R. v. Bosworth
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Michael J. Connaghan
Counsel for the Defence
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:
(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.
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.
(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.
(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.
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.
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.
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:
(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,  111 C.C.C. (3d) 403 (S.C.C.) and "Statute of Liberty" (The),  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:
(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
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.
Crown asked the court to distinguish two cases from defences Book of Authorities dealing with photographic evidence (Draper v. Jacklyn et. al.,  9 D.L.R. (3d) 264 (S.C.C.); BENSON & HEDGES (CANADA) INC. v. Ross . 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,  68 C.C.C. (3d) 190 (ALTA C.A.; R. v. Sutherland,  142 A.R., 381 (ALTA Prov Ct.); R. v. Lounsbury,  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  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.
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)
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:
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.
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:
(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.
(b) that the ongoing use of photo radar technology is monitored to detect
and react to potential problems. (For example, see R. v. Speller,
 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.
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:
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."
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.
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.
Cory, J. states at p. 414  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;
 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.
 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.
 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.
 The jury or trial judge sitting alone must be able to review the videotape during their deliberations
 ...... 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......"
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:
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
(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.
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:
"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:
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:
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
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)).
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.
b) may be subject to a judicial view,
c) may in some cases be considered as 'evidence to the contrary'.