The recent BC Supreme Court appeal decision in R. v. Wang, 2021 BCSC 1547 highlights the need to know what evidence you must present, what evidence you need to challenge and what presumptions the Court will generally make in an excessive speeding ticket trial.
Mr. Wang was stopped for excessive speeding, found travelling 150 kph in a 90 zone on the upper-level highway. The facts suggest he was travelling in a group of fast-moving vehicles, and he was the one in the distinctive green Porsche. His car was impounded, and he disputed the ticket.
At trial in Provincial Court Traffic, North Vancouver, he apparently represented himself. He argued that he was singled out. He argued that other vehicles were driving faster. He and his passenger testified that he got out of the way of the faster vehicles (but apparently then got in a pack of them), although this is not completely clear in the reported decision. He argued that there was no evidence of his speed. It seems his understanding was that there had to be some video or photo record. He argued that none of it could be right because the officer made a mistake copying the serial number of his Porsche. He argued that his flashy car was the reason he was ticketed.
The legal test for an appeal based on findings of fact can stand in the way of justice. Judges are allowed to be wrong. The legal test that the appeal court defers to the trial judge’s findings and inferences subject to a palpable and overriding error can allow innocent people to be convicted just because certain evidence did not come out or was incorrectly understood or characterized by the trial judge in a certain manner. But those are the rules of the game, so it is important to know what evidence to call. This is no less important in a speeding ticket trial.
Mr. Wang and his passenger failed to testify about his speed. They failed to make any challenge to the officer’s methods of calculating the vehicle speed. They mounted no challenge of the officer’s evidence about the speed he adduced as evidence when he testified. It appears from the appeal decision that the officer was not cross-examined.
It is entirely possible that Mr. Wang was innocent, that he wasn’t speeding and that the officer mistook his vehicle as speeding by acquiring the speed of a different vehicle on the highway. This was not properly put to the officer at the trial, and therefore it was not part of the consideration on the appeal.
The BC Supreme Court Justice dismissed the appeal, having concluded that there was no palpable and overriding error in the trial court’s findings of fact.
And the point here is this: although often people who are caught speeding are indeed guilty, even if you are innocent, if you fail to get out the correct evidence at your trial, you cannot assume that innocence will be enough. In other words, the rules we have in our justice system, for example, that you need to address the essential elements of the matter at the trial, must be followed, or you may be innocent and yet be convicted.
It might be viewed as self-serving, but instructive to point out that the results may have been different in this case if Mr. Wang had retained to defend him at trial a lawyer who deals with these types of tickets.