All photo radar or red light tickets begin as charges against the owner, not the driver. The owner's past driving record is not produced and the Crown does not ask for increased fines or other penalties.
Mailed photo radar or red light tickets are essentially an invitation to pay. By doing nothing, you will not be deemed guilty or lose your ability to fight or pay the ticket until after it has been personally served. If you do nothing and don't get served, you cannot be convicted ("deemed guilty") and therefore cannot be forced to pay the ticket. Up to 25% of all photo radar tickets are never successfully served.
If, after 45 days from the Date Violation Ticket Completed, you have done nothing, the government will attempt to serve the ticket on the registered owner.
By waiting to be served, you do not lose any rights nor do you incur any additional costs such as higher fines, penalty points, interest charges, etc.
See below for important information on "What will happen if I don't get served?" and "How are tickets served?"
| What will happen if I don't get served? |
First, if you do nothing, you currently can't be deemed guilty until you are served.
If you are not successfully served, you will possibly be informed when you renew you insurance or drivers licence, but, you should not be denied from doing either because you have not had the opportunity to challenge the charge against you.
The latest copy (4/97) of the Traffic Safety Initiative: Quick Reference Guide, used by Motor Vehicle Branch customer service agents indicates that "Refuse to Issue" status becomes effective only when 30 days have elapsed from date of service, or once
a partial payment has been made. It also states on page 26 of the Photo Radar Program section:
"For PRP [photo radar program] tickets with SERVIP (service in progress) or NOSERV (not served) status, include the ticket in the payment plan unless the client indicates an intention to dispute the ticket when it is served." ... "... ensure that the client's address is current to assist service..."
In other words, if you attempt to renew your licence/insurance and are asked to pay the ticket at that time, you should indicate that you wish to dispute the ticket. That will require them to either discard the ticket (likely) or try and serve the ticket again (unlikely) -- if they couldn't find you at your address the first time, they probably won't get it right the second time! At this point, it is unlikely that you will ever need to go to court. The alleged offence will be so old that the crown would probably not pursue the charge.
Some people have indicated that ICBC/MVB clerks are refusing to issue licences/insurance for people with unserved and unacknowledged photo radar tickets. You should remind them that under Section 26(1)(c)(ii) or 26(3)(d) of the Motor Vehicle Act, you have not been convicted and they do not have the authority to refuse to issue:
26 (1) The Insurance Corporation of British Columbia may, without a hearing, refuse to issue a driver's licence to a person who [...]
(c) is indebted to the government because of his or her failure to pay a fine imposed as a result of a conviction under [...]
(ii) the Motor Vehicle Act,
26 (3) The Insurance Corporation of British Columbia or the superintendent may refuse to exercise the authority given under this Act to the corporation or superintendent, as the case may be, to issue
(a) any permit to a person, and
(b) a licence and corresponding number plates for a motor vehicle or trailer or both owned by a person
who is indebted to the government because of his or her failure to pay a fine imposed as a result of a conviction under
(d) an enactment referred to in subsection (1) (c) (ii) to (viii).
Also, the longer it takes for them to serve you and get you in court, the better your legal position. Courts impose standards upon the Crown for dealing with defendants in a timely matter. A precise time limit has not been determined for BC photo radar or red light tickets, yet!
Last time we checked, Canadians had the right to challenge a charge against them. If you try to renew your drivers licence or insurance and are denied from doing so because of a ticket you were never served or had the opportunity to challenge, we want to know! Reports indicate that un-served owners are not being denied the right to renew their licence or insurance -- if they indicate a desire to dispute the ticket.
When a mailed violation ticket has been identified as 'ignored' (45 days after the "Date Violation Ticket Completed", or if you dispute a mailed ticket and fail to appear at the hearing), the following steps will occur:
- A new copy of the violation ticket will be delivered to the relevant regional process server.
- Service will be attempted under the following conditions:
- The process servers normally have only 28 days from receipt of the tickets to successfully serve them. However, they can ask for an extension if they believe service will ultimately be successful.
- Service is to be attempted a minimum of 3 times. There is no maximum number of attempts.
- Servers will try to serve at any reasonable time. They may appear anytime on evenings or weekends.
- Process servers are advised "that this is not an exercise in skip tracing." (Skip-tracing refers to tracking down an individual who is hard to locate or has moved.) Tickets with invalid addresses are returned to the government and may be sent again for a second service period if the government can provide a better address.
- Substitutional service is not permitted under any circumstances. (Substitutional service refers to leaving a ticket with another party, e.g. your spouse, landlord, child, parent, etc.)
- Process serving tactics:
- We are receiving more and more reports of people calling the residence and asking if the driver is home and then a server shows up at the door almost immediately afterwards.
- Another technique is to call the residence acting as a courier company and citing that they have a "package" to deliver. They avoid discussing the nature of the package, citing only its reference number which is the photo radar ticket serial number. They insist on setting up a time to meet you at your home to deliver the "package".
- Some process servers may leave a note on your door (see below) which asks you to contact them to arrange service. You DO NOT need to assist them and this is merely an intimidation tactic to assist them in collecting their fee for service. You cannot lawfully be prevented from renewing your licence or insurance due to an unserved (and otherwise unacknowledged) ticket.
- See What will happen if I don't get served?
If the government is slow in serving tickets, this will open up another legal defense for challenging tickets. Service does not commence immediately after the end of the initial 45 days, but usually some 2 to 12 weeks after that. Typically, you can expect service attempts to begin from 2 1/4 to 5 months after the date the offence occurred, and once started, last for about one month.
Under current BC laws and the Charter or Rights and Freedoms, tickets must be served on the registered owner because the judicial system must be certain that the party charged with the offence is aware of and has had an opportunity to challenge that charge.
The process servers are paid only for successfully served tickets. There is no cost to you or the taxpayer if the ticket is not served.
| Remedies for improper service... |
For improperly served tickets, these are the options:
- Ignore the issue of improper service and deal with the ticket as a properly served person or corporation.
- Wait to be deemed convicted (30 days) and then file a Summary Conviction Appeal in BC Supreme Court -- this requires the filing of various legal documents, and may require the assistance of a lawyer.
- File written complaints with the government (Attorney General) and ICBC (who handle the process serving contracts).
- Complain to the appropriate process serving agency.
| Do photo radar or red light tickets appear on my driving record? |
Photo radar tickets have a misleading statement above or below the photographic image:
"Payment of this fine will result in the owner being deemed to have pleaded guilty to the offense described on this violation ticket and the offense will be added to the owner's record as a conviction."
THIS STATEMENT IS MISLEADING: Violation tickets issued to the owner go on the meaningless "Owner's Record" which is not the same as the owner's "Driving Record". It is only the Driving Record which is used to suspend licences.
SENSE believes that the tickets make this statement only to intimidate registered owners into making poor judgements when dealing with the tickets, thus increasing penalty point revenue for ICBC! The Owner's Record is apparently used only as a financial record-keeping database.
In an attempt to clarify this unnecessarily misleading information, SENSE made verbal enquiries and received the following response from ICBC in a written letter dated February 17, 1997: "[SENSE has] suggested that the wording on the Registered Owner's Offence Image is misleading and that the public interprets the owner's record as the driving record. We are satisfied with the current wording. As noted on the brochure that is mailed with all violation tickets, a 1-800 information line has been set up to answer all such concerns or questions." SENSE remains convinced that there is no valid reason to include this statement, and that most people would be unaware to even ask such a question.
| Do I get penalty points for photo radar or red light tickets? |
At this time, no penalty points are applied. You will not get points even if you admit in court to being the driver.
For your information: the legislation is in place (section 83.1 (7)) to add points to all tickets at any time in the future. The government has indicated that "this section of the Motor Vehicle Amendment Act will not be in force until an ongoing review of the program is complete." Adding points to all tickets will significantly increase penalty point revenue for ICBC.
| What if my car was stolen at the time of the ticket? |
Under Section 83.1 (3) (a) of the Motor Vehicle Act, an owner is not liable for photo radar tickets if the owner establishes that "the person who was, at the time of the contravention, in possession of the motor vehicle was not entrusted by the owner with possession" -- in other words if the car was stolen. Contact the photo radar info line to discuss the issue and (hopefully) get the ticket cancelled.
Note: a past history of entrusting a person with your vehicle might prevent you from raising this defence even if this person borrowed your car without your permission -- you might want to consult with a lawyer.
| Are employees responsible for tickets? |
It would appear that the Employment Standards Act (ESA) prevents an employer from deducting from employee wages any amounts not specifically provided for under the ESA. It would also appear an agreement about traffic tickets between the employer and employee would not override the ESA, and therefore have no effect.
In a BCTV interview on July 31, 1996, Minister of Employment Moe Sihota said "no it's not fair -- if the employee was driving the vehicle then the employee should be paying the ticket. And if we need to make a change to the Employment Standards Act to solve this problem for small business -- we will." At this time, SENSE is not aware of any new legislation or changes to the ESA Regulations.
Employers may be able to protect themselves from future tickets by enacting a specific written policy against speeding and requiring their employees acknowledge and sign the policy on a periodic (e.g. annual or semi-annual) basis.
| Am I liable for tickets received while I rent/lease a vehicle? |
Probably... most rental and lease agreements contain a clause that you are liable. If you rent a vehicle, the ticket will likely be charged to your credit card. Lessors will deal with lessees under the terms of the contact.
Under section 83.1 (1) of the Motor Vehicle Act the "owner" includes:
(a) a person in possession of a motor vehicle under a contract by which the person may become the owner on full compliance with the contract, and in whose name alone the motor vehicle is registered under this Act,
(b) a person who rents or leases a motor vehicle from another person, ...
If a ticket has been paid in your name, you can file an Affidavit under section 16 (3) of the Offence Act stating that "through no fault of my own, I did not have an opportunity to dispute the allegation or fine..." This form is likely available at provincial court registries.
| The vehicle is owned by multiple people... |
The ticket will be issued in the name of one of the owners. The BC Supreme Court in R. v. Smith (Roy) ruled that the Crown has discretion over whom to charge -- usually the first named owner.
Under the previous legislation, if you filed a dispute on a mailed (but not yet served) ticket and missed the court hearing, you were not deemed guilty -- HOWEVER, this has now changed. If a dispute is filed on a mailed ticket and then no person appears at the hearing, the owner is automatically deemed guilty and the ticket fine becomes payable.
