Warning of speed traps perfectly legal

Feb 09, 2008
Mark Toljagic

Special to the Star

There is nothing in the provincial legislation to prevent drivers from flashing their headlights to warn oncoming traffic of a police radar spot check, according to police and other officials.

Wheels readers have expressed their opinions about a recent Jim Kenzie story in which Brad Diamond, host of TSN's Motoring 2008, was charged under an obscure section of Ontario's Highway Traffic Act that regulates alternating flashing headlights typically used by emergency vehicles.

When Diamond challenged the charge in court, the case was dismissed because the charging officer had "no evidence," according to the prosecutor. In reality, the charge was erroneous and never should have been administered.

"It's not an offence under the Highway Traffic Act in Ontario," confirms Sgt. Cam Woolley of the Ontario Provincial Police. "Drivers are free to communicate with each other."

It's a practice as old as flywheel magnetos and wooden-spoke wheels.

"Ever since speeding laws were enacted, motorists have been warning each other," says Woolley. "Truckers use a lot of signals. They also warn each other on CB radio."

And there's no indication the Ontario Ministry of Transportation is about to amend the act.

"At this time, we are not looking to change the HTA to make it illegal for drivers to warn other motorists about radar traps," says ministry spokesperson Emna Dhahak.

Woolley says the police themselves often warn drivers of speed traps by announcing "hot zones" on radio stations, or by using pixelboards or fixed signs to identify school zones and other areas where radar may be present.

In fact, the OPP recently reverted to a traditional black-and-white paint scheme on their vehicles so that cruisers are easier to spot.

"Visibility is a key thing that we do," he says. "We want motorists to see our presence and act lawfully."

Despite their visibility, Woolley says, there's never a shortage of speeders flying right into their radar sights – which makes punishing the flashers a dubious exercise anyway.

But while the charge under HTA Section 169 is bogus – to use a legal term – there's nothing to prevent an officer from stopping and questioning motorists who are flashing their headlights.

"Flashing their lights can mean any number of things," says Woolley. "The driver may be in distress, may need medical attention or may be warning about a situation ahead, such as a collision."

To the drivers' surprise, the officer may use the opportunity to investigate the driver's status and insurance, outstanding warrants and the mechanical fitness of the vehicle. While roadside interrogations may smack of police harassment to some, Woolley defends the practice.

"You can get stopped for just driving your car," he says. "We catch some very dangerous criminals on minor traffic violations."

In other words, flashers attract the attention of the police and could be given the third degree.

"We used to ask drivers if there was anything wrong with their car," recalls Brian Lawrie, president of Pointts, a private traffic court agent and a former police officer himself. "So we'd direct them into a safety lane for a full inspection."

As a defender of motorists today, Lawrie says he's rarely seen the Section 169 charge come up in his company's case files.

"It's not a common charge," he says.

More accurately it's Section 168, the improper use of high beams at night, that police are apt to invoke when they see drivers flashing others motorists.

"I've defended two drivers who did this at night. Both were convicted, by the way, as the judges agreed with police that flashing constituted a distraction that hampered driver safety."

Section 168 does not apply during daylight hours, says Mig Roberts, a spokesperson for Toronto Police Traffic Services. "Flashing your high beams is not an offence if it's in bright daylight."

Roberts could not provide numbers as to how many motorists, like Diamond, have been charged under Section 168 and 169, only that those charges are "few and far between."

More often than not, drivers who are stopped after flashing their headlights are simply given a talking to, rather than issued a ticket.

"We have a big education role to play, as well as enforcement," says Roberts. "Officers have a lot of discretion at the roadside. It's up to the officer to decide if a ticket is warranted."

It's unclear what the motorist possibly could be charged with if it's daylight and the driver's papers are in order, seatbelts are buckled, insurance is paid up and the car is mechanically fit.

Roberts says the charge likely wouldn't be obstruction of a peace officer – a criminal charge that invites more headaches than it solves.

"I wouldn't use obstruction for a provincial offence – that's too far-fetched," he says.

"It's a bit like using a hammer to crack a nut," adds Lawrie, referring to Section 129 of the Criminal Code. "Judges wouldn't look kindly upon invoking an indictable offence – with a two-year prison term – given the case load in the courts."

Peter Rosenthal, a University of Toronto law professor, says an obstruction charge could be fought and won.

As an example, Rosenthal cites a 1971 case in B.C. that involved a citizen who had warned some panhandlers that the undercover officer who was observing them was, in fact, a police officer. The do-gooder was successfully convicted of obstructing a peace officer.

Rosenthal says the case is a rare example of police using the Criminal Code to censure citizens who interfere with police work.

"The B.C. case was way before we had a Charter of Rights and Freedoms," says Rosenthal. "The right to freedom of expression should, in my view, protect the right to communicate to others."

An Alberta court overturned a careless driving charge after the Supreme Court there agreed with the appellant that flashing his lights at oncoming traffic did not distract or startle other highway users.

But while charges for flashing others are unlikely now – thanks to all the recent media attention – police say drivers should think twice before they reach for their headlight switch.

"By flashing, the driver doesn't really know that he or she may be enabling a dangerous driver to continue being a safety hazard," says Woolley.

"Traffic safety is always the Number One issue at neighbourhood meetings," says Roberts. "People want us to do a good job."

"Speeders should not escape liability."

Toronto Star