Going to court...
|IMPORTANT NOTICE: THESE ARE SUGGESTIONS ONLY AND NOT LEGAL OPINION - IF YOU REQUIRE LEGAL ADVICE, PLEASE CONSULT A LAWYER. SENSE IS A NOT-FOR-PROFIT SOCIETY AND DOES NOT ASSUME ANY LIABILITY WHATSOEVER.|
|What grounds are there to fight a photo radar ticket?|
This is the most important information on this page:
Photo radar has a legislated presumption of accuracy -- the justice must assume that the equipment is functioning accurately unless you provide evidence to the contrary (that is: contrary to the evidence of the Crown). This evidence must be credible -- that credibility will likely rest upon your credibility. The evidence must be founded on something concrete, and not be fanciful or mere belief. And, there must be more than a possibility that something went wrong -- the alleged event/error must be plausible (1 in a million won't work, 1 in 10 might). General attacks on the equipment do not work.
Unless you are very, very lucky, you will not win by using the following types of statements or defences in court:
- "I was travelling at a safe and reasonable speed with the rest of the traffic."
- "The speed limit is incorrect."
- "I watch my speedometer carefully and observe the speed limit and never exceed the limit (but I can't specifically recall the speed I was doing when the photograph was taken)."
- "I am a careful driver and have never had a speeding ticket/accident in my life."
- "Photo radar is nothing more than a tax grab!"
- "My [uncalibrated] speedometer is more accurate than that $100,000 radar system!"
- "It is not my fault, my speedometer was inaccurate."
- "Photo radar surveillance is an invasion of my privacy."
- "Photo radar is broken and I've got the newspaper clippings to prove it!"
- "The photo radar van was illegally parked on a sidewalk, private property, parking lot..."
- "Other drivers were speeding too and they didn't get tickets!"/"Drivers travelling less than the tolerance but over the limit didn't get tickets!" -- the Crown has absolute discretion over whom to charge.
- If there are vehicles coming towards the camera (i.e. on the other side of the road) arguing that these vehicles could have affected the speed reported will likely not succeed unless you can produce expert testimony (e.g. traffic-radar police, engineers, etc.).
- The government/police have stated that speed tolerances will be 11 to 19 km/h. If you get a ticket, for example, travelling 61 km/h in a 50 zone, and then argue that because the cameras have a tolerance (error) of 1 km/h, you should not get a ticket... this will not work -- you are still speeding!
- If you were charged under section 146 (1), there is no requirement that signs be posted -- these are the general speed limits that are to be obeyed when no other signs are present.
- Describing the Colour of the vehicle as for example, yellow instead of gold, or black instead of grey, or describing the Type of car as a hatch-back instead of coupe are not issues to challenge a ticket on, but merely represent the limited and fixed categories that ICBC computers allow a vehicle to be registered under.
- Many photographs appear very dark when, in fact, they were taken during normal daylight hours. This allegedly! results from the photograph processors darkening the exposure in order to enhance the legibility of the licence plate. If in doubt, you could ask for a normally printed photograph to be produced, or you could argue that the bad photograph impairs your right to full answer and defence.
- The enforcement officer ("police officer") operating the photo radar van (whose number is on the photograph) will not be the same person as the enforcement officer (or "charging" officer) who signed the ticket you received. This is not an issue.
From our observations in court, the most successful defences generally fall into the following categories:
- Defence of Necessity
- "circumstances of imminent risk where the action was taken to avoid a direct and immediate peril."
- For example: medical emergency, avoiding an impending collision, etc.
- The accused has to establish three elements: imminent peril, no reasonable legal alternative, and proportionality.
Defence of Due Diligence
- In lending the vehicle to another person, the owner "exercised all reasonable care by establishing a proper system to prevent commission of the offence."
- See our page "preventing tickets" for detailed information.
Vehicle was stolen / driver not entrusted
- Under section 83.1(3)(a) "the person who was, at the time of the contravention, in possession of the motor vehicle was not entrusted by the owner with possession"
- If your car was stolen or used without your express or implied consent.
- If there is implied consent, this will probably not work (e.g. a pattern of allowing the driver to use your car without express consent).
- Section 11(b) of the Charter of Rights and Freedoms provides that "Any person charged with an offence has the right [...] to be tried within a reasonable time."
- There are not specific time frames, but around 16 months from the filing of the dispute to the first hearing seems to be frequently used in BC traffic cases. Delays caused by the accused (e.g. adjournments) count against you. Delays of the system and failure to serve you notice within a reasonable time period count in your favour. See under the heading "Constitutional Issues" below.
Evidence to the Contrary -- you must raise a reasonable doubt in the mind of the justice, through credible evidence, not mere speculation.
- For example: a specific recollection that at the time of the alleged offence, the accused was travelling at or below the posted speed limit (all the highlighted elements are essential).
- "...generally involves the defendant asking the trier of fact to take a view of some component(s) of the photographic evidence found in the captured image which contradict the evidence in the data line, or certificates. It may also take the form of direct evidence to establish a discrepancy relating to date, time, or location of the alleged violation."
- "circumstantial evidence must not only be consistent with proving the accused has committed the offence, but must also not be inconsistent with any other rational explanation." (Wild v. The Queen (1970) 4 CCC 40 (SCC)).
- Must be based upon something concrete, not mere belief or something fanciful. For example:
- "I know that I was travelling at 48 km/h when I went through the camera." -- strong.
- "I believe that I was travelling at about 48 km/h when I went through the camera." -- weak.
- For example: a defect in the certificates:
- Licence plate in photograph does not match licence plate charged in certificate.
- Discrepancies between the three certificates and/or the photograph may break the link with the alleged registered owner of the speeding vehicle.
- For example: a defect in the photograph:
- Crown has failed to establish identity beyond a reasonable doubt because the numbers/letters on the license plate in the photograph are indistinct or subject to alternative interpretation.
- The photograph shows other vehicles proceeding in the same direction as the alleged speeding vehicle, thereby raising a doubt as to which vehicle produced the speed reading.
- "The relative darkness and/or poor quality of the photograph may create a reasonable doubt that the identifiable vehicle in the captured image is the actual source of the speed reading. A person may actually lose the opportunity to observe other visual cues such as weather, location, driver or number of occupants in the vehicle, etc. This may impair their ability to make full answer and defence to the charge."
Registered Owner not Owner on date of offence
- Under section 83.1(5)(b) "the registered owner is not the owner"
- If ICBC records incorrectly identify you as the registered owner.
Listed below are a number of possible approaches to challenging a photo radar ticket. SENSE will be testing a number of defences (including several not listed for strategic reasons). However, without the evidence to the contrary, you'll be wasting everyone's time by simply fishing for a defence. If you got what you are asking for, could you interpret it? Would you need expensive expert witnesses to make your case?
People have won simply by credibly stating that at the stated time of the alleged offence, they were driving the vehicle elsewhere, but not anywhere near the location of the photo radar. Was the clock wrong on the photo radar van? Perhaps. Others have won because they credibly recalled to the court that they saw the van before passing it and ensured that they were travelling at the posted speed limit (and their speedometer was reliable). Did another vehicle or some malfunction cause the picture to be taken? Perhaps.
- Prior to trial, you have asked for full disclosure of all evidence against you (the 'particulars') and the crown fails to provide it (see R. v. Stinchcombe (1991) 3 S.C.R. 326, 68 C.C.C. (3d) 1 (Supreme Court of Canada)). Ask for:
- the Certificate of Enforcement Officer: Qualified Operator.
- the Certificate of Enforcement Officer: Photographic Evidence.
- the Vehicle Ownership certificate.
- the Certificate or Affidavit of Service (if you were served the ticket).
- At the first trial date, you request leave to cross-examine a person who has caused a charge to be brought against you, and they fail to appear at the second hearing date (make sure you have valid questions):
- The enforcement (police) officer in the van at the time of the offence.
- The enforcement (charging) officer who issued the ticket.
- The process server who served the violation ticket upon you (if applicable).
- The Commissioner for Receiving Oaths or Justice of the Peace to whom your Affidavit of Service was sworn.
- Others who may have had custody of the evidence (photograph developers, etc.)
- Administrative The following issues can be raised in court, but you will need to satisfy the court that your defence requires their production (this is not always an easy task):
- The operators manual for the photo radar unit.
- Instructions/manuals used in the back-end processing -- the "Verification Rules Handbook".
- Calibration and maintenance records of the radar/camera unit.
- Training records of the police officer operating the camera. What scores did he/she get?
- Training records of the enforcement officer(s)/ticket processors. What scores did he/she/they get?
- The negative so that it can be examined by your expert witness for tampering!
- Technical Questions
- What is the operator's experience with radar (both conventional and photo radar)?
- Is the police officer familiar with the faults of radar? (ghosting, shadowing, etc.)
- Because the equipment is entirely computer driven, does he/she understand the computer programming used to take the photos?
- Was the van properly aligned (at 22.5°, etc.) throughout the entire session?
- Has the operator ever observed the equipment produce faulty readings?
- Was there any transient interference which could have given erroneous results between tuning sessions?
- Does the operator remember your photo being taken?
- Did the operator make a visual estimate of your speed? Did it correspond with the equipment?
- Did other vehicles create the speed reading?
- Was the reading caused by reflection, ghosting, etc.?
- Procedural Questions
- Continuity of evidence -- who has had possession of the photographs and negatives, were they altered?
- Did you exercise "reasonable care" in lending out your vehicle to another driver?
- Was the Affidavit of Service sworn and affirmed under oath?
- Constitutional Issues
- see the Canadian Charter Of Rights And Freedoms
- Note: if you intend to make a Constitutional argument, you need to file a "Notice of Constitutional Question" under the Constitutional Question Act, at least 14 days before your hearing. If you fail to do this, you can usually get an adjournment to meet the process.
- There was a long delay between the date of the offence and the date you get in court, or because everyone is disputing their tickets, the courts are clogged and cannot hear your challenge for months -- the charges may be dropped if you can demonstrate prejudice. This may need to include extreme stress, disruption of family life, loss of witnesses, loss of evidence, loss of memory, etc. (see R. v. Morin,  1 S.C.R. 771, 71 C.C.C. (3d) 1, and more importantly R. v. Fagan (1998), 115 B.C.A.C. 106, 189 W.A.C. 106).
- Inequality -- are you denied rights because you received your ticket weeks or months after the alleged offence? Note: if you received your ticket within 25 days of the offence, you will likely not have an issue (see current case law in R. v. Hedayat below) -- however, after 25 days, you might be able to make a case!
- Inequality -- are tickets issued to all vehicles photographed, even those from outside the province?
- Inequality -- is the driver who gets a conventional ticket more equal than you?
- Photo radar violates your right to face and cross-examine your accuser (the machine).
- Other Issues
- Although speeding is an absolute liability offence [i.e. if you exceed the limit for any reason, you are guilty], the defence of necessity is available in some circumstances -- see R. v. Morris 5 M.V.R. (3d) 110 (B.C.S.C.).
- There was not a speed limit sign erected for the charged offence at the time of the offence -- or as the case may be for the specific section charged (some charges don't require signs).
- Did the officer test the equipment precisely as directed by the manufacturer? Prior to and after the session?
- Because of recent changes in the courthouses, some tickets might be issued with invalid addresses for you to personally deliver your dispute to. If the address on the ticket (the Courthouse in most cases) is not valid (e.g. the office has moved) the ticket is invalid under section 15(1)(b) of the Offence Act. A relevant case on this issue is Jamie Dawn Walker v. Her Majesty the Queen (December 3, 1991), unreported?, (B.C. Supreme Court).
Before you get to court, you might want to check out some of these resources:
If you plan to challenge the ticket with some specific defences, you may need to be familiar with the case law.
|Before going to court...|
Before going to court, request that the Crown provide to you copies of the particulars (the certificates and any other evidence or case law which will be used against you in your case). Review the particulars carefully before going to court -- check for mistakes, transpositions, and that they were certified. If you find an error, do not inform the Crown, but object to the forms only when introduced in the court.
|moved||Photo Radar Clerk
|Burnaby, Maple Ridge,
Mission, Port Coquitlam
|6263 Deer Lake Avenue
Burnaby, BC V5G 3Z8
|Photo Radar Clerk
|Surrey, Abbotsford, Delta,
Chilliwack, Hope, Langley,
|14340 57th Avenue
Surrey, BC V3X 1B2
|Photo Radar Clerk
|Vancouver Island||137 850 Burdett Ave
Victoria, BC V8W 1B4
|Photo Radar Clerk
|Interior||401 - 455 Columbia Street
Kamloops, BC V2C 6K4
|Photo Radar Clerk
|Northern||462 - 1011 4th Avenue
Prince George, BC V2L 3H9
|Photo Radar Clerk
- If you plan to challenge the ticket on constitutional grounds, you are required to submit notice under the Constitutional Question Act. Crown Counsel has an obligation to assist you in this process.
- Read the case R. v. Bosworth. The Justice has provided very useful commentary on what does and does not work and how photo radar trials differ from conventional traffic trials.
- Observe trials prior to your date in court. Contact the Court Registry and ask when photo radar trials are scheduled. They are usually scheduled in groups and the public is free to attend. If you can spare an hour or two, you can learn a great deal and you will be more comfortable when you appear for your trial.
|In the court...|
If you plan to challenge any of the information contained in the certificates, you might want to request that the presence of the police officer, enforcement officer, photograph processor, etc. You have the right to cross examine the officer under MVA section 83.2 (4), but you will be challenged by the Crown to produce a valid reason why the officer should be called to court. Generally, you should be asking a question which is not answered in the certificates, raise a "live issue", or provide some "evidence to the contrary". If you succeed, another court date will be set for the attendance of the officer, etc. Some examples of questions are:
However, the following general attacks will usually not work:
- (Except for section 146(1) tickets) Were the speed limit signs clear and unobstructed? What distance were the signs prior to the offence being detected? (see R. v. Etherington)
- Does the officer recall your vehicle, did he/she make a visual estimation of your speed, does this estimation agree with the speed registered by the camera?
- I've read in the newspaper that these things break down a lot.
- I want to make sure the officer tested the machine.
A few words to the wise:
What to look for...
- You are not required to give evidence on your behalf. However, once you are sworn in, the crown can ask you questions, and you are required to answer truthfully and to the best of your knowledge.
- You are charged as the owner of a vehicle which was photographed speeding, not the driver of the vehicle. Under the photo radar law, it matters little that you were not driving or can't remember the offence.
- You are charged with exceeding the speed limit (not, for example, driving 64 km/h in a 50 km/h zone). If you admit to exceeding the speed limit, even by 1 km/h (for example, saying "I could not have been doing 64 because I never exceed 58 in the city"), you have just lost because you have admitted to committing the offence! Your best defence in this particular case is to not be sworn in to give evidence.
- If you were driving, familiarize yourself with the location of the alleged offence and review in your mind what your schedule was that day. Be able to speak with clarity and conviction.
- You are being prosecuted by crown counsel -- not a police officer who is an expert in traffic enforcement/radar. Counsel cannot give evidence that is not first-hand. Object if the crown attempts to add any evidence to the case that he/she does not have first-hand/expert knowledge about and/or if counsel is not sworn in.
- If you have a poor driving record, and the police officer/prosecutor asks you if what he has in his/her hand is a copy of your driving record -- you are not required to agree/admit that this is your record. If you admit that it is yours, the officer may use it to increase your fine, suspend your licence, send you to driving school, etc. Remember that in photo radar trials, the prosecutor will not have your record unless you are charged as a nominated driver.
- Are all the certificates certified, as required?
- Are there any errors on the certificates?
- Were you charged under the correct speeding section?
- Have the requirements of the offence been proven? (see the specific wording)
- Was the location described with ambiguous terms (e.g. "50 m." is that metres, minutes, or miles?) (see R. v. Etherington)
How does the photo radar law work?In British Columbia, photo radar tickets are issued under the Motor Vehicle Act, and disputes of traffic tickets are handled under the Offence Act. The Motor Vehicle Act Regulations describe requirements generally of the motor vehicle such as: turn signal specifications, minimum and maximum light bulb wattage, size of highway signs, etc.
Note: as of April 21, 1997, the statutes of British Columbia have been consolidated. This means that the section numbers have changed. For instance, speeding against a highway sign was Section 151(3), but is now Section 146(3). You can cross-reference sections using the Table of Concordance if required.
In order to bring in photo radar, the Motor Vehicle Act and Offence Act have been substantially amended through Bills introduced in the Provincial Legislature since early 1995.
SENSE has hyper-linked the specific photo radar legislation for your review, and included some other relevant sections:We have attempted to accurately list all the current photo radar legislation, but amendments can be enacted at any time..
Motor Vehicle Act - certificates and owner's liability for tickets (sections 82-83.2 [was 75, 76, 76.1, 76.2]) Motor Vehicle Act - speeding offences (sections 138-148 [was 143-5, 151, 152, 152.1]) Offence Act - disputing tickets (sections 14-16 [was 14, 14.1, 14.2])
Printed copies of the Motor Vehicle Act, Motor Vehicle Act Regulations, and Offence Act are available in most library reference sections, or for purchase through the offices of the Queens Printer (currently about $9.10, $16.50, and $8.15 respectively plus GST).
What is the law on obscuring my licence plate?This section has been moved here.
What causes a licence to be suspended?SENSE occasionally receives enquiries from drivers who are threatened with licence suspension by the Superintendent of Motor Vehicles. This problem particularly affects drivers who spent a lot of time on the road (in other words, high "exposure" to tickets). Typically, these drivers have full Roadstar discounts and have not had an accident for years, if ever. Good drivers who have a bad couple of years can quickly find themselves with a threatening letter, and also find themselves caught between bureaucracies more intent on appearing to help traffic safety than actually doing so.
The criteria provided to SENSE is:If you feel that you are being treated unreasonably, you can appeal to the Superintendent and we would suggest that you get your MLA involved. SENSE can't do much to directly assist you, but we are interested in the details if you are treated unreasonably.
9 points in 2 years: warning letter 15 points in 2 years: 6 month probation
- while on probation:
- 1 offence: 2 months prohibition
- 2 offences: ~4 months prohibition