The Regional Municipality of Waterloo v. Yan *
[Indexed as: Waterloo (Regional Municipality) v. Yan]
72 O.R. (3d) 734
[2004] O.J. No. 4012
Docket: C40012
Court of Appeal for Ontario,
Laskin, Feldman and Blair JJ.A.
October 5, 2004
* Vous trouverez traduction franaise de la dcision ci-dessus la p. 743, post.
Criminal law — Provincial offences — Motor vehicles — Regulation requiring as precondition for admissibility that photograph taken by red light camera system show or have superimposed on it date, location and time of day photograph was taken — Photograph containing that information in code not complying with that requirement in absence of explanation of code which would make it intelligible to person charged with failing to stop at red light.
Criminal law — Provincial offences — Procedure — Section 205.20(3) of Highway Traffic Act providing that no summons shall be issued to provincial offences officer referred to in subsection (1) or (2) unless justice is satisfied that defendant will not be able to have fair trial if officer is not required to give oral evidence — Mere request by defence that summons be issued to provincial offences officer not satisfying that requirement — Onus being on defence to show some reasonable and legitimate basis for examining officer — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 205.20.
After his vehicle was recorded passing through an intersection by a red light camera, the defendant was charged with failing to stop at a red light. At the commencement of the trial before the justice of the peace, the defendant brought a motion requesting that a summons to witness be issued to the provincial offences officer who issued the certificate of offence, pursuant to s. 205.20 of the Highway Traffic Act (the “HTA”). The justice of the peace denied the motion. The trial proceeded and the defendant was convicted. His appeal was allowed. The appeal judge held that a request for a summons to require a provincial offences officer to attend in such circumstances should rarely be refused, and only then in exceptional circumstances. The municipality appealed. [page735]
Held, the appeal should be allowed.
Section 39 of the Provincial Offences Act, R.S.O. 1990, c. P.33 sets out the basic criterion that applies to all summonses to be issued under that Act: the ability to give material evidence in a proceeding. This, in itself, implies the need for more than a mere request by the defence. In addition, the structure of s. 205.20 of the HTA provides for an even more stringent test. A provincial offences officer shall not be required to give oral evidence unless a s. 39 summons is issued. Moreover, no such summons is to issue “unless a justice is satisfied that the defendant will not be able to have a fair trial if the officer is not required to give oral evidence”. A test of that nature cannot be met simply by the defence saying it needs to cross-examine the officer and asking for a summons to issue. The onus is on the defence to show some reasonable and legitimate basis for examining the officer — some valid reason why cross-examination of the officer would be necessary to ensure a fair tr ial and a full defence. There must be some indication by way of affidavit or other evidence, or in the submissions or undertakings of counsel, that there may be a material irregularity in the certified evidence or that there is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statements. The burden is below that of a balance of probabilities. Nothing in the request made by the defence in this case satisfied those requirements.
Section 3(1) of O. Reg. 277/99 provides that in order to be received in evidence for the purposes of Part XIV.2 of the HTA, a photograph taken by a red light camera system must show or have superimposed on it the date on which it was taken and the location and time of day at which it was taken. The photographs in this case contained that information in code. No explanation of the code was contained on the face of the photographs, or in the certified statement of the provincial offences officer, or in the certificate of offence itself. The required information was not intelligible to the person charged with the offence.
The photographs did not comply with the Regulation in a substantive or meaningful sense and were therefore inadmissible to prove the case against the defendant. Consequently, while the appeal was allowed, the conviction was not restored. The defendant had to be acquitted.
Cases referred to
R. v. Davis (1983), 4 C.C.C. (3d) 53, [1983] A.J. No. 1020 (C.A.); R. v. K2 Language Ltd., [1998] B.C.J. No. 669, 40 M.V.R. (4th) 249 (Prov. Ct.); R. v. Klippenstein (1975), 28 C.C.C. (2d) 235, [1975] M.J. No. 166 (Q.B.)
Statutes referred to
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 144(18.1), (18.2), 205.15, 205.20, 205.25 [as am.]
Provincial Offences Act, R.S.O. 1990, c. P.33, s. 39 Rules and regulations referred to Red Light Camera System Evidence, O. Reg. 277/99, ss. 1.1, 2, 3 [as am.]
APPEAL from a judgment of Carr J., [2003] O.J. No. 1342 (C.J.) allowing an appeal from a conviction from a judgment of Rodney J.P., dated May 6, 2002, for failing to stop at a red light.
Richard A.F. Brookes, for appellant Municipality.
Grace Choi, for intervenor, the Attorney General for Ontario. Joseph Di Luca, amicus curiae. [page736]
The judgment of the court was delivered by BLAIR J.A.: —
Background
[1] After his vehicle was recorded passing through an intersection by a red light camera, the respondent was charged with failing to stop at a red light. The red light camera system had been installed at the intersection of Homer Watson Boulevard and Pioneer Drive, in the City of Kitchener, pursuant to O. Reg. 277/99 (“the Regulation”), and the charge was issued to the respondent, as owner of the vehicle, by means of a certificate of offence under Part I of the Provincial Offences Act, R.S.O. 1990, c. P.33 (the “POA”).
[2] At the commencement of the trial before the justice of the peace, the respondent’s agent brought a motion requesting that a summons to witness be issued to the provincial offences officer who issued the certificate, pursuant to s. 205.20 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The justice of the peace denied the motion. He ruled that the respondent had not put forward any evidence or information to show there might have been a material irregularity in the operation of the red light camera system, or provided any basis for his position that he would be denied a fair trial if the officer were not required to give oral evidence. The trial proceeded, and the respondent was convicted.
[3] His appeal was allowed and a new trial ordered. The appeal judge was of the view that a request for a summons to require a provincial offences officer to attend in such circumstances should rarely be refused, and only then in exceptional circumstances.
[4] For the reasons that follow, I would allow the appeal and set aside the order of the appeal judge directing a new trial on the basis that a summons to the provincial offences officer issue. I would not restore the conviction, however. In my view, the photographic evidence tendered to support the conviction was inadmissible, as it failed to comply with the mandatory requirements of the Regulation for such evidence; consequently a verdict of acquittal should be entered.
The Legislative Setting and the Rules of Evidence Pertaining to a Red Light Camera System Offence
[5] The photographs giving rise to the charge in question were taken on October 5, 2001. At that time, Kitchener was one of the municipalities in Ontario then designated for the use of a red [page737] light camera system pursuant to subsection 205.15(1) of the HTA and s. 1.1 [of] the Regulation.
[6] A red light camera system is a combination of one or more cameras and other equipment — known as the gatsometer RLC, model number 36m ST-MC-GL4-ONT — installed at intersections controlled by traffic lights. The system is installed in such a way that,
(a)it can photograph all or part of the intersection; and,
(b)it takes a first photograph of a vehicle when the vehicle approaches the intersection at or above a detectable speed when a red light indication is shown and it then takes one or more further photographs in succession.
See s. 2 of the Regulation and subsection 205.25(b) of the HTA.
[7] An owner of a motor vehicle may be charged with failing to stop at a red light based on evidence obtained through the use of such a system: HTA, subsections 144(18.1) and (18.2). Such a conviction gives rise to a fine only, however. The owner is not liable to imprisonment or a probation order, or to a suspension of the owner’s driver’s licence or the loss of demerit points.
[8] The charge against the respondent was issued by way of a certificate of offence, which contained, on its reverse side, certified statements of a provincial offences officer indicating that two photographs had been taken at the intersection in question on the date in question “through the use of a prescribed red light camera system and that the certified statements [in the certificate of offence] were obtained from the information in the aforementioned photographs and the information shown on them”. The photographs show the vehicle approaching the intersection in the face of a red light and continuing into the intersection while the light remains red. The vehicle licence plate registration is clearly visible. There are three lines of code at the top-centre of each photograph. No explanation of the code is contained on the face of the photographs, or in the certified statement of the provincial offences officer, or in the certificate of offence itself.
[9] There is a special legislative scheme for the admissibility of evidence in cases of red light camera offences. Proceedings are governed by Part XIV.2 of the HTA.
[10] First, — provided it complies with the requirements of the regulations – a photograph obtained through the use of a red light camera system is to be received in evidence in a proceeding where a person is charged with failing to stop at a red light in an area designated by the regulations. If the photograph purports to be certified by a provincial offences officer as having been [page738] obtained through the use of such a system, it is to be received in evidence (in the absence of evidence to the contrary) as proof that the photographs were obtained through the use of a red light camera system. Moreover, – again in the absence of evidence to the contrary – such a photograph is admissible as proof that the information shown or superimposed on the photograph is true and that the vehicle and its driver did not stop and proceeded before a green indication was shown: see HTA, subsections 205.15(1), (2), (3) and (4).
[11] In addition, s. 3(1) of the Regulation mandates that: 3(1) In order to be received in evidence for the purposes of Part XIV.2 of the Act, a photograph taken by a red light camera system must show or have superimposed on it,
(a) the date on which it was taken; and
(b) the location and time of day at which it was taken. (Emphasis added)
[12] Section 205.20 of the HTA is particularly pertinent for purposes of this appeal. It states:
205.20(1) The provincial offences officer who used the evidence obtained through the use of a red light camera system to identify the owner or driver of the vehicle involved in the alleged offence and who issued the offence notice and certificate of offence shall not be required to give oral evidence at trial unless a summons requiring the officer to attend is issued at trial under section 39 of the Provincial Offences Act.
(2) A provincial offences officer who certifies that a photograph was obtained through the use of a red light camera system shall not be required to give oral evidence at trial unless a summons requiring the officer to attend is issued at trial under section 39 of the Provincial Offences Act.
(3) No summons shall be issued to a provincial offences officer referred to in subsection (1) or (2) unless a justice is satisfied that the defendant will not be able to have a fair trial if the officer is not required to give oral evidence.
[Emphasis added]
[13] Finally, s. 39 of the POA, referred to in the preceding sections, provides as follows:
39(1) Where a justice is satisfied that a person is able to give material evidence in a proceeding under this Act, the justice may issue a summons requiring the person to attend to give evidence and bring with him or her any writings or things referred to in the summons.
Analysis
The test for ordering a s. 205.20 summons
[14] The appellant Municipality submits the appeal judge erred in applying an inappropriately low standard for determining [page739] whether a defence request that a summons to witness issue to a provincial offences officer should be granted pursuant to s. 205.20 of the HTA. He held that such a summons should rarely be refused, save in exceptional circumstances, and should in effect be granted at the mere request of defence counsel.
[15] It appears the appeal judge acceded to the defence argument that in most cases the officer should be required to attend if the defence wishes the officer to do so. In the course of his reasons, after reciting that argument, he stated:
Indeed, I find I have some difficulty understanding why the defense would have to say much more than, “I require the officer to ensure that my client has a fair trial.” . . . . . I don’t find that the defense has much obligation, quite frankly, to satisfy me that the summons should be issued. Indeed, it seems to me that where it’s requested and where it’s suggested that this witness is needed for the fair trial of his client, then in normal cases that summons should be issued and the officer should be required to attend.
The Crown is relying on a presumption and the only chance, in my opinion for the defense to rebut that presumption, is to have an opportunity to cross-examine the individual who deals with the picture and the nature of the placement of the camera and things of that nature. Therefore, in my view, the request for a summons to require the officer to attend to give evidence should be rarely refused quite frankly, and where the request is made, except in exceptional circumstances, I find it should be granted and I find in this particular case on the information before me . . . the summons should have been issued . . . (Emphasis added)
[16] I agree that the standard applied by the appeal judge is too low. To say that a summons should generally be granted whenever the defence requests it is to apply no standard at all. Such a test is inconsistent with the legislative framework outlined above.
[17] Section 39 of the POA sets out the basic criterion that applies to all summonses to be issued under the POA (the ability to give material evidence in a proceeding). This, in itself, implies more than a mere request by the defence. In addition, though, the structure of s. 205.20 of the HTA provides for an even more stringent test. A provincial offences officer shall not be required to give oral evidence unless a s. 39 summons is issued. Moreover, no such summons is to issue “unless a justice is satisfied that the defendant will not be able to have a fair trial if the officer is not required to give oral evidence”: s. 205.20(3). A test of that nature cannot be met simply by the defence saying it needs to cross-examine the officer and asking for a summons to issue. [page740]
[18] Cross-examination is an important right, as Mr. Di Luca as amicus curiae submitted. However, for this particular type of offence, prosecuted through this particular legislative mechanism (the red light camera system), the legislature has determined, in the interests of effective traffic safety and control, and in the interests of prosecutorial economy, that the right to examine the provincial offences officer in question will be limited. In this context, I can see no reason in law why the legislature is not permitted to implement such a scheme. The standard to be applied in directing that a summons issue to the provincial offences officer must be interpreted in light of that scheme and the language by which it is put in place.
[19] The use of certified evidence is designed to save the delay and expense of calling the certifier of the evidence, where, prima facie, there is no basis to doubt the accuracy and reliability of the certificate: R. v. Klippenstein (1975), 28 C.C.C. (2d) 235, [1975] M.J. No. 166 (Q.B.), at para. 2; R. v. Davis (1983), 4 C.C.C. (3d) 53, [1983] A.J. No. 1020 (C.A.). The situation is not analogous to those in which the liberty of the subject may be at stake. Here, the only sanction that may be imposed is a fine; there is no exposure to imprisonment, probation, loss of licence or loss of demerit points. The limits placed on the examination of the provincial offences officer in red light traffic camera situations reflects a proper balance of the various competing interests, in my view.
[20] That is not to say that the standard to be applied should be set too high. The onus is on the defence to show some reasonable and legitimate basis for examining the officer — some valid reason why cross-examination of the officer would be necessary to ensure a fair trial and a full defence, as Ms. Choi submitted on behalf of the intervenor, Attorney General. There must be some indication by way of affidavit or other evidence, or in the submissions or undertakings of counsel, that there may be a material irregularity in the certified evidence or that there is some proposed defence evidence that could raise a reasonable doubt as to the accuracy of the certified statements. See R. v. Davis, supra. I would place the burden below that of a balance of probabilities: see R. v. K2 Language Ltd., [1998] B.C.J. No. 669, 40 M.V.R. (4th) 249 (Prov. Ct.).
[21] There was nothing in the request made by the respondent in this case to satisfy the foregoing requirements. The justice of the peace was justified in refusing to grant the summons in the circumstances, in my opinion, and the appeal judge erred in reversing that decision. [page741] Was the photographic evidence inadmissible?
[22] As amicus curiae, Mr. Di Luca raised two additional issues questioning the validity of the initial conviction of the respondent. First, he submitted that the evidence of the photographs was inadmissible because they failed to comply with the mandatory statutory requirements for admissibility. Second, he argued there was no evidence before the justice of the peace to establish that the type of camera used was the approved device set out in the Regulations.
The approved type of photographic device
[23] I shall deal with the latter point first. It is based upon the contention that the certificate of offence in this matter does not comply with s. 2(1) of the Regulation, which provides that “a red light camera system is a combination of one or more cameras and other equipment known as the Gatsometer RLC, model number 36 ST-MC-GL4-ONT . . .”. The certificate states that the red light camera system used was a “(Make) Gatsometer (Model) 36m ST-MC-GL4-ONT”. In short, the letters “RLC” are missing from the description of the make and model number of the device.
[24] This argument was not raised at trial, and I would not give effect to it.
[25] Apart from the omission of the letters “RLC”, the description of the make and model number of the device complies precisely with the language of the Regulation as to that which constitutes an authorized red light camera system. There is nothing in the record to suggest there might be another red light camera system that is only differentiated from the one specified in the Regulation by the descriptor “RLC”. In any event, had the issue been raised at trial it would have been open to the Crown to request an adjournment to file an amended certificate.
Did the photographs fail to comply with the mandatory requirements of the regulation?
[26] Section 205.25 [of] the HTA empowers the Lieutenant Governor in Council to make regulations, amongst other things,
. . . . .
(d) governing the form and content of photographs for the purposes of subsection 205.15(2), including information that may be or must be shown or superimposed on the photographs, and prescribing a system of codes, symbols or abbreviations that may be used to convey the information;
(Emphasis added) [page742]
[27] Subsection 205.15(2) stipulates that the photographs submitted into evidence under the red light camera scheme “must comply with the requirements of the regulations made under clause 205.25(d)” [emphasis added].
[28] The Regulation prescribing the requirements for photographs taken by a red light camera system deals with some, but not all, of the matters referred to in clause 205.25(d). For instance, although the photographs filed as evidence in the instant case contain three rows of alphanumeric code, there is no regulation that prescribes a system of codes, symbols or abbreviations that may be used to decipher the alphanumeric information. At the same time, s. 3(1) of the Regulation, cited above, mandates that to be received in evidence a photograph must show or have superimposed on it the relevant date, time of day and location.
[29] In this case, neither the location, nor the time of day, nor the date upon which the photograph was taken, may be ascertained on the face of the photograph itself without the information which provides the key to deciphering the code. While the time of day and the date are important pieces of information for the person charged with the offence to know, the location is particularly important for purposes of the red light camera enforcement scheme because it is only if the location falls within an area designated by the Regulation for use of such a system that the photograph is admissible as evidence.
[30] The intervenor argues that the formal requirements of the Regulation must be interpreted in the context of the scheme and of the information contained on the photographs and the certificate of offence, taken together. Since the provincial offences officer certifies in the certificate of offence that he has viewed the photographs in question and that, having done so, he has determined (i) that the motor vehicle shown and bearing the licence plate indicated is owned by the respondent and (ii) that the respondent committed the offence of failing to stop at a red light at the intersection of Homer Watson Boulevard and Pioneer Dr. in the City of Kitchener, a designated area pursuant to the Regulation, the requirements have been met.
[31] I do not accept the intervenor’s argument in this respect. The legislation empowers the Lieutenant Governor in Council to pass regulations prescribing what may or must be shown or superimposed on the photographs, and the Regulation clearly mandates that the photograph must have shown or superimposed on it the date, location and time of day as a precondition to its admissibility. The photographs here do not disclose that information in a fashion that is intelligible to the person charged with the offence. They are therefore inadmissible to prove the case against the espondent. [page743]
[32] To the extent that the photographs show, or have superimposed on them, the date, time of day and location where and when they were taken, they do so only in a very technical sense. The information is in the form of a code, something permitted by the HTA. However, the photographs cannot be said to be in compliance with the Regulation in a substantive or meaningful sense, in the absence of an explanation of the code providing the person charged with the offence with the key to unlock his or her understanding of the code — a code containing information that is critical to an understanding of the offence charged.
[33] Accordingly, even though the justice of the peace was justified in proceeding with the charge against the respondent without granting a summons to compel the provincial offences officer to testify, the photographic evidence tendered in support of the charge was inadmissible. The respondent had to be acquitted.
Disposition
[34] For the foregoing reasons, then, I would allow the appeal and set aside the order of the appeal judge directing a new trial on the basis that a summons to the provincial offences officer issue. Because the photographic evidence tendered to support the conviction was inadmissible, as it failed to comply with the mandatory requirements of the Regulation for such evidence, a verdict of acquittal must be entered.
Appeal allowed.