Appeal court to put photo radar under the gun By: Kevin Rollason Posted: 7:00 PM CDT Tuesday, Jul. 21, 2020 Last Modified: 6:06 PM CDT Tuesday, Jul. 21, 2020 Updates

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The Manitoba Court of Appeal has agreed to hear a legal challenge that could put the brakes on photo radar.

In a written decision, Justice Holly Beard ruled that the full appeal court should hear arguments about the legality of provincial photo radar legislation and whether it violates Manitobans’ charter rights.

“I am satisfied there is an arguable case of substance that the provisions of (photo radar in the Highway Traffic Act)… that make an owner guilty of a driving offence without proof that he or she was the driver create a reverse onus and breach Section 11 (d) of the charter regarding an accused’s presumption of innocence and that this issue merits the attention of the court,” Beard wrote.

The judge noted the law allows thousands of photo radar tickets to be issued every year and affects a large number of people.

“This case is really about the person guilty of the offence and not someone who happens to own the vehicle.” – Lawyer Markus Buchart

Lawyer Markus Buchart, who represents vehicle owner Raymond Bernier, said Tuesday he was happy with the decision.

“(The judge) said it’s a high hurdle to convince them to hold a hearing and we did,” he said, noting a date for a hearing will be scheduled later.

“This case is really about the person guilty of the offence and not someone who happens to own the vehicle. I don’t know if it would strike completely all of photo radar, but it would take away the shortcut the city is allowed to do.

“Sometimes people are out of the country and they get a ticket.”

When the matter was before the court on Jan. 30, Beard was told Bernier’s vehicle was caught speeding by a photo radar camera in 2016 and 2017.

When Bernier was charged with the offences, he appeared in provincial court and pleaded not guilty, arguing the law “violated his presumption of innocence.”

Both the provincial court judge, and later Court of Queen’s Bench justice, convicted him. They ruled that his argument had already been dealt with in the late 1980s by the appeal court.

However, Buchart argued before Beard that there had been a number of other legal decision across the country since then, including in New Brunswick where an appeal court ruled on a similar photo radar case and found that charging a vehicle owner violated their rights.

Last month, the Winnipeg Police Service announced photo radar revenue had dropped due to the pandemic and would affect its 2020 budget. Revenue has dropped $7.9 million, expenses have climbed $5.6 million, leading to an overall $13.5-million shortfall.

“The issue of being able to charge the owner of a vehicle, and not the driver, is long overdue to be heard. That’s why we’re pleased with this decision.” – Todd Dube, Wise Up Winnipeg

Todd Dube of Wise Up Winnipeg, which says photo radar is a cash grab and not about making Winnipeg streets safer, calls the legal action “the biggest and most important case of all the cases of photo enforcement.

“The issue of being able to charge the owner of a vehicle, and not the driver, is long overdue to be heard. That’s why we’re pleased with this decision.”

Dube said if the current photo radar practice is struck down, the city could always follow California’s example in which two cameras are used: one to capture an image of the licence plate and the other to take a photo of the driver.

“Then a server has to go to the address with hope of seeing the driver, otherwise no violation,” he said.

“The only other applicable law is for a non-moving violation like with a parking ticket. But when dealing with a moving violation, it is a whole other matter. A moving violation not to the driver is really inappropriate.”

kevin.rollason@freepress.mb.ca

Kevin Rollason
Reporter

Kevin Rollason is one of the more versatile reporters at the Winnipeg Free Press. Whether it is covering city hall, the law courts, or general reporting, Rollason can be counted on to not only answer the 5 Ws — Who, What, When, Where and Why — but to do it in an interesting and accessible way for readers.

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