Manitoba

Manitoba case arguing photo radar tickets violate Charter headed to appeal court

Man says photo radar creates reverse onus on vehicle owners to prove they weren't driving speeding vehicles

Posted: July 22, 2020

A Manitoba man has been granted leave to appeal his photo radar speeding tickets on the ground that the province's laws violate his Charter rights. (John Einarson/CBC)

The Manitoba Court of Appeal will consider the legality of photo radar tickets after allowing a man to appeal his tickets on the grounds they violate his Charter rights.

The decision, delivered on July 17 and written by Justice Holly Beard, says that the driver, Raymond Joseph Bernier, is not challenging the fact that a vehicle registered to him was caught going above the speed limit by a photo radar system.

Rather, he is arguing that the Highway Traffic Act — specifically Section 229(2), which deals with the ownership of a vehicle involved in an offence — violates the Canadian Charter of Rights and Freedoms. 

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In court, Bernier argued that he believes the legislation violates his Charter rights to the presumption of innocence, and his right not to be compelled to be a witness in proceedings against himself, the decision says.

Bernier was charged with speeding on two separate occasions after a vehicle he owns was caught by photo radar systems in 2016 and 2017. The photo evidence shows the licence plate of the vehicle, but doesn't show the driver, the decision says. 

At his trial, Bernier pleaded not guilty. Though he did not contest the facts, he argued that the existing legislation violated his presumption of innocence and that as a result, he should be acquitted.

The trial judge said that he was bound by a previous court ruling, where the court found that Section 229(2) of the Highway Traffic Act did not breach the Charter, the decision says. 

However, Beard found that Bernier did present a significant issue that should be examined, as thousands of photo radar tickets are issued every year. 

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Beard said she agreed there is a case that Section 229(2) of the act does make an owner of a vehicle guilty of a driving offence without proof that they were actually driving at the time, therefore creating a reverse onus on the accused to prove their innocence. 

No dates have been set yet for the appeal hearing.

The Manitoba government announced last November that it plans to review the effectiveness of photo radar programs used in Winnipeg, with a focus on how effectively photo radar is meeting safety objectives.