review it well prior to the hearing.

As a result of this letter, you will hopefully either have the evidence that you need by admission, or you will have an argument that the Crown has not given full disclosure. Addresses for Crown are available on our Going to Court page.

If you get into court with the police officer present, here are some possible questions to help establish that the machine used in your case is not the prescribed device:

• Ask the officer to read the description of the device from the "Certificate of Enforcement Officer Qualified Operator" that he/she completed and has been entered into evidence. It should be "AutoPatrol® (Speed Camera: Model # PR 100)".
   
• Ask the officer to read into evidence the first two lines from the base transceiver camera that the officer was using when your photograph was taken. They should be "AutoPatrol PR-100 Speed Camera System", "MODEL PR-100NZ". If the officer is unable to answer this question, you could ask for an adjournment so the officer can obtain the information and/or raise issues in your summation about the officers training, skills of observation, etc.
   
• Ask the officer if the PHRASE "AutoPatrol® (Speed Camera: Model # PR 100)" appears anywhere on the unit. Note that this is a YES/NO answer -- object to any other reply. The individual WORDS in another order are not the same as the PHRASE.
   
• Ask the officer if the PHRASE "Model # PR 100" appears anywhere on the unit. Note that this is a YES/NO answer -- object to any other reply. The individual WORDS are not the same as the PHRASE.

You should read into evidence the wording from the Motor Vehicle Act Regulation 41.01 which reads "AutoPatrol® (Speed Camera: Model # PR 100)". The Regulations should be contained in a light-green legislation booklet provided by Crown while you are before the court. Otherwise, you could obtain a copy from most libraries.

The officer will likely try to remedy the situation by stating that the machine used under the old regulations is the same as that used under the new regulations. The issue here is was the machine in use of the date of your ticket correctly prescribed by the Legislature? The Paruk decision suggests that it was not and, if so, the legislation does not support the laws which are being used to prosecute you.

In your summation, you should tie together the discrepancy of the regulation and the labelling of the machine and section 83.1 (2) of the Motor Vehicle Act says that the owner of a vehicle is liable for a speeding offence "if evidence of the contravention was gathered through the use of a prescribed speed monitoring device." The Legislature, in its wisdom, prescribed a device that does not have the same description as that used.

Please advise SENSE of your experiences in court so that we can supplement the information provided here. All submissions are treated as confidential.

An article (not available on-line) in a new magazine The Wealthy Boomer suggests that a recent Supreme Court of Canada ruling (65302 British Columbia Ltd. v. Canada) makes it permissible for businesses and self-employed people to deduct parking and speeding tickets and other fines or penalties if they are incurred in the process of earning an income. The following in an excerpt from the article:

If you're going to deduct a fine or penalty, the only thing you have to worry about, said [Supreme Court Justice] Iacobucci, is whether you incurred the fine trying to gain or produce income. It doesn't matter whether the conduct was "avoidable" or "contrary to public policy" -- if a fine or penalty was incurred during the course of conducting your business, you may write the cost off. There's nothing in the income tax statutes that says otherwise and, until Parliament puts something in, taxpayers are free to write off just about any business-linked fine or penalty.

As many British Columbia drivers can attest, the 600,000-plus speeding tickets issued in BC -- a whopping 75% of all tickets issued -- are far more often than not issued to people driving at safe and reasonable speeds over under posted speed limits. Finally, minor relief from a major tax! [Subscriptions to the The Wealthy Boomer are available through the web site or at 905-475-6400.]

Just in from the courts... if you are fighting a photo radar ticket for an offence which occurred before May 6, 1999, and plan to use the Paruk decision (see News for January 3, 2000) to get the charges thrown out, here are some tips which might help you out...

• The following are suggestions only and not legal advice. Please consult a lawyer if you have any questions.
• Object to the introduction of the "Certificate of Enforcement Officer Qualified Operator" in evidence. This form contains a reference to the "AutoPatrol® (Speed Camera: Model # PR 100)", the device which the legislature has deemed to be capable of taking accurate photos of speeding vehicles. It has been shown that the actual cameras in use are the Model PR-100NZ. The defect renders the evidence on the forms inadmissible. (The R. v. Paruk ruling explains the issues.) At this time, objecting may only consume time unnecessarily: the form likely meets requirements for admissibility and you can later produce evidence which contradicts it without making an objection.
• If the Crown wants an adjournment to bring in the photo radar police officer to testify, you can object, citing "extreme prejudice". Examples of prejudice include financial hardship, difficulty of travel or time off work, school, other obligations that you might have which interfere with your ability to return to the courts at a later date (e.g. care of a child).
• If the Crown continues to object, you can add that they are violating the "doctrine of laches". Essentially, the Crown is negligent because they know (or ought to have known) about the Paruk decision and should have been prepared with the officer or whatever they needed on the date of your trial.

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The BC photo radar and red light camera police, the Integrated Traffic Camera Unit, have just launched their new web site.

As BCTV is reporting tonight, a BC Supreme Court decision has found that the photo radar cameras were incorrectly prescribed in the Motor Vehicle Act Regulations (see News for January 8, 1999). This affects all tickets for offences which occurred before May 6, 1999 -- the date the government fixed the Regulations. The ruling R. v. Paruk, should result in all unconvicted tickets issued prior to that date being thrown out.

The government may decide to continue prosecuting these tickets. If you end up in court and raise the PR100 issue but the Crown then wants an adjournment to call the officer, you could object to the adjournment and cite the fact that the Crown had prior knowledge of this defect and should have had the officer in court on this date (after all, they wasted your time for their convenience!) Also, the Crown should be required to produce only the officer that was in the van at the time of the offence, not any photo radar officer (it would be hearsay evidence).

Regarding photo radar tickets for offences before May 6, 1999:

• If you have recently been personally served with a ticket: ensure that you file a dispute within the 30 day window from service so that you don't become convicted.
• If you got a ticket in the mail, but did not acknowledge it: you might get served and would then file a dispute (if and only if served).
• If you were personally served a ticket and more than 30 days have elapsed since the date of service: you have probably been convicted.
• If you filed a dispute but failed to appear in court: you have probably been convicted.
• If you fought the ticket and lost: you have about 30 days to appeal the conviction from the date of conviction. And, you can only appeal on this issue if you raised this issue (and lost) in the original trial. Seek legal advice if you have additional questions.

Additional detailed information on filing disputes is contained in our page "Dealing with a Ticket". (Note: you can apply for extensions to some of the above windows for filing disputes or missed court dates -- see the "Dealing with a Ticket" page).

Rev: 2001.01.15