The BC government is collecting millions of dollars through photo radar tickets, but are the cameras accurate?
By Tom Zytaruk, © Surrey Now Newspaper, Wednesday, April 22, 1998, p.11.
In the time it took to write this story, our office fax machine broke down and my computer seized up twice.
Technology is helpful, but as most of us know, it's not infallible. Movies have been made about computer glitches
that start World War III, and who among us has not felt the urge to hurl their personal computer into oblivion?
The truth is that machines, handy though they are, simply aren't perfect.
But try telling that to the B.C. government, and the Crown lawyer in charge of prosecuting photo radar traffic offences in this province.
Indeed, those controversial cameras siphoning millions of dollars out of taxpayers' pockets are "presumed accurate" in B.C. courts - which makes defending yourself against a ticket a particularly difficult task.
Little is it known that Section 83.1 of B.C.'s Motor Vehicle Act gives legal sanction to the cameras, which translates into a presumption of accuracy as far as the court's concerned. Of course, it's pretty hard to cross-examine a machine. But if you're fighting a ticket in court and expect an automatic opportunity to cross-examine the camera's operator, think again.
The officers don't have to be in court. That's because the legislation allows the Crown to submit, as evidence against you, a certificate signed by the officer testifying that the device was working properly at the time of the alleged offence.
The burden, then, is on the defendant to pursuade the judge there is a good "live" reason specific to your case, to call the officer in to testify. General attacks against the technology don't count.
Essentially, you have to remember going through the camera, and what you thought was specifically wrong with the process: like, for example, you noticed the camera pointing in the opposite direction when you passed by, etc.
If that seems unreasonable - given that your ticket arrived in the mail a month after the alleged offence, and you weren't even aware of the situation until you received the ticket - don't expect things to change too soon.
That's because the B.C. government has some lofty allies. The Supreme Court of Canada has supported the "legislative intent" of presumed accuracy, and evidence by certificate, to reduce the burden of evidence on the Crown, in cases like Regina v. Moreau and Regina v. Crosthwait.
Nevertheless, in spite of what the courts say, if you find the idea of government enshrining the presumed accuracy of any machine into legislation more than a little uncomfortable, you're not alone.
Renowned defence lawyer John Conroy isn't keen on the concept.
"I don't like that at all," he said.
He recalled hearing a superior court judge once say, "An orange is an orange and an apple is an apple, and you can't legislate one into another."
No matter what your intention, two plus two still equals four.
What's particularly strange about the B.C. experience, is that while our government and courts presume the cameras to be accurate, we share a border with a state that ruled the opposite.
The same American Traffic Systems photo radar cameras enjoying "presumption of accuracy" in B.C. courts were tossed out of Alaska in October 1996, after three U.S. magistrates in Anchorage found the cameras "...insufficient to sustain a conviction beyond a reasonable doubt..."
Michael Cain, director of research for the anti-photo radar group SENSE, or Safety by Education Not Speed Enforcement, says British Columbians should take note of The Municipality of Anchorage v. Baxley et. al., upheld on appeal.
"It's time for British Columbians to wake up and start asking their government these questions," Cain said. "Why are we using this equipment when it's not acceptable in another 'enlightened' state?"
Probably because Canadians, he notes, have been "too passive in this type of interference," whereas "Americans really put their foot down."
As for presuming a machine accurate, Cain charges that B.C.'s legislators have "gone too far." Enacting "bad" laws, he said, is "characteristic of the NDP" to serve short-term purposes.
"It's a scary fact that they have the power to enact this 'all-powerful' legislation, and essentially subvert the process of proving a device accurate," he said.
Former NDP Attorney General Alex Macdonald, who served with the Dave Barrett government, accepts the presumption of mechanical accuracy.
"It's not perfect justice," he said," but where do you find that?"
It's a matter of social necessity, he argues.
There's a need for order on the roads, he says, and photo radar saves lives. Chances of "injustice" being served on drivers, he adds, are "relatively remote."
Not likely, Cain counters.
For starters, he says, the cameras' manufacturer has a history of not releasing technical information, ostensibly for copyright and competitive reasons. A defendant can view the camera's manual, Cain acknowledges, but only in the presence of a police officer. "You can't even have a privileged conversation with your lawyer," he noted.
Dr. Paul Russell, Philosophy of Law professor at UBC, calls the concept of presuming mechanical accuracy "odd."
Rather than insulating itself against challenge, Russell said, the provincial government should bear the burden of responsibility to demonstrate, with scientific evidence, that the cameras are reliable. "The burden of justification," he said, "is on their side."
The best way to approach this challenge, Russell suggests, is to have a body independent of government, police and the manufacturer - and without vested interest - to test the cameras in B.C.
This, he said, is "completely reasonable." An independent body should be granted full access to the inner workings of the cameras, to test their accuracy.
"Otherwise that presumption (of mechanical accuracy)," he argues, "is completely arbitrary."
Nils Jensen, a Victoria-based Crown Counsel, is in charge of prosecuting in the photo radar program.
Asked if an independent body has tested the cameras in B.C., Jensen replied that police -- "whom we take to be independent from government" -- tested the cameras for accuracy.
Asked why B.C. presumes as accurate the same cameras Alaska has bounced off its roads, Jensen denounced the Anchorage decision as an "outrage," a "bizarre ruling" and an "anomaly."
"That (decision) would have made no sense in Canadian jurisprudence," he said.
Canadian law, he explained, doesn't require that a human must intervene to confirm the accuracy of a machine in each and every infraction.
"That's their system," he said of U.S. courts. The Alaska decision, Jensen charged, was spawned by a "local political agenda" in which the commissioners conducted their own investigation without telling the litigants.
"The state prosecutor felt there was clear bias," he said.
Meanwhile, here in B.C., while more and more drivers are fighting their tickets in court, it doesn't seem like the battle over photo radar in B.C. will be over any time soon.
Still, in spite of the odds stacked in the camera's favor, Cain likes to think B.C.'s roads will one day be free of the controversial program.
"I think it's ultimately going to be defeated by public opinion," Cain predicts.