The Québec Superior Court, in Moscowitz c. Attorney General of Québec, recently dismissed a plaintiff's application, seeking to authorize a class action on behalf of individuals who had been issued a statement of offence involving photo radar and/or red light cameras in the province of Québec from August 19, 2009, onwards.

On August 7, 2016, the plaintiff was caught by a photo radar device driving above the speed limit in contravention of the Highway Safety Code. Shortly thereafter, the plaintiff received a statement of offence and offence report, which contained details of the alleged infraction, as well as a photo of the plaintiff's vehicle taken by the photo radar device. Although the plaintiff denied she was speeding, she elected to pay the $137.00 fine instead of incurring the time and costs of defending the matter.

However, in December 2016 the plaintiff learned of the recently released decision in Directeur des poursuites criminelles et pénales v. Bove, in which a Québec Court ruled that similar photo radar evidence was deemed inadmissible as it was considered hearsay evidence. In coming to this conclusion, the Court found that the police officer who had signed the offence report sent to the accused did not comply with the Regulation relating to the accuracy of the device, despite having attested to this information in the report. As a result, the Director of Criminal and Penal Prosecutions could not rely on the offence report as evidence, and the accused was ultimately acquitted.

Upon learning of the outcome in Bove, the plaintiff brought an application as against the Attorney General of Québec, alleging a 'systemic and malicious use of hearsay evidence to prosecute photo radar and red light offences in the province of Québec'. Specifically, she argued that the officers who signed the offence reports, the Director who prosecuted the offences, and the Bureau des infractions et amendes, who accepted payment of the fines, knew or ought to have known that the offence reports contained hearsay evidence that resulted in the unlawful and malicious prosecution of the class.

The Attorney General argued that the class action represented a collateral attack on a final decision and that, in any event, the relative immunity of the Crown prosecutors applied in this case. The Court ultimately agreed.

In coming to its decision, the Court quickly dismissed the application, holding that there were no allegations in the application that could support a claim in respect of the red light camera infractions, and that the plaintiff could not demonstrate an arguable case for malicious prosecution in respect of that portion of the claim.

With respect to the photo radar infractions, the Court found that because the plaintiff had agreed to pay the fine the charges against her had not been decided in her favour, which is a pre-requisite for a successful tort claim for malicious prosecution. The Court went on to state that this requirement is designed to preclude a collateral attack on a conviction properly rendered, and that this principle applies equally to proposed class actions. As such, the Court found that the plaintiff did not have an arguable case for malicious prosecution against the Attorney General, and specifically against the Director.

Interestingly, the Court found the plaintiff met the "low threshold" for the authorization of a class action in relation to the allegation that the police officers might have fallen below the standard of care of an officer in signing the offence reports without the requisite knowledge. However, the plaintiff had failed to allege any facts that would amount to bad faith on behalf of the officers.  In the absence of such facts, the Court would presume good faith. In any event, the Court held that the plaintiff failed in demonstrating that she incurred any direct damages as a result of the actions of the officers. The only damages incurred were a result of the plaintiff's conviction for speeding. Further, the Court held that the plaintiff failed to plead any facts to demonstrate that the Bureau was acting negligently or in bad faith when accepting her guilty plea and fine.

As a result, the plaintiff's claim failed because she could not demonstrate an arguable case for civil liability as against the Director, the police officer or the Bureau.

Author

Jonathan Thoburn 
JThoburn@blg.com
416.367.6435

Expertise

Class Actions
Litigation and Arbitration