Fixed photo radars: an automatic acquittal in Quebec?

The answer to this question is not obvious. However, it can be said that Judge Cimon’s judgment [1] not only caused much ink to flow, but also set a precedent in this regard. This judgment withdraws from the prosecution fundamental evidence enabling it to meet its burden beyond a reasonable doubt in order to obtain a conviction for high-speed driving. So, do fixed photo radars lead to automatic acquittal?

Fixed photo radar in Quebec: hearsay evidence

According to the Honourable Judge Serge Cimon of the Court of Quebec, the evidence collected by a fixed photo radar is hearsay evidence. As such, the finding issued following the offence was not personally verified by a police officer.

However, evidence collected by a fixed photo radar is not inadmissible if, during a speed reduction operation, a police officer positioned on the shoulder observes, with his own portable photo radar, the speeding violation. In these cases, he or she will determine the offence and may testify at a possible trial. In contrast, fixed photo radars cannot guarantee this reliability.

Clear legislation in Quebec

The law is clear on the admissibility of an offence report (finding) that can be used as testimony without the police officer’s presence in court. Indeed, the latter is admissible in evidence since the officer personally witnessed the offence committed [2]. A specialist lawyer‘s advice is therefore essential.

A “witness” who cannot testify

In the case of a speeding violation detected by a fixed photographic speedometer, the agent cannot testify that he or she personally detected the offence committed. Therefore, this evidence presented by the prosecution is illegal and inadmissible hearsay in evidence. The decision of the Honourable Justice Cimon is a call for the proper functioning of the administration of justice and the right to a fair and impartial trial guaranteed by the Canadian Charter of Rights and Freedoms.

Improve your chances of acquittal with a defence lawyer

The prosecution can therefore no longer use the evidence gathered by a fixed photo radar to avoid automatic acquittal. In doing so, it risks being ordered to pay the Court costs, which can be exorbitant during a trial. However, it is always possible for the prosecutor to improve his evidence in order to maintain the accusation and move forward in his efforts to obtain a conviction against you. In this case, it is highly recommended to consult a defence lawyer.

N.B. Recently, the Director of Criminal and Penal Prosecutions agreed with Judge Cimon’s arguments by not appealing the case [3]. It should also be noted that all cases based on evidence collected by fixed photo radar are currently pending, since the Director of Criminal and Penal Prosecutions (DCPP) must reassess them all, one by one.

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[1] Director of Criminal and Penal Prosecutions v. Bove, JC0B52, 2016 QCCQ 13829 (CanLII), accessed online January 6, 2017: http://www.canlii.org/fr/qc/qccq/doc/2016/2016qccq13829/2016qccq13829.html#_ftn35

[2] Code of Criminal Procedure, RLRQ c C-25.1, art. 62.

[3] Cathy Senay, ICI Radio-Canada, consulted online on January 6, 2017: http://ici.radio-canada.ca/nouvelle/1008178/radars-photo-preuves-dpcp-appel-jugement-cour-quebec-juge-serge-simon

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