Driving east, you flash your headlights to warn westbound motorists that police are toting radar guns in a speed trap.
You may believe you're doing the right thing by alerting fellow drivers to speed traps, as a matter of unwritten road etiquette. But suddenly, a police officer is flagging down your car, and you are issued a ticket for flashing high beams.
The Durham Regional Police Service (DRPS), for one, issued about a dozen such tickets in 2013 in contravention of Section 169 (2) of Ontario's Highway Traffic Act. Lawyers argue police are knowingly bending the law to protect revenue-generating speed traps. Police claim they're within rights.
"This is not a ticket that is very common – speeding, for example, would be the No. 1 ticket issued," says DRPS spokesman Dave Selby. "But we have consulted with the Crown Attorney's office on it and they support these tickets."
Jonathan Dawe, co-founder of a Toronto law firm and an adjunct professor of law at the University of Toronto, says police officers laying charges for headlight-flashing are "abusing the law and taking advantage of the fact that most drivers don't know the details of the HTA, or can't spend the time and effort it would take to fight the ticket in court."
Durham police have issued 21 summons for flashing headlights, resulting in eight convictions since 2011. Selby cited "safety" as the motivation for the tickets, as flashing high beams have a "distracting effect" on other drivers. "The decision to issue a ticket is at the discretion of the officer – she/he would have knowledge of the Highway Traffic Act and would enforce it according to their good judgment," Selby said.
In Ontario, "by its plain language, Section 169 (2) deals only with 'alternating' flashing high-beam headlights of the sort emergency vehicles use when responding to calls," Dawe says. "It is pretty clearly meant to prevent ordinary cars and trucks from being mistaken for emergency vehicles. The section doesn't say anything about when motorists can flash their regular high-beams – that is, ordinary headlights that don't alternate from side to side."
Brad Diamond, producer of the television show Motoring 2014, was charged for flashing his high-beams in 2007 while travelling across the Prince Edward Viaduct in Toronto. Diamond noticed a radar-toting police officer ticketing eastbound motorists and alerted oncoming traffic. On the other end of the viaduct, police officers were pulling over westbound motorists for warning other drivers. Diamond took his $110 ticket to court armed with "about 50 pages of research" but never got a chance to make his case. The ticket-issuing officer did not give evidence and the charge was dismissed.
"It wasn't a matter of whether or not I had done anything illegal," Diamond says. "The issue was this: there is no law prohibiting people from doing what I did. Period."
Says Dawe: "If the police don't want people flashing their high beams to warn of speed traps, they should be seeking to have the HTA amended so that there can be a proper public debate over whether or not a new law is needed. They shouldn't be taking matters into their own hands and re-purposing a law that was enacted to do something completely different."
For its part, the Ontario Ministry of Transportation notes that the issue ultimately comes down to a judgment call made by law enforcement. "In Ontario, police officers act independently when carrying out their duties … the [Highway Traffic Act] does not specifically address the flashing of lights to alert other drivers of police presence," says MTO spokesman Bob Nichols.
It seems ironic for police to object to motorists warning others to obey the law, given that their municipalities use signage to warn that certain roads are being patrolled by radar or that an intersection ahead is equipped with a red-light camera. As Diamond says, the "official reason" for speed enforcement is to get motorists to slow down.
ONTARIO HIGHWAY TRAFFIC ACT
Use of passing beam
168. When on a highway at any time when lighted lamps are required to be displayed on vehicles, the driver of a motor vehicle equipped with multiple beam headlamps shall use the lower or passing beam when,
(a) approaching an oncoming vehicle within 150 metres; or
(b) following another vehicle within 60 metres, except when in the act of overtaking and passing. R.S.O. 1990, c. H.8, s. 168.
169. (1) Despite section 168, highbeam headlamps that produce alternating flashes of white light may be used by a public utility emergency vehicle while responding to an emergency and by an emergency vehicle as defined in subsection 144 (1). R.S.O. 1990, c. H.8, s. 169 (1).
Alternating highbeams on other vehicles prohibited
2) No person shall use highbeam headlamps that produce alternating flashes of white light on any vehicle other than a vehicle referred to in subsection (1). R.S.O. 1990, c. H.8, s. 169 (2).
Police are attempting to penalize motorists for headlight-flashing in many jurisdictions, with varying success:
1.In February, U.S. District Court Judge Henry Autrey issued a temporary injunction to block Ellisville, Mo., from ticketing drivers. Driver Michael Elli had been charged with a moving violation after flashing his headlights to warn oncoming motorists of a speed trap. The city dropped the charge when Elli pleaded not guilty, but the American Civil Liberties Union followed by suing successfully on his behalf. The judge ruled that the driver's action constituted free speech as protected by the First Amendment.
2.Michael Thompson, of Grimsby, England, used his headlights in 2010 to warn motorists of a speed trap, and was charged with willfully obstructing a police officer in the course of her duties. Thompson fought it in court, claiming he was doing his "civic duty." He told the court warning others of a speed trap was a safety issue given that he had previously been involved in a traffic accident because of a speed trap. Thompson said two drivers in front of him braked suddenly upon spotting the radar trap, and while stopped in time, another motorist rear-ended his car. Thompson was fined £175 and was ordered to pay £250 in court costs plus a £15 victims' surcharge.
3.In Australia, Queensland prohibits use of high beams within 200 metres of other vehicles. According to the Courier-Mail, in late 2008 Police Minister Judy Spence said drivers flashing their lights to warn of radar cameras were condoning speeding.
-- Wire services
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