A Recent Traffic Court Appeal Ruling May Spell Problems for Dozens of Convictions

Today the BC Supreme Court released its reasons in the case of R. v. Singh. The BC Supreme Court allowed an appeal from conviction and, instead of remitting the matter for a new trial in traffic court the Supreme Court entered an acquittal. The reason for the acquittal was that there had been a miscarriage of justice.

This decision poses a significant problem for numerous traffic court convictions that have come before and since. And it may be that hundreds of traffic ticket convictions must be overturned based on today’s ruling.

Mr. Singh was convicted of using an electronic device while driving. He argued at trial that the officer who had testified in his case was not, in fact, the officer that had dealt with him and issued the ticket.

In support of his arguments, Mr. Singh presented a diagram to the court, which he drew while on the stand. He identified the various locations where police vehicles were parked and what the other officers did. At the end of the testimony, the diagram was not marked as an exhibit and it was not kept in the court file. It was lost completely for the record.

Mr. Singh appealed his conviction. On appeal, the Crown rightly pointed out that the appeal record was not complete as the diagram had been lost. The Crown rightly conceded that without a complete appeal record the appeal had to be successful and Mr. Singh ought to be given a new traffic court trial. The reason for this was because the diagram was not marked or entered as an exhibit, a miscarriage of justice had occurred and Mr. Singh did not have a fair shot at an appeal.

Miscarriages of justice are extremely serious, and if there is a pattern of such miscarriages, it is incumbent on Crown to stop them from continuing.

The problem with traffic court is that there is often no Crown prosecutor. Instead, there is a police officer who prosecutes the ticket. There is an exception in the Offence Act to allow for this. The police are not trained lawyers and are unfamiliar with courtroom procedure. And so they may not know that exhibits — evidence on which a defence or prosecution hinges especially — should be marked. And Mr. Singh was self-represented. He did not have the assistance of counsel in trial.

It may not be readily apparent to a traffic court Judicial Justice, either, that a certain document may have importance on an appeal. But it is better safe than sorry, as this case clearly demonstrates.

But it is also common, given the relaxed rules of evidence and truncated process in traffic court that these documents are not marked as exhibits. In fact, I have witnessed on numerous occasions an officer or a litigant in traffic court make a diagram on a whiteboard, which is then erased for the next portion of the testimony, or when another witness enters the courtroom. No effort is made to preserve the diagram as a piece of the evidentiary record.

And if I’ve seen this more times than I can count, I am certain that it is occurring even more often than that. Which means that there have been widespread miscarriages of justice, however innocently they occurred, in traffic court.

It is appropriate, given this ruling, for Crown Counsel to conduct a thorough review of all traffic court cases to determine how often this has occurred, and how many cases have resulted in convictions obtained in circumstances where there has been a miscarriage of justice. It may be that cases must be overturned and convictions quashed. But that is a fair price to pay for a properly functioning justice system.