Law in Quebec

“Perhaps it is time to redraft certain provisions of the Quebec Highway Safety Code that regulates the photo radar system because there seems to be a lot of cracks,” observed Charles Daviault, a Montreal litigator with Gowling WLG.

In a decision that seemed to catch the Quebec government off-guard, Judge Cimon held that evidence emanating from a photo radar in the case involving Montreal resident Maria Carmela Bove was not admissible because it was based on hearsay evidence. The $1,160 ticket issued by the Sûreté du Québec, the provincial police force, accused Bove of driving 141 kilometres per hour in a 70 kilometre per hour zone on a highway. But contrary to the Highway Safety Code, the police officer who issued the ticket did not check to see if there was a sign posting the speed limit in the area where the car was driving. Nor was the officer able to confirm whether the photo radar device was properly calibrated. Instead the officer relied on statements from other officers who made the checks, said Judge Cimon who acquitted Bove.

“An offence report is not a magical shortcut that allows the author to not respect the elementary rules of the rules of evidence,” said Judge Cimon in an 11-page ruling in Directeur des poursuites criminelles et pénales c. Bove 2016 QCCQ 13829. “The Court is perplexed why the Bureau des infractions et amendes (the provincial agency that processes tickets) would allow such a system to be put in place,” adding that the case seemed to give credence to the common criticism that photo radars are “a ‘cash cow’ used to generate revenue.” More significantly, Judge Cimon served “formal notice” to the Crown that the evidence used in the prosecution of fixed photo radar cases is based on “insufficient evidence,” and that in the future defendants can seek costs if the Crown “persists” to submit evidence “it knows is illegal.”

“This is a fundamental ruling in penal matters, in evidentiary matters and in cases involving photo radars,” remarked Camille Taillefer, a Montreal lawyer who along with her colleagues, successfully plead the Bove case. “It’s an important case because it puts a spotlight on what may have been a widely-practiced system, and this single case has had a domino effect on many other cases.”

To the surprise of legal observers, the Director of Criminal and Penal Prosecutions (DPCP) decided not to appeal the Cimon decision, a move that lead Montreal lawyer Joey Zukran to seek permission to launch a class action suit. According to the class action application, there have been 877,000 statements of offence issued between August 2009 and November 2016 for infractions captured by photo radars and red light camera technology. The fines for these infractions totalled $116 million, according to the Quebec Ministry of Justice. The class action, which lists the DPCP, the provincial police force and the Bureau as defendants, is seeking an order to cease the use of photo radar and red light cameras, an order that evidence yielded by these technologies as inadmissible and illegal, and $50 million in damages on top of reimbursed penalties and fines because of the defendant’s “misconduct and bad faith.”

“When you receive one of these tickets, it looks like it’s super solid evidence against you but in reality even a first-year law student knows that you cannot rely on hearsay evidence,” said Zukran. “The decision really rips into the government and basically says that they should have known that the evidence they have been providing is inadmissible. I’ll even say it was illegal because of the way the evidence was presented and the way citizens were taken advantage of.”

A second class action motion seeking authorization lodged by Montreal lawyer Jamie Benizri covers only infractions caught by photo radars. It too is seeking the reimbursement of penalties and fines and $100 in damages for each ticket issued by photo radar. The case hinges on Cimon’s decision as well but is also relying on guidance issued by the Quebec Court of Appeal in Baie-Comeau (Ville) c. D’Astous 1992 J.Q. 475, J.E. 92-950 (C.A.Q). In that case the appeal court held that the user of a radar gun must be used by a person who is trained, that the radar gun be tested before and after its usage, and that the test showed that the instrument was precise. “The proposed class action is using the criteria established by the Quebec appeal court when it adjudicated on the validity of a speeding test,” said Benizri.

Benizri is open to collaborating with Zukran in the class action suit, but Zukran is not interested. In fact, Zukran has already filed a motion seeking to have Benizri’s class action suspended. “Jamie is actually a friend of mine and he is free to file whatever action he wants but it has be done within the confines of the law and in class action law in Quebec the rule is clearly established as first to file – and we were first to file here.”

Another decision that largely went unnoticed may prove to be just as significant, if not more important, than the Cimon decision. Montreal lawyer Ronald Audette, who was accused of burning a red light in December 2009, won his case after Quebec Superior Court Judge Daniel Payette overturned a decision by Justice of the Peace Johanne White. Audette successfully plead that he was not behind the wheel at the time of the infraction even though the ticket identified him as the driver of the vehicle at the time of the offense. Under article 592.1 of the Quebec Highway Safety Code, the owner of a vehicle whose name appears in the (provincial vehicle) registry may be convicted of “every offense” under the Code or any municipal traffic or parking by-law committed with the vehicle, unless he proves that at the time of the offence the vehicle was in the possession of a third person without his consent. The ticket that Audette received was issued under Article 359 of the Code, which states that when facing a red light, the driver of a road vehicle or any person riding a bicycle must stop his vehicle. Following guidance issued by the Supreme Court of Canada in R. v. Saunders, ]1990] 1 SCR 1020, Judge Payette noted that “it is a fundamental principle of criminal law that the offence as particularized in the charge must be proved.” Judge Payette held in Audette c. Directeur des poursuites criminelles et pénales, 2016 QCCS 4706 that when tickets are issued under Article 359, the Crown must prove that the defendant himself was driving the vehicle.

According to Daviault, who plead the case for his colleague, the Crown admitted that it was standard practice to issue such tickets under Article 359 instead of Article 592.1 which targets the owner of the vehicle. “The judge places a lot of emphasis on the fact that this is a matter not just of form but of substance and procedural equity,” said Daviault.

The Crown in this case has appealed the decision and the appeal court granted the motion. A date has yet to be set for the hearing.