I don’t often start off a post with a joke, but this is a bit of a different topic.

A man is driving down the road doing the speed limit and he is being passed by just about every other car on the road. He decides to increase his speed a bit, and then a bit more. You know, “just keeping up with traffic”. After a few kilometres of going about 15km per hour over the speed limit, a police officer pulls him over.

As the police officer writes out the ticket, the guy is upset. Everyone else was speeding but he got a ticket. And he wasn’t even the fastest one! Several cars passed him! He shares his thoughts with the police officer, trying to get some sympathy. All the cop says is, “Okay” and keeps writing.

He finally asks the cop if he thinks it is fair that he gets a ticket and the others don’t. The cop asks him, “Well, let me ask you something. Do you ever go fishing?”.

“Sure, I do”, the guy answers.

“Well,” the cop says. “Do you ever catch all the fish?”

Every time someone talks about automated speed enforcement (ASE) photo radar cameras, I am reminded of the joke. In the case of ASE, they literally can catch all the fish.

I have a bias, I admit, against Ottawa and traffic controls

I’m not sure if it was law school that makes me react to certain things in a certain way. Or perhaps it is my blue-collar upbringing as the son of a house cleaner and a factory worker. Or the fact that the factory worker had very definitive views about how municipal government should run, or more accurately, how it should NOT be run. But I have frequent and powerful reactions to most of the things that Ottawa does in the area of traffic and parking enforcement.

It started with a simple parking ticket. The year was approximately 2007, and I went to meet a friend for coffee in the Glebe on a weekday. It’s a commercial zone, I fully expected to pay for parking and perhaps even to struggle to find a spot, but right across a side street from the coffee shop were five or six spots and three were empty. There was a sign that limited parking to 1 hour or so, which was fine. I got out of the car with money in hand, ready to pay for parking, and … nothing. No meter. I was like, “Huh?”. I knew they were trying to attract people to the area, but free parking? That didn’t sound right. I saw a sign that seemed to indicate there was paid parking down the street somewhere, a simple P with a $ and an arrow, but it didn’t look like official signage by the City, it was more like advertising. I decided it was a bonus and off I went past a large truck that was backed up across the sidewalk all the way up to a house that had a porch, where the truck was unloading furniture directly off a ramp onto the porch. I came back 45 minutes later, and I had a ticket. WTF?

So, the truck had been blocking another sign AND a meter. The sign was kind of wonky still, it didn’t look like a city sign, but it was indicating that it was paid parking between the now fully-visible two signs. As was the meter. The truck had been illegally parked, maybe I could have argued in court that I tried to pay but was prevented from doing so, but mostly, I just didn’t understand the signage when I couldn’t see the other sign or the meter. Grumble, grumble, I paid.

I got a second ticket out at a movie in Kanata in 2017 or so. It was winter, the lot was a zoo, someone pulled out in front of me, I pulled in, all good. Done. Came back out 2 hours later to find a ticket. What I had not been able to see is that where I was parked, there was some yellow paint on the curb. The people ahead and behind me would have got tickets too, I suspect they issue them every night there. It wasn’t very clear, including the fact that half the curb was missing. The snow and ice on the road had hidden any markings there, although some melted while the car was there. I had seen NOTHING when I parked, and I did look. Grumble grumble. And there’s an element that makes me a little uneasy there, which is the municipal government delegates parking enforcement in a lot like this to the company that runs it. Who get a direct cut of the revenue generated, and thus have a strong profit motive to not make the paint lines very clear. I did take some photos, I didn’t think it was adequately marked, but well enough, maybe, I guess? I didn’t know then, I don’t know now. I didn’t want to take a day off to go to court and potentially fight something that theoretically I would have seen clear as a bell if it was light out. I didn’t see it in the dark and snow, but well, okay, my bad. I paid.

Then I started hearing other stories about delegated parking issues around town. People who had paid, but had been ticketed and towed, and even with proof of payment, were still on the hook for the towing AND still had to go to court to get the ticket quashed. Or some other lots, making it very hard to work the meter/ticket machine, but then dinging people like crazy for repeated errors in misunderstanding how it worked. Administrative error or deliberate profit motive? And at first, you think, “Well don’t park there.”. Sure, an easy response. Except the city is giving these companies the power to issue tickets with the power of the city behind enforcement. It isn’t one of those fake bills you don’t really have to pay — if you don’t pay one of these, it goes to the city to enforce, then to court, then to Department of Transport, and next thing you know, you can’t renew your license.

If it works fine, nobody cares; if it at least works with integrity, then that’s okay. If it works poorly or without integrity, how can that be considered a legal delegation of authority? If it was the city doing the administration, you could easily appeal from a pure legal basis. It would never hold up. But why do I have to fix a situation with a questionable company that the city LICENSED and DELEGATED to do this? Don’t they have to monitor the way it is working? Grumble, grumble. I pay, I pay. Moving on.

Now contrast that with three speeding tickets I have received in the last 20 years. Two were on Highway 7 en route to Peterborough. I was speeding, a cop with a photo radar gun clocked me, they gave me a ticket, done. I might not be excited about paying it, but well, I was speeding. No issues, I simply paid. Similarly, a cop gave me a ticket near a school on Moodie Road. Where he dinged me, it is completely rural, but it’s coming up on the school. They’ve since changed the edges of the zone but the limit is 40, and I was doing 50. I would have slowed down at the school, but the speed changed before the school, and I didn’t slow down. Okay, maybe the signage wasn’t perfect, but no problem. He had a radar gun, I saw the result, yep, seems legit / checks out. My bad, I paid, no concern at all.

ASE doesn’t make as much sense as people say it does

So, ASE falls under the heading of traffic calming measures. Other obvious ones include police presence, traffic lights, stop signs, automated cameras, road design for shape (curves, turns or roundabouts), road design for obstacles (speed bumps), cones, signage, meters/scales that tell you how fast you go, flashing lights, and those lovely sticks that you have to drive between. And the biggest of all, a speed limit, of course. Under provincial rules, there’s an extra one — cities can designate certain areas, particularly around schools, as community safety zones, and traffic violations in those zones are increased or even doubled.

Let’s deal with them in order of normal usage. First and foremost, somebody asks for an area to be designated a safety zone. Note this is NOT the City planning department or traffic enforcement. Usually it is a parent or someone who lives near the road who complains to the local councillor that people are going too fast and we “have to protect the children”. I flag this because the main argument for creating these zones and subsequent traffic calming measures is because there is a problem to be fixed. Yet according to the city’s own statistics, many of the zones where the zones have been established have no reports of incidents of collisions or injuries, or really anything, in the previous five years. The City frequently wants to install monitors to see how fast the cars are going, but many of the Councillors push right past that “evidence-gathering” stage and go right to “Somebody says people are going too fast! It must be true! Let’s designate a zone!”.

Okay, that’s fine. A little over-reactive, perhaps, particularly given the nature of some of the parents who come knocking…not all have unbroken Oreos if you know what I mean. Some want to ban cars anywhere near a school, for example. Since their kids can walk across the road, we can obviously forget about parents who have to drive to drop off the kids or pick them up, or anyone who isn’t fully able-bodied. One of the recent candidates for our ward was very big on massive traffic-calming measures, particularly near her own house. Umm, okay.

Second, they review the speed limit. Of course, these are all established roads, not new areas, so there already is a speed limit for the zone. But they review it to see if it still makes sense. For me, this is where part of the “approach” goes off the rails. Within 5km of my house, there are 4 ASE cameras in school zones (that I know of), and about 20 community safety zones without cameras (but were planning to have them!), with virtually no consistency. Two of the ASEs are on two-lane roads but have different speed limits — one is restricted to 40km/hour, the other is 50. The other two are four-lane roads, with speed limits of 50 and 60. If you take into account elementary schools, the broader zone has speed limits of 30, 40, 50, and 60 km/hour. For two high schools near cameras? One is 50 and the other 60. Theoretically, the kids at each school deserve to be equally safe with the same risk assessment for the rate. But, somehow, the local people decide the rate, not the city. It’s delegated from the province to the city, not community members, but well, that’s local politics for you. If you’re driving around the city, good luck knowing in advance what the rate will be, particularly with community zones proliferating like wildfire (in the seven minutes it takes to drive my son to school in the morning, one of the routes takes me through four different zones with four different speed limits and two of them have cameras while two don’t although they were planned). There’s no apparent logic to any of the speed limits in each.

Third, okay, we have a zone and a speed limit. Now we want to introduce some extra traffic calming. Why? No one knows. As I said, the majority of zones have no evidence of any previous collision or injury. They DO have evidence of speeding, usually, cuz they do SOME monitoring if they are allowed. As I said, some councillors don’t care what the evidence base looks like. They promised traffic calming, they’re going to deliver traffic calming. In Ottawa, every councillor has a (theoretically small) budget to spend on traffic calming.

Those yelling at the provincial government keep saying that ASEs work to reduce speed. They’re partially right. It does indeed reduce speed. As EVERY traffic calming measure does. The speed limit did the biggest job up front. Of all the options, the next best is a stop sign. There are issues of compliance, aka people rolling stops, but people don’t usually run them at speed. Partly because if there is enough traffic on the road, other people are stopping and if they try to run at speed, they’ll rear-end someone. After that, speed bumps are great at reducing speed, particularly for urban traffic. They are the two biggest tools in the urban planning playbook, and have been used reliably and successfully for years. Tried, tested and true.

However, ASE manufacturers often point to studies showing the success rate of automated cameras. Okay, sure. So they do what other traffic measures also do aka speed goes down. Great. But they have virtually no unbiased evidence that it works better than a stop sign. Cuz it doesn’t. There is a fundamental difference in approach, and you can’t overcome it, no matter how much $$ you pour into stats.

Stop signs, cones, speed bumps, and sticks all change behaviour immediately. Today. Particularly if multiple tools are used together aka stop signs, speed bumps and sticks, for example. ASE cameras change behaviour over time only, and slowly. But if your child is run over by a speeding driver, I’m sure it will be a great source of comfort to know that the driver will get a ticket in the mail in 10-14 days.

So, here’s where I start to run into a comprehension problem:

• Safety zones are profiliferating like crazy, okay, I can understand that I guess;
• The best tool to lower speed is the speed limit, but every zone is somehow different rather than flat rates for elementary or number of lanes;
• Many of the zones have no previous “incident” in the last five years that they’re trying to fix and many councillors don’t even want to gather evidence of actual speeding before adding new traffic-calming measures; and,
• They say they’re worried about safety and speed, but then don’t choose the best option for immediacy, effectiveness and efficacy aka a stop sign.

And when people point out that ASEs are not as effective as a stop sign, people say, “Oh, but people roll the stop sign”. And? The goal wasn’t actually to get them to stop, it was to get them to slow down. If they still roll the stop, going 5km/hour, that’s way better than speeding through at 70 and getting a ticket 2 weeks later. Rolling stops isn’t great, sure, but if they’re going to roll it anyway, they’ll ignore the cameras far more easily. They may not even notice it’s there. Out of sight, out of mind.

Then my brain starts kicking into tier 2 questions

For the most part, the Tier 1 of my analysis is that it is a seemingly valid concern but people think it is just about speeders. It isn’t. It doesn’t make sense from the word go. I hate to say this, but public administration generally isn’t rocket science. It’s understandable, and it should make sense to the people being “served”. But well, up to this point, I don’t get too passionate in my response. Whatever, moving on.

But then we come to a new problem. Despite not having a great policy framework, despite not having a good implementation framework, and despite not having the evidence that there was a problem in the first place, now we’re choosing not only less effective tools, we’re implementing a regulatory framework that creates strict liability tickets and issues fines to those who didn’t conform to the messed up framework.

Most people are okay with that, it seems. Don’t want a ticket? Don’t speed. Riiiiight, cuz there isn’t any other reason why someone might have a problem. Even if it doesn’t make sense to choose that option.

Yet let’s talk implementation for a second. There’s a camera near an elementary school where the speed limit is 50 km/hour. If you come from one of the side streets, there’s no signage from the one direction about a zone. You don’t know until you turn on the main street. Twenty feet later you are in the zone. But for the first 4 months that the camera was operational, there was no speed limit posted there. It was posted two blocks north of that point. If you came in, you could get dinged for speeding having no idea what the limit was. If you mistakenly thought that the limit one major interchange exit over was the same (60), well, too bad, so sad, you get a ticket. They eventually fixed it so the speed was actually posted, but they issued tickets for month without that change.

Now, using an ASE is automated for the picture, but not the ticket. A person has to look at the photo, match it in Department of Transport system, and approve you getting the ticket. They do so based on the photo and the recorded speed. Seems foolproof, right? Except that it is a strict liability regulatory scheme, which is the type of scheme that the Supreme Court regularly tosses as violating the Constitution. But there’s very little “justification” for speeding, hence it’s not very ripe for abuse at first glance. And part of that rationale is that police officers use radar guns. It’s the same, isn’t it?

ASEs are not the same as cops with radar guns

If you are a cop using a radar gun, there are several elements that are required. First and foremost, the cop has to be trained on how to use the equipment. Secondly, each and every time the cop uses it, it has to be calibrated and tested. Third, the equipment has to be maintained. And fourth, when they use it, you are stopped and informed immediately that you have been caught by the radar gun. This gives you the opportunity to immediately collect any evidence that you need if you think it was an error. Or to even know if it was an error. If you end up in court, perhaps you have dashcam footage that clearly shows your speed from the car’s internal sensors and that the radar gun must have had a false positive. Or you want to take a picture of the radar gun showing it’s indicators (if the police allows you, or does it for you at your request).

An ASE is established as a permanent, non-movable structure. It is calibrated on day one. They are generally self-levelling, self-testing, self-calibrating, etc. It decides if it is working properly, not a human. Is the diagnostic working properly? No way for you to test it after the fact. The system said it was working, therefore it must have been working. Some models reset daily and recalibrate. If some do, why don’t all of them? But of course the biggest differences are that you can’t question the machine in any way about any potential issues of weather, sightlines, or more pointedly for ASEs, whether the pole might have been damaged in any way (there are numerous reports of people vandalizing cameras that continued to operate and take pictures)…was the calibration still “okay”? How would I know?

But after I step over the lifeless legal corpse that is a strict liability situation, I now have another legal problem. To the extent that I can possibly have ANY defence, all of the state’s evidence is gathered on day 1, and I have to wait 2 weeks to start collecting mine, as I don’t even know I committed an offence. Using the dashcam example, lots of people have dashcams that just reset every day or week or month and record over previous footage. So if there was footage that showed the computer was giving a false positive result, I may have completely lost my ability to gather data that would prove potential innocence.

Now, I’m betting you think this is just semantics. Needless and inaccurate minutaie.

Except the provincial government said when they created the authority to use ASEs that it was not as reliable as cops with radar guns. It’s built into the legislation. Tickets by cops with radar guns include both the fine and demerit points. Tickets by ASE can ONLY include a fine. No demerit points. Why? Because if a person loses enough demerit points, they can lose their ability to drive and thus could lose their employment / livelihood, which are protected in the Constitution. The province lowered the appeal and evidentiary threshold for ASEs because use of ASEs couldn’t meet the same levels as cops with radar guns. And they wanted to avoid a Charter challenge from tossing the whole province-wide scheme if overzealous municipalities started to resemble ASE’s Gone Wild!

But surely the courts can be trusted to make it right?

So, looking at it again. Right, the policy and implementation framework is shaky. However, the province gave them the right to do this, and if it gets too bad, you could always go to court. Ignoring the strict liability of being guilty if the computer says you are, you can always appeal to a judge, right? Go in person, tell your story. Have your day in court!

That sounds great. Oh, but the city isn’t going to let the tickets go to court. That will cost them too much money (the courts cost money to hear appeals to the municipally-created regime). Instead, they wanted to create a simplified tribunal. That would be run by city appointed jurists (not judges), an administrative system paid for by the revenues from the tickets, and not subject to all those pesky court rules and principles. Just you before a guy or gal who works for the city deciding if you have to pay a ticket that the computer says you should.

And if the concept alone doesn’t ring enough alarm bells, what about the fact that there are SO MANY TICKETS, that they can justify setting up a whole new administrative system to deal with the volume so the courts don’t have to? For just ONE CITY?

Wow.

My head is hurting, but surely there’s no nefarious intent

Now, the Premier said quite clearly that this was just a cash grab by cities. But no, that couldn’t be, right? It’s about the safety of the children (according to parenting groups, head cops of police forces, and school boards!). Ignore the fact that parenting groups and school boards have no policy expertise in regulatory frameworks for traffic enforcement, just focus on heads of police forces.

Right. They can’t have a vested interest, can they?

Hmm…let’s see. In Ottawa, the City started with redlight traffic cams. And they generated a LOT of cash. The busiest intersection on the way to Quebec has generated literally millions of dollars in revenue. Somehow, anyone using that intersection seems like they might have a problem obeying the rules. Vast numbers of tickets. Many of them going in one direction. It couldn’t possibly be that people coming down the hill of King Edward towards Rideau Street and seeing three sets of traffic lights in a row might get confused. Or getting caught in the middle of a huge intersection because of too-short yellows? Nor could it be poor signage contributing to people getting caught in the intersection in the first place. No, of course not. It is apparently just that every bad driver runs those lights. Sure, that analysis doesn’t raise any red flags.

Now, once the fines are paid, and it goes to the City, there are rules they put in place for how that money should be spent, generally tied to traffic improvements, safety and calming. It wasn’t 100% required, but the City said very clearly that was the intent. When the auditors looked at the books this past year, they were unpleasantly surprised to find that the City had not in fact used the funds as they said it would be, but left it in general revenue. How odd. Must have been an oversight. Oops, their bad.

But because the City planners KNEW that audit would find problems like that with redlight cameras, the approach for ASEs is different. The establishing legislation requires that ALL of the money from ASEs go to traffic calming measures. To be spent by individual municipal councillors in their ridings. And that is ALL it can be spent for, according to the establishing rules. Yet the amounts going to the councillors is tantamount to buckets of cash compared to what was previously given. A councillor who had, say, $14K previously per year for traffic calming may have as much as $40K now. With the amounts doing nothing but going up, up, up.

And not to be too cynical or snarky, but um, what do they do when they have calmed every piece of traffic anywhere in the city with all this extra cash and yet still have more revenue pouring in constantly? Oh, well. I guess the city will have to find other uses for the money. Maybe parking. Or social programs.

Or dare I say it? Policing. Maybe some extra cash for those heads of police to run their departments under a heading of supporting traffic-related expenses. No, no, that’s not fair. They’re worried about the children, I remember.

I’m shocked that Doug Ford and I agree on anything

I am, I really am. But before he announced he was shutting down the program, I thought seriously about writing a book called, well, All the Fish. Going through all the evidence of the above elements.

Shaky policy framework. Shakier implementation. Legal issues with the regulatory framework. And ASEs that seem to act more like ATMs dispensing cash to councillor’s ward budgets than to actually increase safety.

I’m in favour of increasing community safety, but I’d like it to actually work the way it should, and not simply be a cash grab while creating a whole host of other problems. Interestingly, Alberta went the same way not too long ago as well. These are not led by leaders I aspire to emulating, but bad public admin makes for interesting bedfellows.