Defending a traffic ticket

Prepared By Judith Blackwell 1984

Revised By Sandra Sarsfield 1994

Revised By Sue Wishart 1999

Please see the acknowledgments at the end of this publication

TABLE OF CONTENTS

I. INTRODUCTION

II. RECEIVING A TICKET

III. TYPES OF TICKETS AND HOW TO DISPUTE THEM

Violation Ticket

Offence Notice

Appearance Notice, Promise To Appear, Summons

What If You Can't Make Your Hearing?

IV. PREPARING FOR YOUR HEARING

How Do You Understand the Meaning of the Law?

Reading the Section

How the Courts Read the Section

What Other Kinds of Information Will Help the Court Decide in Your Favour?

Documents and Photographs

Witnesses

V. YOUR HEARING

The Courtroom: What Traffic Court Looks Like

The Hearing Itself: What Happens

Preliminary Objections

What the Prosecution Has To Prove

A. BURDEN OF PROOF

Proof Beyond a Reasonable Doubt

Reversing the Burden of Proof

..Photo Radar Tickets

B. THE ELEMENTS OF AN OFFENCE

Three Fundamental Elements

The Specific Elements of an Offence

Traffic Ticket Improperly Filled Out

Making a Case For The Defence

A. YOUR VERSION OF THE FACTS

Questioning the Police Officer

Questioning Your Own Witnesses

Testifying On Your Own Behalf

B. LEGAL DEFENCES

Absolute and Strict Liability Offences

Charter of Rights Arguments

VI. CONCLUSION

VII. ACKNOWLEGMENTS

I. INTRODUCTION

THIS PUBLICATION WAS SPECIFICALLY PREPARED for people in the Greater Victoria area who want to dispute a traffic ticket. However much of the information contained in this publication also applies to the rest of the Province of British Columbia.

This publication will tell you:
1. What to do when you receive a ticket.
2. How you go about disputing a ticket.
3. How to prepare for your hearing.
4. How to conduct your hearing.

There are traffic violations which you can defend on your own. These are usually minor violations, such as speeding, disobeying a stop sign, making a U-turn, failure to produce a driver's licence, and parking offences.

However, if you are charged with a more serious offence, such as impaired driving, dangerous driving, or failure to remain at the scene of an accident, you should contact a lawyer to handle your case.

Because the law is always changing, this booklet is accurate only up to its date of publication. It is intended to answer questions of a general nature. For specific advice, you should contact a lawyer or your local Legal Services Society office.

II. RECEIVING A TICKET

LET'S LOOK AT WHAT YOU should do if a peace officer stops you for a traffic violation. What kind of information must you provide?

Upon a peace officer's request, you are required to stop and provide:
1. Your name and address,
2. The name and address of the vehicle's owner,
3. Your driver's licence,
4. The car registration and insurance card (owner's certificate).

If the officer believes you have been driving while impaired, he may ask you to go with him to the police station for a breathalyzer test. Unless you have a good and lawful reason for refusing this test, you can be charged with a criminal offence for refusing to take it. Impaired driving is a serious offence and we suggest you contact a lawyer to help you deal with it.

We remind you that this brochure is designed to help you fight minor traffic charges.

When the peace officer presents you with a traffic ticket he will ask you to sign it. Many people feel that by signing the ticket they are admitting they have committed the offence. This is not true. By signing the ticket you are merely acknowledging receipt of the ticket.

When you receive a ticket it is to your advantage to cooperate. Be patient and courteous. Remember, however, that anything you say may be noted by the officer and later used against you in a hearing.

DECIDING WHAT TO DO

After you have received your ticket, stop for a moment and think about the charge that has been laid against you.
Did you actually commit the offence described on the ticket? If so, did you have a good reason or excuse?
Later you will have to determine whether that reason or excuse is a defence. But at this stage, you should waste no time in taking the steps necessary to dispute your ticket.

WITNESSES

If you think the ticket was unfairly issued to you, you should immediately look around for any witnesses who may assist your case. They may have been a friend in the car with you, or a witness on the street where the incident occurred. Make sure you get the name, address and phone number of witnesses. This information will be of use to you at the hearing.

RECORD THE EVENTS

As soon as possible record the events exactly as you remember them. For example, note:

the weather

the time of day

traffic conditions

conversations with the peace officer and witnesses.

Also draw a map showing the location of your car and the police car. These notes will later be useful to you at your hearing.

III. TYPES OF TICKETS AND HOW TO DISPUTE THEM

FOR MINOR TRAFFIC VIOLATIONS there are two types of traffic tickets or charges, each of which can be defended or disputed.

It is important to identify what type of ticket you have received because the type of ticket determines how you can dispute it. The two types of tickets are the Violation Ticket and the Offence Notice.

1. THE VIOLATION TICKET

The Violation Ticket is given for Motor Vehicle Act offences and offences against other Provincial Statutes including "moving" traffic offences. Note that the Violation Ticket says Province of British Columbia and Offence Act at the top of the ticket.

Penalty: A substantial fine is possible. For example, in November 1999 the fine for speeding from 1 to 20 km over the speed limit was $115.00 ($100 fine plus a victim impact surcharge of $15) and $173.00 ($100 fine, $50 supplemental fine, and victim impact surcharge of $23) for driving 20 to 40 km over the limit. Speeding above 40 km in excess of the limit results in a fine in the amount of $350.00 ($300 fine plus a victim impact surcharge of $50).

Points are also given, which result in monetary penalties and a withholding of licence and insurance until these penalties are paid.

You can dispute the allegation (i.e. that you committed the offence) or you can dispute the amount of the fine. Where you are alleged to have contravened an enactment for which there is a minimum fine, the Justice of the Peace cannot impose a lesser fine but may vary the amount of the supplemental fine. For example, if you admit to driving 21 km over the speed limit you will have to pay the $100 fine and the $23 victim impact surcharge as this is a minimum fine under the Motor Vehicle Act but the Justice of the Peace may reduce the $50 supplemental fine. If there is no minimum fine for the offence the the Justice of the Peace has the discretion to impose a fine based on the severity of the offence and on your ability to pay. In order to make this determination you will need to tell the Justice of the Peace some details about your financial situation.

To Dispute:

By Mail: Write a brief letter stating your intention to dispute and include the following which you will find on the Violation Ticket:

a) the ticket number;

b) the Violation date;

c) the Act and Section of the offence(s);

d) your full name;

e) address;

f) driver's licence number; and

g) date of birth.

Send the letter to the following address:

Ticket Dispute Processing
Bag Service 3510
Victoria, B.C. V8W 3P7

This letter must be mailed within 30 days of the offence date.

In Person: Go to the address shown on the front of the Violation Ticket with a copy of the ticket and fill out a Notice of Dispute form.

NOTICE OF HEARING

You will receive a notice in the mail of the time and location of your hearing.

Note: If there is no address on the front of the ticket it may be invalid. You should go to a Provincial Court Registry, a Government Agent's office or a Motor Licence office and file a dispute based on the lack of an address to dispute as well as your objection to the ticket.

2. THE OFFENCE NOTICE

The Offence Notice is issued for parking or non-moving violations. The Offence Notice is given by the Municipality where the offence occurs.

Penalty: A fine, which increases as time passes to encourage early payment. If the fine is not paid it is possible that a summons will be issued and you will be required to attend court. The amount of the fine and when it is due is stated on the ticket.

To Dispute:

Go to City Hall and follow the procedure described by the clerk.

If the Offence Notice was given in Victoria, request an investigation form which sets out the reasons for the dispute. If the Head Commissionaire decides that the Offence Notice was properly given and you still want to dispute this Notice then you should request a hearing. The hearing will be held in Traffic Court.

3. APPEARANCE NOTICE, PROMISE TO APPEAR, SUMMONS

A person who is charged with a Criminal Code offence, like impaired driving, or dangerous driving will be given a document requiring the person to attend court. That document may be called an Appearance Notice, a Promise To Appear, or a Summons. It is an offence to fail to appear in court at the time stated in these documents. In addition, a warrant can be issued for the arrest of a person who fails to attend court as required.

Besides requiring a person to attend court, all three documents may require a person to go to a place where they can be photographed and fingerprinted. It is also an offence to fail to attend for fingerprinting and photographing.

Because of the serious nature of the cases where a person is given an Appearance Notice, Promise To Appear or a Summons, it is best to consult a lawyer for assistance with a defence.

4. WHAT IF YOU CAN'T MAKE YOUR HEARING?

If you fail to appear for your traffic ticket trial you will be found guilty. If, before the date of the trial, you realize that you will not be able to attend, contact the Cashier at the Provincial Court Registry to arrange a new date. You may have to appear in court to fix a new date. A trial date is rarely reset after you have failed to appear. Only in very special circumstances, where you have very good reasons for not showing up, will a new date be set.

IV. PREPARING FOR YOUR HEARING

IN PREPARING FOR YOUR HEARING, your reasoning process should go something like this:

(a) Did you do the act prohibited or fail to do the act required by law?

(b) If so, was there a reasonable excuse?

If you are representing yourself, there are a number of things you should consider.

1. WHAT IS AN OFFENCE?

Offences (or violations) are found in statutes, regulations or by-laws. These laws must be properly passed or enacted by the particular government body responsible -- whether it be Parliament, a legislature, a cabinet or a municipal council.

The law must be validly in force at the time the offence is said to have taken place in order for you to be convicted. If, for example, you were charged with an offence that had not been properly passed by legislation when the charge was laid, you could have the charge dismissed.

2. HOW DO YOU OBTAIN A COPY OF THE RELEVANT LAW?

It is important to find out the exact wording of the law you are said to have violated.

(a) In most cases the law will be the provincial Motor Vehicle Act which can be found at a library or purchased at:

Crown Publications
521 Fort Street
Victoria, B.C.
V8W 1E7

Most violations of the Motor Vehicle Act are found under Part III of the Act, which lists a variety of traffic rules drivers are required to obey.

(b) If you have received a Parking Ticket (Offence Notice) in Victoria, the violation will be found in the City of Victoria Streets and Traffic Bylaw No. 92-84. Contact City Hall to obtain a copy of the By-Law.

(c) If you have been charged with a violation of a federal statute like the Criminal Code of Canada, the offence will be a serious one. Seek legal advice before you try to deal with this charge on your own.

3. HOW TO UNDERSTAND THE MEANING OF THE LAW?

(a) Reading the Section

In many cases the wording of the offence will seem quite straightforward. For example, under section 129 of the Motor Vehicle Act, a driver is required to stop his vehicle when a "red light alone is exhibited at an intersection". The law seems quite clear: drivers must stop at red lights. The words "driver", "stop" and "intersection" seem self-explanatory.

But in some cases the wording of the offence will be unclear or ambiguous. Sometimes you will have to check the "definition" section of the Act , Regulation, or By-Law (usually found at the beginning of the relevant part) to help you understand the meaning of the offence.

For example, section 119 of the Motor Vehicle Act sets out a number of basic definitions, including the following terms:

"driver" means a person who drives or is in actual physical control of a vehicle;

"intersection" means the area embraced within the prolongation or connection of the lateral curb lines, or if none, then the lateral boundary lines of the roadways of the 2 highways which join one another at or approximately at right angles, or the area within which vehicles travelling on different highways joining at any other angle may come in conflict;

and, for the purposes of this definition, "highway" does not include a lane or way less than 5 m in width separating the rear property lines of parcels of land fronting on highways running more or less parallel to and on each side of the lane or way;

"stop" or "stand" means,

(a) when required, a complete cessation from movement; and

(b) when prohibited, the stopping or standing of a vehicle, whether occupied or not, except when necessary to avoid conflict with other traffic or to comply with the directions of a peace officer or traffic control device.

When you think about it, the offence set out in section 129 of the Motor Vehicle Act may not be so straightforward. The definition sections should be checked for even the most simple offences because a careful reading may often suggest a defence. The everyday meaning of simple words such as "stop" or "stand" can also alter according to the context in which they are used.

One of the basic rules about understanding the law is just this: do not take anything for granted. Carefully read the words of the offence in their context with the definition sections in mind.

(b) How the Courts Read the Section

Because the law is often unclear, it is up to the courts to decide how the law applies to individual cases. Judges or Justices of the Peace interpret the law and many of their decisions are published in the form of case reports. One of the jobs of a lawyer is to research these case reports to discover interpretations that will assist a client's case.

If you are having difficulty understanding the wording of an offence, contact a lawyer or your community law office for some help in interpreting the section.

4. WHAT OTHER KINDS OF INFORMATION WILL HELP THE COURT DECIDE IN YOUR FAVOUR?

(a) Documents and Photographs

Your ticket specifically sets out the offence you must answer and therefore it is important that you bring it with you to your hearing.

If you have been charged with an offence concerning your driver's licence, car registration, or insurance card, make sure you bring these documents to the hearing if they are available.

Other written materials may also help your case.

For instance, an inspection certificate or the written opinion of a qualified mechanic may be useful to defend charges of driving with a burnt-out headlight or bald tires.

If you are charged with failing to wear a seatbelt, you might provide the court with a doctor's certificate which shows that you are unable to wear a seatbelt for medical reasons.

And finally, it is occasionally useful to provide a photograph, map or diagram of the scene of the offence to help describe what happened.

(b) Witnesses

If you are aware of any witnesses who have personal knowledge of what happened at the scene of the offence, ask them to attend court to speak on your behalf.

If you want to make sure that they appear for the hearing, you may issue them with a subpoena.

A subpoena is a legal document which requires a witness to come to court. To subpoena a witness, go to the Cashier at the Provincial Court Registry on the Main Floor of the Law Courts at 850 Burdett Avenue, Victoria. Tell the Cashier the name and address of the witness and your court date. Once the subpoena has been filled out, a Justice of the Peace will sign it at the Cashier's wicket. Take the subpoena downstairs to the Sheriff's office and the Sheriff will serve your witness with the subpoena. There is no charge for this service. Allow the Sheriff's office several weeks before your hearing to serve this document on the witness.

V. YOUR HEARING

1. THE COURTROOM: WHAT TRAFFIC COURT LOOKS LIKE

In Victoria and some other B.C. communities, a specially appointed Justice of the Peace has been given the powers of a Provincial Court judge to sit in Traffic Court and decide minor cases.

The Justice of the Peace sits at the highest point in the courtroom facing you and is referred to as "Your Honour". The Court Clerk sits directly beneath the Justice of the Peace at a long table. The Court Clerk has your file and will hand any necessary documents to the Justice of the Peace.

The peace officer who gave you your ticket will sit at the far end of the long table. When your case is called, you will sit to the left of the officer, facing the Justice of the Peace. If you are calling a witness, the witness will sit to your left at a separate table.

JUSTICE OF THE PEACE

COURT CLERK

WITNESS

YOU ------------------------ PEACE OFFICER

PUBLIC SEATING

2. THE HEARING ITSELF: WHAT HAPPENS

On the day of your hearing, go to Traffic Court at the Law Courts, 850 Burdett Avenue, Victoria, and check to see that your name is on the list in the corridor outside the courtroom. If your name is not there then check with the Court Registry office.

In court, everyone stands when the Justice of the Peace or Judge enters the room. When the Court Clerk calls out your name, go to the front of the courtroom and introduce yourself. The peace officer who gave you your ticket must also be there to act as prosecutor.

You will be asked by the Justice of the Peace if you will be calling any witnesses. Your witnesses will be asked to leave the courtroom while the officer testifies. When it is the turn of the witness to present evidence on your behalf, the witness will be called to come into the courtroom.

After the Justice of the Peace reads out the charge, the hearing begins. This is the usual order in which evidence is presented:

1. Peace Officer is sworn in and testifies

2. You are given the opportunity to cross-examine the officer

3. You may call and question any witnesses to speak on your behalf

4. The peace officer may cross-examine your witness

5. You may choose to be sworn in and testify

6. The peace officer may cross-examine you.

When all of the evidence has been presented, the Justice of the Peace will ask if either of you has anything further to say. At this point neither you nor the police officer is allowed to introduce new facts. All of the facts concerning the offence should have been explained during the earlier testimony under oath. Any statement you make at this stage should simply summarize the evidence already presented and reveal why you think the traffic ticket was unfair.

When both sides have had their say, the Justice of the Peace will make a decision. In cases where complicated legal arguments are presented, the decision may be "reserved" or delayed for weeks or months while the Justice of the Peace considers the verdict carefully. If this happens, the date when the decision will be given will be told to you at the end of the hearing.

Photo Radar Tickets: If you are attending a hearing to dispute a photo radar ticket you should be aware that the officer who signs the violation ticket is not required to attend the hearing. Instead, the officer completes a Certificate, outlining the details of the offence, which is presented by crown counsel to the court as evidence of the offence. If there are questions that you want to ask the officer as part of your defence, you may ask the court to have your case adjourned and require the attendance of the officer for cross-examination. As it is up to the court to decide if this is appropriate in the circumstances, you should be able to provide reasons to the court as to why you require the officer's attendance.

You will be given a copy of the Certificate at the hearing and a chance to review it. You can request the Certificate in advance of your hearing date by contacting the crown counsel office at 387-4481. You should examine the Certificate carefully to ensure that it has been properly filled out. Any errors may not be obvious in which case you may wish to consult a lawyer and if you receive the Certificate on the day of the hearing you may ask the court for an adjournment of the hearing for this purpose. It is up to the court whether or not to grant an adjournment so you should be otherwise ready to proceed.

3. PRELIMINARY OBJECTIONS

At your first appearance in court , there are arguments which you may be able to present . These are relatively rare. They are technical arguments about the validity of the offence set out on the ticket or the form of the ticket itself.

For example, perhaps the description of the offence set out on the ticket does not accurately describe the law you are said to have violated.

Schedule 2 of Regulation 89/97 of the Offence Act sets out a series of shortened words or expressions that may be used to refer to their corresponding offence section in the Motor Vehicle Act. The expression "unnecessary noise" is considered to be an acceptable description of the offence set out in section 7A.01 of the Motor Vehicle Act Regulation (26/58).

If your ticket reads: "necessary noise" you may be able to argue that this is not an offence "known to law" (that is, it won't be found in the Motor Vehicle Act or any other Act because the word "unnecessary" rather than "necessary" should have been used). If your argument is accepted, the Justice of the Peace will dismiss the charge there and then.

Look at your ticket carefully. If the peace officer has neglected to sign it, you may argue that the document is invalid and ask for the charge to be dismissed as well. These arguments are more likely to be successful if the person who gave the ticket is not in court (as in most Offence Notice parking ticket cases). If the person who gave the ticket is there, the Justice of the Peace may allow him to amend or correct the ticket, and in such cases technical arguments are rarely successful. However, if the person who gave the ticket is permitted to amend the ticket, you may be granted an adjournment if you have been misled by the error and prevented from preparing a proper defence.

Preliminary objections of this nature are complex and you should obtain some legal advice before presenting your argument to the court. If your ticket has been improperly filled out in other ways, you may have further defences which we will discuss a little later.

4. WHAT THE PROSECUTION HAS TO PROVE

At your hearing, the prosecution must begin by giving the court evidence showing that you committed the offence. If, when the prosecution has finished giving evidence, parts of the evidence required are missing altogether, you may be able to ask the Justice of the Peace to dismiss the charge right away before you have either to question the peace officer or to tell your own version of the story. But be aware that, if you ask for the charge to be dismissed at this stage, you will lose your chance to cross-examine the police officer.

Sometimes it is hard to resist having the chance to explain your side of the story. But often it is to your advantage to point out the flaws in the prosecution's case first, then wait to see if a defence or rebuttal is necessary. Questioning the peace officer may give him a chance to clarify or correct the information before the court. And if you testify yourself, you run the risk of filling in the missing details or correcting the mistakes yourself.

In the following sections we will examine what kind of basic information the prosecution must present to the court.

A. The Burden of Proof

(a) Proof Beyond a Reasonable Doubt

The prosecution has the burden of proving beyond a reasonable doubt that you committed the offence set out on your ticket. You need prove nothing. It is not up to you to prove you did not commit the offence; you will be acquitted of the charge if the Justice of the Peace has a reasonable doubt about whether the offence took place.

If the peace officer or commissionaire who gave the ticket (the prosecution) fails to show up for the hearing, the charge will be dismissed. Frequently the peace officer does not attend court and therefore it is often worth disputing a ticket.

(b) Reversing the Burden of Proof

In a few offences, you should be aware that the responsibility placed on the prosecution to prove its case undergoes a slight variation. In these cases, the responsibility shifts to you to disprove the offence, once the prosecution has presented its basic story.

For example, under s. 80 of the Motor Vehicle Act, you must produce evidence that you are validly licensed or insured in cases where you are charged with driving without a license or insurance. In court you will be required to produce a valid up-to-date driver's licence or insurance card and registration.

Another example is s. 83 of the Motor Vehicle Act which holds the owner of a vehicle responsible for a driver's violation unless he proves that the driver was not authorized to use the vehicle or the registered owner was not the real owner.

Unlike other speeding situations, as the registered owner of the vehicle in question you are liable for the offence even if you weren't the driver. As the owner you can avoid liability where someone else was driving if you can establish either of the following: 1) the person who was, at the time of the contravention, in possession of the motor vehicle was not entrusted by you with possession; or 2) you exercised reasonable care and diligence in entrusting the motor vehicle to the person who was, at the time of the contravention, in possession of the motor vehicle. In other words, if you can establish that someone used your car without permission (eg. it was stolen), then you as the registered owner will not be liable.

You may also avoid liability if the driver agrees to take responsibility for the offence. This is called "nominating" the driver and nomination forms are available from ICBC. Both you and the driver must sign the form. The authorities will then attempt to serve the nominated driver with the violation ticket and if successful will discontinue procedures against you. If the driver cannot be located then you will remain liable for the offence. If you, as the registered owner of the vehicle, plead guilty to the offence you will have to pay a fine but no penalty points will be assessed against you. If you were not the driver and the driver agrees to accept responsibility for the offence, the driver will have to pay a fine and three penalty points will be added to his or her driving record.

B. The Elements of an Offence

(a) Three Fundamental Elements

In addition to proving that you committed the act set out on the ticket, the prosecution must in every case prove the following:

IDENTITY - the peace officer must identify you in court as the person who committed the offence.

JURISDICTION - the peace officer must state that the offence occurred within the jurisdiction of the court. The peace officer must state in court the place (street address, municipality, and province) where the offence occurred.

TIME - the peace officer must state the date and time when the offence occurred.

As we have mentioned, the prosecution presents its case first and it is important for you to listen carefully to make certain that each of these elements is proved. If one or more fundamental element is missing, you should point this out to the Justice of the Peace at the end of the prosecution's case, asking that the charge be dismissed. Make sure that you do this before you begin to tell your side of the story. In telling your story you run the risk of "filling in the gaps" in the prosecution's case, and the Justice of the Peace may no longer be able to find that a fundamental element is missing.

(b) The Specific Elements of an Offence

It is up to the prosecution to provide enough details to show the court that the offence stated on your ticket occurred. Each offence is made up of various components or elements. The prosecution must provide evidence to support each of these elements.

For example, general speed limit provisions are found under s.146 of the Motor Vehicle Act:

146(1) Subject to this section, a person shall not drive or operate a motor vehicle on a highway in a municipality at a greater rate of speed than 50 km/h, and a person shall not drive or operate a motor vehicle on a highway outside a municipality at a greater rate of speed than 80 km/h.

If you were given a ticket for travelling at the rate of 100 km/h in a 80 km/h zone, the prosecution must prove, beyond a reasonable doubt, the following elements:

1. That you (you must be identified in court)

2. were driving or operating (i.e., not a passenger)

3. a motor vehicle (description provided)

4. on a highway (exact location and description)

5. outside a municipality (exact location)

6. at a greater rate of speed than 80 km/h (i.e., 100 km/h by visual and/or radar estimation).

A peace officer can rely on two different types of evidence to prove that you were speeding:

(1) personal visual estimation and

(2) radar machine readings.

It is rare for an officer to rely on radar evidence alone. Usually the officer presents evidence to the court that:

1. he has training or experience in the visual speed estimation of moving vehicles

2. his estimates are reasonably accurate

3. he had an unobstructed view of your vehicle and had it in sight at all times

4. he followed it over some distance reasonably closely.

If radar evidence is introduced, be sure the officer gives evidence about whether:

1. he has taken an accredited course or has experience operating the radar machine

2. that particular machine, when properly calibrated, was capable of accurately registering the speed of a motor vehicle travelling on a highway

3. that particular machine was in good working order

4. the radar machine was aimed at your vehicle and not someone else's.

In order for a peace officer to give opinion evidence of this kind, he must have special experience or training. Listen to the officer's story and ask yourself if he has provided the court with enough information to reveal his background in judging speed and to prove the elements of the offence under s. 151(1) of the Motor Vehicle Act.

Ask yourself: would a person unfamiliar with the situation be able to reconstruct the story based on the officer's and any other prosecution witness' testimony?

The Justice of the Peace will be listening to these details without any prior knowledge of the case. If the peace officer is vague about where his observation point was, or the layout of the scene, or if he has failed to mention an essential element of the offence, point this out to the Justice of the Peace and ask for the charge to be dismissed. Make sure that you make this request before deciding to give evidence on your own behalf and be cautious about what questions you ask the officer. As we have stated before, often your evidence can fill in the gaps in the prosecution's case and give the Justice of the Peace the necessary evidence to convict you.

The evidence that the prosecution presents to the court must be consistent with the information set out on the traffic ticket.

As we have suggested, an error concerning the nature of the offence or the form of the ticket may allow you to make a preliminary objection which will get the charge dismissed.

But sometimes there will be a technical error on the face of the ticket which affects the prosecution's ability to prove the fundamental or specific elements of the offence. For example, the date or location may be wrong. Your name may be misspelled and your identity thus put in doubt. If the prosecution fails to catch these errors and presents evidence to the court which either confirms the error or is inconsistent with the written ticket, draw these errors to the attention of the Justice of the Peace after the prosecution's case is finished. In most cases, the prosecution will be allowed to amend the ticket to accord with the facts. But if the error is misleading, or prevents you from answering the charge properly, you may be able to get an adjournment (a later hearing date) which will give you a chance to reconsider your defence.

If the ticket is full of errors, the Justice of the Peace may dismiss the charge because the errors raise some doubts about the competence of the peace officer at the time the ticket was made out.

5. MAKING A CASE FOR THE DEFENCE

If, at the end of the prosecution's presentation, you have been unable to detect any errors or missing elements or, if the Justice of the Peace disagrees with your request to have the charge dismissed on those grounds, it will be up to you to provide either an alternative version of the facts or a legal defence to the charge.

A. Your Version of the Facts

You can present your version of the facts in two ways: by questioning the officer and any other prosecution witness, casting doubt on their perception or memory of the offence, or by testifying or bringing witnesses to court to support your alternative version of the facts.

(a) Questioning the Peace Officer

You have the right to ask the officer and any other prosecution witness any relevant questions about the offence. Remember at this stage you are not permitted to make your own factual statements or legal arguments. If you choose to testify, it must be under oath after the prosecution witnesses are finished.

Usually the peace officer is the only witness for the prosecution. If he has given evidence about all the elements of the offence try to get him to admit that your version of the facts is possible.

Question him about the details:

how good is his visual estimation and radar training and experience,

how carefully did he test the radar machine,

how might he have picked your car out of a crowd of other vehicles,

how good is his memory,

perception,

wasn't it a rainy day, a dark one, failing light?

It may very well be best to confront the officer squarely with your version of the facts, especially if he has no notes and finds it difficult to remember anything except what is written on the ticket itself. Ask questions like this: "Isn't it true that..." or "I suggest to you that things happened like this...". If you do not get a direct answer to your question, do not be afraid to repeat the question until he has answered it to your satisfaction.

(b) Questioning Your Own Witnesses

At the beginning of the hearing, advise the Justice of the Peace if you will be calling a witness to testify.

If the witness has not yet shown up and you have subpoenaed him, you are entitled to ask for an adjournment until another date or at least a brief delay in the case while you attempt to locate him.

If the witness is already present in the courtroom, there will probably be an order excluding him from the hearing (he can step into the corridor) while other testimony is heard. The purpose of this is to avoid having one witness influence what another witness may have to say.

It is a good idea to have reviewed the facts of your case with your witness before the actual hearing date. He should be prepared to relate his recollection of the events in a clear, orderly fashion.

At the hearing itself, your witness will be placed under oath and you will ask general questions about what took place. Let your witness do most of the talking. Make sure that you do not ask "leading questions", i.e., those which shape the answers by the kind of questions you ask. For example, you don't ask: "I wasn't speeding was I?" You might ask instead: "How fast was I going?" Above all, your witness should be concise and stick to the point. The Justice of the Peace is only interested in the facts and will become impatient if, during the questioning, you or your witness try to introduce arguments and irrelevant details. When you have finished questioning your witness, the prosecution then has the opportunity to cross-examine, i.e., to ask questions undermining or clarifying your witness' testimony.

Except in a case where the burden shifts to you [see the section "reversing the burden of proof"above], you are not required to take the stand and testify on your own behalf. The evidence presented by your own witness may be enough to explain your version of the facts to the court. Or you may be able to win your case simply by pointing out the defects in the prosecution's evidence or casting doubt on his testimony.

However, in cases where the prosecution has made a complete and clear presentation, it may be wise for you to testify under oath. Tell your story in a concise and logical way. You may be allowed to refer to your notes to help you recall the events. Save your legal arguments for later.

Be prepared to be cross-examined by the prosecution. The prosecution's objective will be the same as yours had been when you questioned him or his witnesses. He will try to cast doubt on your perception and memory of the events and may even imply that your statements are not totally honest. Be careful of sly questions. For example, the speed limit may be 50 k.p.h. The officer may ask: "If you weren't doing 60 k.p.h., how fast were you going?" You answer: "Oh, only about 55 k.p.h." You will still be convicted of speeding.

B. Legal Defences

When all of the witnesses have finished their testimony, you and the prosecution are given the chance to sum up the facts and make any legal arguments.

It is difficult to generalize about the variety of possible legal defences to traffic violations. Many defences have been accepted by the courts and published in the form of case reports. Other defences can quite literally be the product of your own ingenuity and imagination.

As we have already mentioned, a close examination of the statute, regulation or by-law under which you are charged may reveal that your actions do not fit exactly within the wording of the offence and, in particular, the definition section. For example, many offences under the Motor Vehicle Act occur on a "highway": the definition section states:

"highway" includes every highway within the meaning of the Highway Act, and every road, street, lane or right of way designed or intended for or used by the general public for the passage of vehicles, and every private place or passageway to which the public, for the purposes of the parking or the servicing of vehicles, has access or is invited.

The offence of driving without due care and attention must occur on a "highway" as defined by the Act. If, for instance, you were driving on a private driveway or even the parking area for an apartment complex, you might have a legal defence to the charge.

Sometimes the law itself provides you with a lawful excuse for your actions, or specifies certain exceptions to the rule which may apply to you. Take a close look at the wording of the offence to see what excuses or exceptions are lawful. If you are charged under s. 128 of the Motor Vehicle Act for example, you will note that you are required to stop for a yellow light unless the stop cannot be made safely. If you can present evidence that a car was following you too closely to permit a sudden stop for the yellow light, you may argue that these exceptional circumstances create a reasonable doubt that you were able to stop safely.

(a) Absolute and Strict Liability Offences

One of the principles of criminal law is the concept that a guilty act must be accompanied by a guilty mind in order to merit a conviction. The offender must have known what he was doing and have intended to do it. But provincial traffic offences fall into the rather confusing category known as "quasi-criminal" in which this rule does not always apply. Some offences are called "absolute liability offences" and some are called "strict liability offences."

Sometimes the statute, regulation or bylaw will tell you whether the offence falls into one of these categories (i.e., "this is an absolute liability offence..."). But most often it is the courts which eventually decide which offences are "absolute" and which are "strict" liability.

Absolute liability offences are those in which your guilt is established once the necessary facts of the offence are proven by the prosecution. If you did it, you are guilty. You are not then free to argue that you were honestly mistaken or did not intend to commit the offence. There are very few absolute liability offences; usually they are only found in minor regulations which require firm enforcement for public safety or the good of society as a whole.

Strict liability offences are those in which you can avoid conviction by proving that you made an honest and reasonable mistake of fact and committed the guilty act without a guilty intent. In these kinds of offences, you must show that you took all reasonable care or acted with "due diligence".

Say, for example, you were charged under s. 221 of the Motor Vehicle Act with failing to wear a proper safety helmet while operating a motorcycle. A safety helmet is defined and regulations set out the required safety standards. At the hearing it is proved that the helmet you wore was below standard. You may testify that you had purchased the helmet at a downtown motorcycle shop and both the salesman and the label had represented that the helmet conformed to provincial safety standards. In your concluding argument you might point out that you took all reasonable care to conform with the law.

These special categories of offences are too complicated to explain fully here. But you do not necessarily have to be able to define and categorize the offence you have been charged with in order to defend it successfully. It is fairly safe to say that if you made a reasonable mistake or did not intend to commit the offence proved by the prosecution, you should take your opportunity to testify and explain the situation to the Justice of the Peace.

(b) Charter of Rights Arguments

The Canadian Charter of Rights and Freedoms has expanded the potential legal defences available to people charged with a variety of offences. In particular, sections 7 to 14 guarantee everyone certain legal rights, including the right to be informed of the specific offence charged without unreasonable delay and the right to a speedy trial. "Charter" arguments are complex. Seek legal advice before your proceed.

VI. CONCLUSION

THIS BOOKLET CANNOT PROVIDE you with an assortment of legal defences to match the variety of traffic violations which have been created by B.C. legislation. But "legal" defences are used in a very small proportion of traffic tickets which are successfully defended in our courts.

Most hearings are won on the facts. Did you do what the peace officer said you did? Did you slide through the stop sign, did you turn the wrong way up a one-way street, did you make a U-turn at an intersection?

If you understand courtroom procedure, and if you understand the basic idea that it is up to the prosecution to provide enough details to prove the offence against you, you have the basic tools for defending a traffic ticket.

ACKNOWLEDGMENTS

1984 Revised & Adapted by Judith Blackwell

Special Thanks to:

Her Honour Judge Cantelon

Glenn Gallins

Adrian Chaster

Rick Isaac

Don Cherry

1994 Revised Edition by Sandra Sarsfield

Special Thanks to:

Darcy Lawrence

Greg Johnston

Glenn Gallins

Rosemary Garton