Winnipeg Free Press - PRINT EDITION
Judge tosses out traffic-camera ticket
But it wasnt due to Richard Hykawys polished legal skills. In fact, it was the judge who noted a problem with the prosecution and said he couldnt in good conscience convict Hykawy.
In a decision Wednesday, provincial court Judge Marvin Garfinkel threw out Hykawys Aug. 7, 2005 speeding ticket because the Crown had not properly presented evidence the camera that clocked Hykawy was correctly calibrated.
What Garfinkels surprising decision means for people with a photo speeding ticket is anyones guess at this point. Crown officials and police huddled Wednesday to discuss whether the decision should be appealed or if courtroom procedures can be quickly adjusted to meet Garfinkels concerns.
Winnipeg police strategic traffic operations Patrol Sgt. Randy Vertone said as far as police are concerned, its business as usual.
Hykawy said whatever happens, its a victory for the little guy.
Im kicking my heels, he said.
Im just Joe Blow, but I think people should not be judged by a machine. I will never accept them. Theyre a complete atrocity.
Hykawy, a 41-year-old customer-care officer with business software giant Convergys, said he challenged his ticket because he believed the camera at Pembina Highway and Bairdmore Boulevard incorrectly caught him doing 75 km/h in a 60 km/h zone.
I felt I wasnt speeding at all. I thought the camera was wrong.
Hykawy first argued the photo on his ticket showing his vehicles licence plate was inadmissible because it was altered by being blown up. Garfinkel disagreed.
Hykawy then said the evidence used by the Crown to show the cameras have been properly calibrated and tested were inadmissible because they were unverified copies of the original certificate, which is kept in a safe place by city police.
In the course of his submission, Mr. Hykawy displayed a skill for rhetoric, Garfinkel said in his six-page written decision. For example, he argued it could not be said who signed the certificates. He said for all we know it could have been Mickey Mouse. Another example, he argued if this were a murder trial, this evidence would be regarded as insufficient.
Garfinkel, in giving Hykawy the benefit of the doubt, didnt completely dismiss his argument. Instead, he found something else.
I find there are other issues that Mr. Hykawy did not raise, Garfinkel said. These issues came to my attention while I was reviewing the documents filed and emphasize the dilemma a judge faces during a trial with a self-represented litigant.
The dilemma is when and how should a judge go into the arena. In this case, in my opinion, there are obvious imperfections in the Crowns evidence, which require me to get into the fray in order to prevent an injustice occurring.
Garfinkel found the certificates were not admissible because they do not comply with the Highway Traffic Act, which outlines how photo-enforcement cases are to be prosecuted.
Specifically, the judge said the certificates did not properly identify the camera equipment tested and that they were unverified copies.
Hykawy said his victory should be an inspiration for anyone else fighting a photo speeding ticket.
Just because it makes the city money should not make it a legal premise, he said. People should not be swindled by cheap laws.
Text of decision
2007 MBPC 1 IN THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Mr. K. Parker ) For the Crown ) and ) ) Richard Allan Hykawy ) Mr. R. Hykawy ) Self-represented ) ) ) Reasons for Decision delivered ) on the 10th day of January, 2007, ) at the City of Winnipeg in ) the Province of Manitoba. ) MARVIN GARFINKEL, P.J.  This is a prosecution under the Image Capturing Enforcement
provisions of The Highway Traffic Act, which is commonly known as
the photo radar provisions. Mr. Hykawy is accused as the owner of a
vehicle which was photographed by the image capturing equipment of
speeding. He is a self-represented litigant. In September, 2005, he
entered a not guilty plea and set the matter down for trial. The
matter came before me for trial on September 12, 2006. Mr. Hykawy
again entered a not guilty plea.  In these prosecutions, the Crown proceeds by way of documentary
evidence. The Crown filed the following documents: 1. Three colour photographs of a black vehicle with Manitoba
license plate number DUV 558; 2. Statement of peace officer respecting image capturing
enforcement evidence, dated 2006/02/08; 3. Testing certificate of Byron Reginald Mills dated 29/04/05,
certified on February 7, 2006; re tested loop, clock and processor
frequencies; 4. Testing certificate of Joseph Keith Hydrochuk dated 31/07/06,
certified on August 4, 2006; re: line voltage and loop detector
(#1 6) inductance tested at camera housing plug connector; 5. Testing certificate of Darryl Ross dated April 6, 2006,
certified April 7, 2006; re film installation: 1) Unit Self-Test,
2) Unit settings correct, 3) Green Test, 4) Visually observe
traffic lights operational; 6. Testing certificate of Carsten Schwark dated April 02, 2006,
certified April 7, 2006; re: Film removal: 1) Green Test, 2)
Visually observe traffic lights operational, 3) Unit Self-Test; 7. Certificate of registration dated October 5, 2005, from the
Registrar of Motor Vehicles.
The Crown then closed its case.  The statement of the peace officer document shows the location
where the images were captured as 0823. This location code,
according to the document, corresponds to the intersection of
Pembina Highway and Bairdmore Boulevard, in a north direction in
the City of Winnipeg. The document also states that the speed limit
at this location is 60 km/h. and the speed of the vehicle was 75 km/h.  Mr. Hykaway, as a self-represented litigant, did some research
and presented to the Court copies of the relevant legislation being
section 257.1, 257.2, 257.3 and 257.4. Mr. Hykawy also presented copies of section 261(1.1).  Mr. Hykaway argued that the photographs do not show the license
plate of the vehicle clearly. He also argued that the third
photograph does not show anything to identify it as part of the
first two pictures. He argued that the Court cannot ascertain from
where this third picture came. However, later in his submission he
stated this third photo is definitely a blow-up and is an
alteration to the first two. He then argued that this third
photograph had to have been altered to enlarge it and that no
alteration of the pictures is permissible.  The Crown responded to this argument by saying that the first
two photos have "a dialogue box" from the unit and the third photo
is only an increase in size of a portion of the first two photos.
The three photos are appended or attached to each other and should
be admissible.  During the trial, I made it clear that I could see the license
plate number in the first photo. In that photo the vehicle appears
to be black in colour. In that first photo in the upper left
background just above the vehicle there appears to be a drainage
opening in the curb at the intersection. This is also clearly shown
in photo number 3. I am satisfied the third photo is admissible as
part of photo number 1 albeit an enlarged part. I am not aware of
this being an alteration of photo number 1. It is its own image.  My ruling is that the three photographs are admissible.  Mr. Hykawy objected on many grounds to the certificates being
admitted into evidence. I summarize his objections as follows: a) He would like the testers to be cross-examined as to their
qualifications for testing; b) The testing certificates are not notarized; c) It is not proven that the certificates were signed by the
testers; d) He argued he is entitled by virtue of the Charter to question
any evidence brought against him.  In the course of his submission, Mr. Hykawy displayed a skill
for rhetoric. For example, he argued it could not be said who
signed the certificates. He said for all we know it could have been
Mickey Mouse. Another example, he argued if this were a murder
trial, this evidence would be regarded as insufficient.  The Crown Attorney made an oral submission in response to the
arguments raised by Mr. Hykawy. However, he was not able to be
precise. For example, he made reference to a decision of Magistrate
Sundstrom ruling with respect to photographs being appended.
However, he did not provide the name nor the citation.  Because the Crown was taken unawares by the arguments raised,
in fairness I thought it would be appropriate to allow the Crown
Attorney the right to make a written submission. The written
submission was received on January 5, 2007.  In this case the governing legislation is The Highway Traffic
Act. This is legislation which does not have penal consequences.
This case is clearly distinguishable from criminal cases which do
have penal consequences.  In this case the governing legislation is The Highway Traffic
Act. Regard must be made to its provisions. The relevant sections
are 257.1, 257.2, 257.3 and 257.4. Nowhere in those sections is
there a requirement that the certificates be notarized.
By "notarized" I am thinking of the definition of a notarial act in
The Dictionary of Canadian Law by Dukelon and Nase (1991) which
defines such an act as: A notary's written authentication or certification, under seal
or signature, of any entry or document, or any attestation,
certificate or instrument which a notary executes.  In fact the legislation provides in section 257.3(2) that a
certificate should be admitted in evidence as proof, in the absence
of evidence to the contrary, of the facts stated in the certificate
without proof of the signature or appointment of the tester, the
person signing the certificate.  This section of the legislation addresses many of the issues
raised by Mr. Hykawy and perhaps was enacted in anticipation of
these very objections being raised with intent to require courts
not to give effect to those objections, subject to the right of the
accused to bring forward "evidence to the contrary".  Mr. Hykawy is a self-represented litigant. As such he may not
know how that phrase has been interpreted by the courts and what he
must do. It is not this Court's responsibility to act as Mr.
Hykawy's lawyer. He must provide evidence to the contrary.  Moreover, pursuant to section 257.4 an accused person, may,
with leave of the Court, require the attendance of the tester or
the peace officer. Mr. Hykawy may not know what he has to show in
order to obtain the leave of the Court. Merely arguing in
generalities is not sufficient. Some allegation justifying the
Court to grant leave must be made.  I do not accept Mr. Hykawy's arguments.  However, I find there are other issues that Mr. Hykawy did not
raise. These issues came to my attention while I was reviewing the
documents filed and emphasize the dilemma a judge faces during a
trial with a self-represented litigant. The dilemma is when and how
should a judge go into the arena. In this case, in my opinion,
there are obvious imperfections in the Crown's evidence which
require me to get into the fray in order to prevent an injustice
occurring.  The first certificate of Mills dated 29/04/05 shows tests
conducted on 29 April/05. The certificate is dated the same day but
certified on February 7, 2006. The person making that certification
is not the tester and I cannot find authorization for the
certificate to be certified by someone other than the tester. In
this certificate Mills is the tester authorized to certify. "D.
Zuck" certified the certificate as a copy of a testing certificate
on deposit with the Winnipeg Police Service. The authority of "D.
Zuck" to certify is not stated anywhere on the document, nor is it
known if the copy is a true copy.  I have not been shown any authority enabling the Court to
accept this evidence.  This certificate relates to an intersection safety camera,
manufacturer Gatsometer BV, model name or number GTC-F, serial
number 0095.  The certificate made by Hydrochuk relates to a test conducted
on 19 July 05. The certificate is dated 31 July 06. No explanation
is given as to why the certificate is dated more than a year after
the test was conducted. The model name or number shown is "Pembina
Hwy. and Bairdmore Blvd. North #0823". This is not the same model
name or number as in the Mills certificate. The serial number shown
in the Hydrochuk certificate is "N/A". That is not the same serial
number shown in the Mills certificate. It cannot be said the two
certificates refer to the same equipment.  This certificate bears a certification from "E Harasymek" dated
Aug 4/06 to the effect that this certificate is a copy of the
testing certificate on deposit with the Winnipeg Police Service.  It is not stated that "E Harasymek" is a tester authorized to
sign certificates. No capacity of "E. Harasymek" to certify
documents is stated.  The certificate made by Ross shows tests done on August 5,
2005, but was dated April 6/06 and has the same certification
from "E. Harasymek" dated April 7/06. The same concerns arise.  The certificate made by Schwark shows the tests conducted on
August 8, 2005 and is dated April 02, 2006 and has the same
certification from "E. Harasymek" dated April 7/06. Again, the same
concerns exist.  The legislation allows certificates made by testers to be
admitted as evidence, unless there is evidence to the contrary. In
this case the Crown is tendering copies of the certificates
certified by people who are not testers; which certificates are
purportedly on file in the Winnipeg Police Service. The legislation
does not authorize this procedure. If the Legislature wanted to
authorize use of copies of certificates, it could have said so. It
could also have stated who can certify the copies.  Section 257.3(2)(b) provides that the certificate stating that
the test was conducted at a specified time that is within the time
prescribed in the regulations before or after the date of the
offence charged shall be admitted in evidence. However, none of the
certificates specify a time; they only specify a date.  Under section 10(1) of the regulations the prescribed time for
a test recommended by the manufacturer of a) an intersection safety
camera is one year before or after the date of the offence charged.  The offence is alleged to have occurred on August 7, 2005. All
the tests were done a year before or after the day of the alleged
offence. But no explanation is given as to why the certificates
were dated months after the tests were conducted.  Mr. Hykawy's submissions did not persuade me to exclude them.
He is a self-represented litigant and because he challenged the
certificates I looked carefully at them. In my opinion the
certificates are not admissible because on their face they do not
comply with the legislation. The Crown was in possession of the
documents before they were presented to the Court. The Crown relied
on the documents which, upon examination, were defective because: 1. There is an error in the identification of the equipment used; 2. The documents are copies; 3. The documents state they are certified but the authority to so
certify is not stated; and 4. The document is not stated to be a true copy.
The documents are not admissible.  With the result, the Crown has not proven the case and the
charge is dismissed. Marvin F. Garfinkel, P.J.
Republished from the Winnipeg Free Press print edition January 10, 2007 $sourceSection$sourcePage
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