- Amar Khoday
Photo Radar and the Speeding Ticket Blues
Photo: Amar Khoday (in the blistering cold)
Once upon a time, when you drove past the speed limit, you might have been stopped by police officers and received a speeding ticket. While this practice has by no means been eliminated, there has been a proliferation of the use of photo radar in various jurisdictions. Photo radar devices purportedly capture a vehicle traveling at the particular speed it is actually moving at. The owner of the vehicle is then mailed a ticket indicating the nature of the infraction, the fine that has to be paid, and the due date to make payment. The recipient receives the ticket several days if not well over a week later.
There are some advantages to this. People can avoid uncomfortable encounters with law enforcement officers. By not having been stopped, a driver is not delayed in carrying out their plans. Furthermore, the photo radar doesn’t run the risk of discriminating on the basis of some prohibited ground.
However, there are several problems that have been identified with photo radar (see e.g. here). More recently, a Quebec Justice of the Peace ruled in favour of a defendant stating that the photo radar image alone as evidence was inadmissible on account of the fact that it is hearsay without a police officer testifying that they witnessed the actual conduct. Quebec’s Director of Criminal and Penal Prosecutions opted not to appeal. It remains to be seen whether courts in other provinces will take the same view as the Quebec Justice of the Peace.
There are perhaps other matters that are of concern with the use of photo radar. For instance, by the time one receives the ticket in the mail, the purported event, which gave rise to the issuance of the ticket, has long since passed. It becomes challenging for an individual to know days if not weeks after whether they actually committed the wrongful act (e.g. speeding). It becomes practically impossible to be able to credibly plead not guilty when one cannot even remember whether they were speeding or not. Unlike many serious criminal acts that tend to involve more conscious thought and are often something one would not forget having done, driving is considered more routine or mundane behaviour. Generally, the manner in which we drive on any given day is typically not something we commit to memory or are conscious of. As Justice Cory wrote, in R. v. Hundal:
[T]he nature of driving itself is often so routine, so automatic… . Driving motor vehicles is something that is familiar to most adult Canadians. It cannot be denied that a great deal of driving is done with little conscious thought. It is an activity that is primarily reactive and not contemplative. It is every bit as routine and familiar as taking a shower or going to work. Often it is impossible for a driver to say what his or her specific intent was at any moment during a drive other than the desire to go from A to B.
Given this, it is extremely difficult for most to challenge the issuance of a ticket and the state’s claim that they exceeded the speed limit on a given occasion. It’s also worth noting that paying the fine is legally viewed as an admission of guilt (however minimal the stigma given the nature of the infraction – it’s after all regulatory in nature). This process places recipients in a particularly unfair position relative to the state. Because these are regulatory offences, the Crown does not have to prove either a subjective or objective state of fault unless the statute indicates otherwise. It merely has to show that an accused has committed the wrongful act (or actus reus) and did so voluntarily.
The issue of photo radar and the ensuing speeding tickets aren’t sexy subject matters. Yet they are ones that affect countless individuals and result in a substantial financial cost for many. Some are taking the initiative to launch class action lawsuits to counter the use of photo radar. Time will tell whether such measures succeed or fail. Given how many have likely been at the receiving end of speeding tickets based on photo radar evidence, there is a strong possibility that the litigation will garner a generous amount of support.