Bill 52: The end of traffic court?

"Traffic Court" is the venue in which people fight speeding and other traffic tickets. Typically, you file a dispute and are given a date to appear in court before a judge or judicial justice of the peace.

Like the rules that apply to criminal cases, the disputant is presumed innocent and the Crown is obliged to prove its case beyond a reasonable doubt. The rules of evidence and the Charter apply to afford people the same rights as anyone accused of a crime. As such, if the officer does not show up, the Crown's case cannot be proven and the ticket is dismissed.

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If the officer does appear, then the disputant can test the officer's evidence by way of cross-examination. The officer is also obliged to provide full disclosure of the Crown's case in advance (e.g. notes, description of any speed measuring devices used, etc.). The disputant also has the right to silence, which includes not being required to disclose his/her case in advance.

This process may soon be eliminated in favour of an administrative system, much like that of the Provincial impaired driving laws. Bill 52 is coming up for third reading in the legislature and it abridges many of the traditional rights currently granted in traffic court.

It defines a whole new regime for prosecuting traffic violations, to be called "driving notices." No longer will there be a court appearance. Instead, a three-stage hearing process occurs before a one-person tribunal.

Stage one is the resolution conference, conducted by a representative of the superintendent of motor vehicles - the body that regulates driving in B.C. It is done in writing or by telephone (or both). Information from the disputant and the police officer will be considered and the superintendent may then: cancel a driving notice in clear cases of improper issuance; accept an admission (guilty plea) from the disputant and then offer to reduce the amount of the monetary penalty and/or provide the disputant with time to pay the fine; or advise the disputant of the procedure for an application to the board for a determination of whether the disputant committed the violation.

If the disputant chooses to apply to the board (i.e. dispute the allegation before a tribunal), then stage two occurs: a pre-hearing conference. The board conducts this conference by telephone to set parameters of the hearing and review lists of witnesses, written summaries of evidence and other information.

At the hearing itself, which can be held in person, in writing, by phone or videoconference, the board must consider all documents, evidence and testimony.

An obvious difference in this new procedure is the amount of time and effort it takes for a person to dispute a driving notice. A total of three hearings must be attended and certain work must be done in advance of the hearing, if required by the board.

Of concern is the standard of proof that will be required for a conviction. In analogous proceedings, such as those for 90-day, impaired driving suspensions, the standard of proof is "on a balance of probabilities" - is it more likely than not that the disputant committed the offence.

This is a much lower standard than the current, "proof beyond a reasonable doubt." Given that the wording in Bill 52 is similar the impaired driving legislation, I expect that it will be easier for the officer to prove that a violation has occurred, especially because cross-examination does not take place.

No doubt, this new system is being designed to save administrative costs and delays associated with traffic disputes. Court facilities, including judges and justices of the peace are not required, and the police officers do not need to take the time, nor travel, to attend court.

However, a number of traditional rights are being abridged. The public should consider whether this new system is an improvement on the current one and consider voicing their opinion to their MLA - soon - if they are opposed.

Greg Diamond is a lawyer at Double Diamond Law in Whistler, whose practice includes personal injury claims, impaired driving and other driving offences. He can be reached at (604) 938-0890 or gdiamond@ doublediamondlaw.com.

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