A recent CBC story shed light on a shameful practice in other provinces involving speeding tickets. Apparently, despite the fact that speeding tickets are issued on a regular basis and can have devastating consequences for drivers, some police forces in Canada have done away with the need to perform calibration checks of RADAR devices before court.
But checking RADAR calibration and functioning is fundamental to good practice in issuing speeding tickets. And here’s why.
Why calibration checks are important
When a police officer issues a traffic ticket, the officer is essentially charging the person with an offence. The ticket itself is the charging document and the person is informed of the charges by way of being served. And when the Crown charges a person with an offence, those charges have to be proven by the Crown, beyond a reasonable doubt.
Speeding tickets are no different than any other offence. While they may not be criminal offences, the procedural protections that exist in a criminal trial, including disclosure, the burden and standard of proof, and the right to cross-examination all apply in a traffic ticket case.
The reason for this is obvious: the consequences of a speeding ticket can be severe. In British Columbia, an excessive speeding ticket can run a person $368 in fines, three driver penalty points, insurance increases, and a high-risk offence designation which carries with it the driver risk premium. Even a regular ticket still has points and fines associated with it. And all traffic ticket convictions are recorded on your driving record… forever.
Burden of proof in traffic court
If you don’t want a permanent black mark following you around for the rest of your life, then disputing a ticket is both sensible and appropriate.
But because the burden is on the prosecution to prove the case in traffic court, that comes with some pretty high standards. The first is the requirement to prove the case beyond a reasonable doubt. And while in some cases the speed might be so obviously over the limit that anyone could agree the driver was speeding, many cases are not so obvious.
So to simply satisfy the requirement that the RADAR is working correctly by a comparison to a visual estimate is not good enough.
How speed enforcement works
I recently had the opportunity to take the same training that police get, from a qualified Laser and RADAR instructor, in police speed enforcement and visual estimation. This has come in very useful in traffic court, as I learned secrets of how the speed estimation is taught and how the officers develop their so-called margin of error.
The process is simple. The police officer stands on the roadway with the instructor. The police officer makes estimates of passing vehicles on that roadway, and the instructor measures them with the Laser or RADAR device. The officer estimates a minimum of 40 vehicles, recording the estimated speed and the measured speed on a chart. Then, the margin of error for each is calculated and then averaged out for the officer’s official margin of error.
This is done only once in their careers, only on one road, only in one set of weather and lighting conditions. There is no separate class for estimates in the dark, on curves, on roads with various speed limits, in heavy traffic or in light traffic, in the rain, or in direct sunlight. One time, in only one set of conditions. And that magic number arrived at through 40 trial and error guesses is their official number for their career.
Honestly… it’s a bunch of baloney. Speed estimation training is about as reliable as me saying that I am a wine connoisseur because one time I went to a wine tasting event.
Oh, and in case you were wondering, my margin of error was about +/-4 kilometres per hour most of the time.
Purpose of RADAR devices
Having had the training and seen the flaws, I can safely say that this is not a reliable method to prove beyond a reasonable doubt that a particular driver, on a different road, at a different time of day, in different traffic conditions, with different weather and lighting, was speeding based solely on an estimate.
So the device plays a critical role in the prosecution of the offence. As any traffic cop worth his salt will tell you, the RADAR or Laser is a tool of corroboration to ensure they did not make a mistake in their visual estimation. Problem is, if calibration checks are not properly carried out on the device then it cannot corroborate anything.
Look – there are plenty of other times in our criminal justice system where records calibration checks are required. In impaired driving prosecutions, the Crown has to disclose a whole laundry list of material related to the calibration of the breath tester at the time the test was taken. Proper procedure must be followed or the Crown is not entitled to rely on the readings as proof of the blood alcohol concentration.
Even in cases where there are not offences being charged, like Immediate Roadside Prohibitions, the police are still required to submit records relating to the calibration of the ASD used to take the test. And that doesn’t even involve the same procedural safeguards that apply in a traffic court hearing.
Importance of calibration checks
The practice of conducting calibration checks of RADAR devices before using them to take enforcement action, given the consequences and given the way things can otherwise go wrong, is simply fundamental to the fairness of the process. If you want to have any confidence in the readings, the absence of this evidence cannot get you to that point. This evidence is important in the Crown meeting its standard of proof: beyond a reasonable doubt. Without this information that standard, in my opinion, cannot be met.
If the BC RCMP or BC police forces want to copy the practices of their cohorts in other provinces, they should think twice. There are lawyers like me ready to make this into a fight for trial fairness, as it properly should be.