Tuesday, March 27, 2012

Winnipeg photo radar in trouble?


Photo radar under the gun
By Geoff Kirbyson
March 30, 2012 Issue
Winnipeg lawyer Scott Newman says photo radar tickets can be challenged and the technology is not irrefutable. (Photo by Ruth Bonneville for The Lawyers Weekly)

A Manitoba Court of Queen’s Bench decision that acquitted a driver fighting a photo radar speeding ticket, has some lawyers suggesting it could lead to a traffic jam of motorists looking for the same result.

Evan Roitenberg, a lawyer at Winnipeg-based Gindin Wolson Simmonds Roitenberg, who represented the defendant, Marshall Miller, said red-light cameras and mobile units have survived in Manitoba because people haven’t challenged them properly in court.

That could be about to change as public anger, especially in Winnipeg, over the issuing of tickets for all sorts of moving violations is reaching a boiling point. The highest profile example occurred in early March when an older couple was pulled over for allegedly using a cellphone while driving — even though they claimed not to own one, and even invited the officer to search their vehicle.

“I think people are already taking the opportunity to challenge these tickets more and more. That’s what people have to do. If you think you’ve been aggrieved by what’s going on, fight back. But you need a properly structured legal argument to convince the hearing officer,” Roitenberg said.

As well, the cost and hassle of hiring a lawyer to fight a photo radar ticket isn’t seen to be worth it by the majority of Manitoba motorists. Allan Fineblit, chief executive officer of the Law Society of Manitoba, says people are more likely to fight tickets handed out by actual police officers because, unlike photo radar tickets, they count against your licence.

“You don’t want to put your ability to drive in jeopardy so people will fight more vigorously and will be prepared to pay to take on a lawyer,” he said.

Photo radar tickets, on the other hand, are sent out to the owner of the offending vehicle, not the driver. As such, Fineblit says car owners need to balance the cost of paying the ticket versus taking a day off work or hiring a lawyer to plead their case.

“Who in their right mind would invest a couple of thousand dollars to save a couple of hundred dollars with the chance that you might not win?” he said.

In her ruling, R. v. Miller, 2012 MBQB 62, Justice Joan McKelvey said a justice of the peace made three mistakes in convicting Miller last spring. They include: errors in law in interpretation of a statutory provision mandating the admissibility of justice; making a test for admissibility of evidence sufficient for basing a finding of guilt without the necessity of an assessment of proof beyond a reasonable doubt; and shifting the burden of proof to Miller.

When there’s a breakdown in the public confidence of the tickets handed out, more people will start challenging them in court, said Winnipeg lawyer Scott Newman.

“When that happens, you’ll see a backlog in the availability of court dates, which results in a delay in justice. That delay is never good for the government, the judiciary or the public,” he said.

One of the reasons why many motorists never consider fighting photo radar tickets is because the technology is seen to be irrefutable. Nonsense, Newman said.

“The judge says it doesn’t mean you’re guilty beyond a reasonable doubt. What might happen is the evidentiary burden might shift [to the Crown],” he said.

Despite the controversy, ticket revenue in Winnipeg is expected to drop this year, because drivers are more aware of the cameras.

Roitenberg said the province needs to look at red-light cameras in terms of their value and the manner in which cases are prosecuted. He said the current legislation allows the Crown to take a number of legal shortcuts to prove a case.

With a traditional speeding ticket, police officers will testify that they set up in a certain location, tested their equipment and it gave them a certain reading with a particular vehicle.

With photo radar, however, Roitenberg explained that the government is able to admit documents signed by people who tested the cameras at some point in the past and found them to be in working order.

“You might get a ticket today but [the Crown] might present certificates saying the machine was tested last June. Instead of knowing it was in good working order on the day you got your ticket, the court hears it was operational months ago,” he said.

Fineblit suggested that people in Winnipeg have   contradictory positions on traffic tickets. “They rant and rave about drivers who talk or text on their cellphones while driving and how there isn’t enough enforcement — but as soon as they get a ticket themselves, they question why the police aren’t out catching “real” criminals,” said Fineblit

“We want vigorous enforcement on one hand and less intrusiveness on the other,” he said.

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