Dec 8 2016 – Kevin Yaworski – WiseUpWinnipg – http://wp.me/p1fJaD-Pc
This is regarding recent trials in MB Summary Convictions Court. This also known as Traffic, Parking or Bylaw Court. It has also been referred to as Kangaroo Court by some of the accused that have gone through there and by attorneys that normally work in the higher courts. This based on the often wacky form of Justice that is served there.
This involves a few cases but there is transcripts and accused that can provide affidavits or testify of similar behavior by some other Judicial Justice’s of the Peace (JJP’s), Crown Attorneys and their Witnesses that is unfair if not unlawful.
One can only think that there is a motive behind this or they are under pressure due to the extremely large volume of simple traffic tickets from Winnipeg being pushed through this court. A much higher number per capita then elsewhere in Canada and much higher percentage contesting than normal or expected. Per year there is up to 150,000 Photo Enforcement; 55,000 Officer issued and 100,000 parking alleged offenses. The vast majority of these issued in what could be argued are artificially reduced speed zones, missing or confusing signs and other traffic engineering deficient locations.
One case was for alleged speeding in Grant Park High School School Zone and issued by Xerox (ACS Public Sector Solutions Inc. (ACS)) Photo Enforcement with Traffic Safe Solutions Inc. (TSS) Operator. Alleged speed of 63kph on a four lane divided regional road with lowered speed limit of 50kph. I represented the vehicle owner and a conviction was delivered.
There was over 7 months delay by the Crown for date of alleged offense to trial date plus a two week delay at the end requested by myself for a family medical matter. I choose to not file a delay motion with charter 11b challenge in order to try and address some of the other abuses that have been occurring for many years in at least this court. Based on R v Grant, R v Segodnia, R v Jordan and others I think this unreasonable delay could be argued at trial or by filing motion (note added: Justice Toewes decision in R v Grant appeal came after postig this and he decided 18 months the ceiling even for simple traffic matters).
During this trial the Judicial Justice of the Peace (JJP) added verbal evidence not presented by the Crown which could be argued is a serious error. It could be argued they made other errors as well. I elaborate on this below and more info under: Canadian Criminal Procedure and Practice/Trials/Role of Trial Judge
I argued the photo showing vehicle travelling didn’t match location on offense notice or operator deployment notes. Based on my checking Google Street view and visibly visiting the location. Very large trees with residential housing and there is none in this zone on southside. During questioning the operator agreed in much of what I said about this zone including it not a residential area and that he was targeting the last few meters of the zone before Cambridge St. He said the camera zooms in a lot. Even then the large trees, residential and bus stop are not visible even when zooming in on Street View. The operator still insisted it was in the zone but no proof other than the questionable photo.
I argued Grant Park High School Zone was not a valid location for a school zone so photo enforcement was not permitted to operate there. I said it is a four lane divided regional road with high school with lighted and marked crossings… I provided a City of Winnipeg Public Works Department (PWD) engineering report prepared by certified engineers and approved by PWD Director stating it should be 60kph for safe and efficient traffic flow reasons including 85th percentile speed of 68 kph. The operator confirmed it was 4 lane divided with service roads beside (i.e. six lanes).
I forgot to give examples of Pembina Hwy and other regional roads which are only permitted to have 60k School Zones or several elemetry school zones that are on smaller roads and no reduced speed school zones. They set them up and target where they can issue more tickets not where there is the greatest safety risk. I also said it had High School Students with well lit and marked crossings which they should be very capable of crossing safely.
The JJP said “you know there is a daycare in that school right”
I defended this point but should not have had to. A Justice is not permitted to do this and is supposed to be impartial and unbiased. I said children under 10 or 12 are not to be left unattended without an adult so that is no reason to have a School Zone for a high school. More on this below.
Also when questioned the operator said he was trained four years ago plus the Crown couldn’t provide proof of this or the training and lidar device manuals etc… (they said a motion for 3rd party evidence required in advance). I emailed the Crown for these well in advance of trial but they ignored me until shortly before trial and said a motion for these needed but would not agree to an adjournment because it was less than two weeks before trial.
I raised several points that put into question the photo, speed limit, school zone, operator training and testing certificate. I reinforced this with caselaw including other traffic matter cases where the Crown failed to prove beyond a reasonable doubt but the JJP didn’t address these in their decision to convict.
I raised other arguments that were rejected by the JJP without reason other than I do not allow. Some of this listed below.
I believe the JJP made several errors and adding evidence stands out the most.
I am appealing this on several grounds regardless of the fact the Province is making it difficult by charging $35 plus as much or more for the transcripts (which are required) than the ticket costs. I will be asking to be reimbursed for my time off work and related costs and will rely on caselaw for this.
I am confident I will be successful and once this decision reversed I will make a formal complaint about this case and the others I have observed. Then I hope adequate measures are taken with this JJP and steps taken to prevent this from happening to others.
If this or similar has happened to you in court I suggest you do the same.
I can provide copy of transcripts if anyone needs and will share the appeal details and decision after the hearing.
Here is more details from my observations while waiting in court and during the trial for the matter I was representing.
Also see the following post of mine with info about even stronger caselaw to rely on now and should lead to these programs being shutdown elsewhere.
Quebec, Canada Court Strikes Down Speed Camera Program
Justice of the peace in Quebec, Canada strikes down photo radar evidence as unreliable.
I had to wait from 9am till 12pm to go to trial and heard this JJP railroad over many of the accused’s legal and charter rights even when they argued for them. She denied requests for reductions every time and wouldn’t give more than three months time to pay even for two different $560 tickets on Bishop DCZ with signage concerns (husband and wife).
I spoke to one of the accused while we waiting after the Crown sprung the officer notes on her right before trial for rolling through stop sign at 10 kph. She said she came to a complete stop in bumper to bumper traffic during rush hr. I explained and said if she wanted more time to to prepare defense to ask Crown for adjournment and why. She did but they denied.
I have seen WPS tickets where there was no disclosure until the Crown asked or at trial for officer to refer to. Same in R v. Segodnia and others. ACJ Judge Krah in R. v. Yaworski delay motion even said this grounds for at least adjournment but you could argue this is a breach of charter rights and it be dismissed. There is case law to rely on for this.
This JJP told the accused she had an hour to review it and that was enough and denied adjournment. The accused asked if she could appeal and was told this not the place to ask that.
Similar abuse for almost all others except one gentleman who got ticket in artificially reduced speed zone with poor signage and kindly asked Crown to use her discretion to dismiss. She entered reprimand with $25 court costs.
After hearing this and then seeing the JJP railroad everyone I thought about asking Crown for the same $25 offer as this gentlemen had got but decided to do the right thing instead of trying the easy route.
During the trial the docket was so full there was no room left on the large table the Crown had laid out rows of case folders on. The JJP even spoke to the Crown about 11:30 about remanding two cases with officers till the afternoon so the clerk and the her (the Crown) could have a break. I didn’t see any accused left unless they waiting outside. I assume there was none as they would have needed to consent. They didn’t leave so I assume they wanted to observe my trial. So the public paid for at least two officers to sit there all morning and at least part of the afternoon. One was a senior officer that the operator referred to as having trained him (over 4 years ago). My trial went to about 1pm and that didn’t leave much time before afternoon trials start at 2pm.
This and the abruptness of the JJP indicated she was frustrated, had already made up her mind and was the reason she was rushing my trial along and others before me. This likely the reason why she was not giving reasons when not allowing my questioning and not addressing most of my arguments in her decision.
Based on the JJP rushing and her being worried about Madam Clerk and Crown needing breaks before afternoon trials I didn’t feel I had time to argue the charter 11b unreasonable delay to go to trial of over 7 months even with out the two weeks delay I requested from original date of Nov 17th due to family medical matter. In R. v. Grant Judge Harvie said 4 to 6 months was reasonable time to go to trial. Appealed but not being hard till Feb 2017. In R.v. Segodnia (MBPC) Judge Devine said over 6 months is unreasonable for simple traffic matters to go to trial. R.v. Jordan said less than 18 months for non criminal matters at provincial court (e.g. simple traffic matters) and the accused is presumed to be prejudiced. For these reasons it could be argued there is no need for delay motion application with affidavit indicating how the accused was prejudiced. (note added: Justice Toewes decision in R v Grant appeal came after postig this and he decided 18 months the ceiling even for simple traffic matters).
There was also an unreasonable delay in sending out the notice of offense. It was to late to recall all the details and check signage etc…
There was no diagram with location of signs in this zone but they have provided for CZ, DCZ and WPS School Zone tickets. The operator and Crown in my case said they not required. I gave the Crown a copy of previous WPS School Zone ticket with officer notes and canned diagram (…2014 date) with notes added, signed and dated … 2015. I said I had second copy for the court but she said one was enough.
During my trial I asked operator if he issued a lot more tickets at this location (Grant Park High School School Zone) compared to others and he hesitated and said I don’t know while turning to look at the Crown. It was like he sinking and needed a lifeline. He knew he does as it well known this is one of the most deficient and aggressively targeted zones in Winnipeg. Even many professionally trained transit bus drivers have got tickets here and other artifucally lowered zones with deficeint signage. See CBC and CTV media coverage plus City of Winnipeg FIPPA requests online.
I asked if he got a bonus for more tickets and if he was required to complete a criminal record check but the JJP wouldn’t allow either and gave no reason.
I argued that there was no proof he was a designated peace officer other than it stating name of peace officer on the certificate that he signed and the offense notice says he is one which he also signed. Again the JJP would not allow this and gave no reason.
HTA offenses are Summary Convictions so fall under or are classified as Criminal but convictions are not generally added to ones criminal record unless serious.
Canadian Criminal Procedure and Practice/Trials/Role of Trial Judge
Canadian Criminal Procedure and Practice
Powers and Responsibilities of the Judge
Evidence before a judge are not facts. The judge has the power to hear evidence from which factual conclusions may be made.
The Judge may make inferences. These inferences must be logical conclusions drawn from the evidence before the judge at trial. They cannot be conjecture or speculation about potential evidence that has not be submitted before the court.
There are generally well known inferences, that a judge will make regularly such as the inference “that one intends the natural consequences of one’s actions [in] any … human activity, especially in light of the lack of evidence to rebut the inference.”
↑ Caswell v Powell Duffryn Associated Collieries Ltd  3 All ER 722
↑ R.v. Missions 2005 NSCA 82 at 21