By Jordan W. Charness
It’s nice to see that some people are still willing to fight for their principles; sometimes though it would be nice if these people would actually win. Unfortunately, in the many years that I have been practicing law I noticed that just being right is not always enough to win.
Then again, in a lawsuit both parties tend to think that they are right or else they would not be in a trial asking for a judge’s opinion. By the time we get to a trial, the lawyers on both sides are 100 percent convinced that their side is the only side that is right and that truth justice and Canadian way must be protected by ruling in their favour. But in this most adversarial of processes, one side must inevitably win and other side will lose.
The difference becomes even more obvious when a citizen decides to take on the government. As you know, our elected representatives are elected to govern us. That’s why we send them to Parliament. We then complain about the laws that they pass and how they affect us. Although we complain we don’t do it very loudly and usually wait until the next election before speaking with our votes.
Since the government passes laws, and we elected the government, we are expected to follow the laws that they pass. In order to make sure that no government lets this power go completely to its head there are a few basic laws that even the government can’t break. As far as the average citizen is concerned, the most important one is probably the Charter of Rights.
Every law that is passed that in some way affects Joe Canadian must not in any way contravene the basic rights and freedoms enshrined in this law. If you truly believe that a law is unjust then you have a right to challenge it in court.
That’s just what Doug Stead tried to do in British Columbia. He used the Charter of rights to try and battle a speeding ticket he received that was issued as a result of being caught on photo radar. Although this case is an old one the controversy about photo radar just won’t go away.
Photo radar is a system whereby a camera is attached to a radar detector and set up on the side of road. When the radar detector finds a car travelling in excess of the speed limit a picture is automatically taken of the rear of the car and a notation is made by the machine of the car’s speed. A few days to a few weeks later the owner of the car, as recognized by his license plate number, is sent a ticket for speeding by mail.
In this case the ticket was for $100. Mr. Stead has reportedly spent about $120,000 fighting against this ticket. This is a man who stands up for what he believes is right.
The argument that he made was that the photo radar law is unconstitutional because it forces people to prove they are not guilty of an offense. In Canada we have a principle of law whereby everyone is presumed innocent unless proven guilty. With photo radar there’s a presumption that the owner of the car was the one who was speeding. The ticket is then issued in the name of the registered owner of the license plate. Obviously the owner of the car is not always the one who is driving it. This means that the owner is sent a ticket and must fight in court to prove that it wasn’t him.
One of the rights guaranteed by the Charter of Rights is this right to be presumed innocent. Another of the rights guaranteed by the Charter is the right to a quick trial and the right to be able to mount a valid defense.
The lawyer argued that all of these rights are violated by a system whereby the owner of the car is sent a ticket several weeks after allegedly committing the offense and is forced to try and remember what may have happened many days ago including who might have been driving the car at that time. The lawyer argued that this made it too difficult for anybody caught by this machine to properly defend himself.
Although this does seem to make sense on the face of it, several courts in British Columbia have disagreed. In fact this case went all the way to the British Columbia Court of Appeal who unanimously rejected Mr. Steads argument and ruled that the law allowing photo radar was absolutely legal and constitutional. His battle lasted from 1996 to 2001 when the Supreme Court of Canada refused to hear his case.
Notwithstanding that court judgment, photo radar was so hated by the citizens of British Columbia that some say it helped to bring down the government. The elimination of photo radar was a key promise that was kept by the party that won. While the court case may have proved it was legal, photo radar was abolished in British Columbia in 2002.
The idea however is far from dead: the provinces of Alberta and Manitoba still have photo radar and the opposition party in Ontario is clamoring to bring it back. Quebec has just announced that it may start implementing photo radar in Quebec for the very first time within the next year. The controversy continues to rage across the nation. Its proponents in government claim that it makes people slow down and saves lives while many drivers look at it as just another cash cow for the government .