After being charged with speeding by a city-operated photo radar device, a Toronto family was able to successfully fight the charge in court largely due to one small detail.
The driver, identified in court proceedings as Blayne Kumar, was captured by an automated speed enforcement (ASE) camera driving on Avenue Rd. just after 3 a.m. on Aug. 15, 2021.
Kumar, 35, was driving to his girlfriend’s residence, when court documents claim the ASE camera registered his speed at approximately 121 km/h – 71 km/h over the posted speed limit.
He was automatically issued a ticket, as is protocol for the ASE program, implemented by the City of Toronto in 2019.
Facing a $1,400 fine, Kumar challenged the ticket – and won.
In December, the Ontario Court of Justice dismissed the charge, with Justice of the Peace Roger Rodrigues stating the prosecution could not, beyond a reasonable doubt, prove Kumar had been travelling 121 km/h.
"When I consider the defendant's exculpatory evidence, which was not in any way shaken through cross-examination, in the context of the collective effect or nature of the frailties in the prosecution’s evidence [...], I am left with a reasonable doubt as to the defendant’s guilt,” Rodrigues said in the decision.
Kumar’s defence and subsequent victory hinged on one factor: whether the ASE camera that clocked his alleged speed was in reliable working condition. When cross-examined, the prosecution was unable to prove the accuracy and routine maintenance of the camera.
While the City of Toronto maintains the accuracy and reliability of its photo radar program, legal experts say Kumar’s case could pave a path to precedence for future ASE ticket challenges.
When a ticket is automatically issued by an ASE camera, it is done so in the name of the owner of the car. ASE cameras are unable to distinguish or identify drivers of vehicles. As with all ASE offences, the potential consequences are solely monetary.
In turn, it was Kumar’s mother, Ooma Ramroop, who was named as a defendant in the case, documents show.
According to the decision, during Kumar's testimony, he maintained he never drove in excess of 50 km/h on the August evening. He testified that he often drives on Avenue Road and therefore was aware of the “speed trap” recently installed. Because of this, Kumar testified he “always” set the vehicle’s cruise control to “47 or 48 km/h” when turning onto the roadway.
Kumar also told the court that, as a driver since the age of 16 years old, he knows what a speed of 121 km/hour “feels like.”
David Powers, the officer who certified the ASE photograph resulting in Kumar’s charge, also testified, stating that the vehicle’s licence plate was clearly visible in the image produced by the ASE camera and that the camera's readout showed a speed of 121 km/h.
However, when Powers was cross-examined by the defence and questioned on the device’s installation and maintenance, he was unable to provide sufficient and necessary context.
Documents state Powers was unable to name which company was responsible for certifying the accuracy of the camera in question, or when the camera had last been tested for accuracy. By law, each device has to be calibrated within 12 months before an alleged offence.
Nowhere in the decision does it indicate that a certificate of accuracy for the ASE camera that issued Kumar a ticket was presented as evidence in court. The city lists these certificates for each camera on its website.
During the cross-examination, documents state Powers also erroneously claimed that in the photograph captured of Ramroop’s vehicle, only one vehicle was present when, in fact, there were two vehicles visible.
In turn, Rodrigues wrote in his decision that the officer’s cross-examination “materially lessened” the strength of his evidence, while Kumar’s testimony “contained adequate detail to be considered plausible," and determined that the prosecution had failed to prove beyond a reasonable doubt that the vehicle had been speeding.
The City of Toronto is currently reviewing the decision, it said in an emailed statement to CTV News Toronto.
“In the meantime, it is important to understand every case is adjudicated on its own merits and an acquittal in this case in no way means Toronto’s ASE system is not accurate or reliable,” the statement read.
When reached for comment, paralegal Paul Periti, representation for Ramroop, told CTV News Toronto said he believes he “brought some doubt to the prosecution’s case through cross-examination,” but that the bulk of the doubt came simply from the driver’s testimony.
“The defendant's son who was driving the vehicle denied the accused rate of speed and described very eloquently how fast he was travelling,” he said.
Dylan Finlay, trial lawyer at Oykhman Criminal Defence in Toronto, told CTV News Toronto Friday that Kumar’s case could lay a path for future ASE court challenges.
“I don’t think it’s a new loophole,” Finlay said.
“But yes, the questions [the officer] was asked, and what he was shaken on, certainly lays a path for other people challenging tickets in the future.”
While Periti said he cannot comment on the “overall reliability” of the city’s ASE cameras, he said he is wary of the system and questions whether it prioritizes profits over safety.
For years, the city has been moving away from ASE ticket challenges being heard in court, and instead towards administrative penalty tribunals, which are headed by hearing officers rather than judges. The move is meant to free up the court system and alleviate backlogs, the city said.
But Periti disavows this decision, claiming it infringes upon Ontarian’s right to fight such charges in a court of law.
“It [can] become an accusation and just pay with no opportunity to go before the unbiased Judiciary in this province – you appeal to the city who accused you,” he explained.
On Feb. 2, while revealing the locations of 25 new ASE cameras across the city, Toronto Mayor John Tory reiterated that the program's top priority is road safety, and stated that the cameras have been successful in lowering some driver’s speeds.
City statistics show that between July 2020 and November 2022 Toronto’s speed cameras issued more than 590,000 charges. In the same timeframe, the city collected $34 million in fines.