A local businesswoman is wondering how police discretion works

Juanita Jackson, a local hotshot business operator, recently had issues with two of her business vehicles, driven by her employees. The vehicles were pulled over by police officers in Kindersley and Estevan and tickets were issued, leaving Jackson with a number of questions such as how police officers decide on the measures they take in each particular case and how they use discretion.

Jackson originally published her story on social media, raising some important questions among the community. The Mercury looked into the situation and tried to find some answers.

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Jackson’s story began when her one-tonne work truck, driven by an employee, was pulled over in Kindersley for an insufficient muffler. When it came to her she approached the police officer and asked what was insufficient, but she said she didn’t receive any answers.

“I said to (the officer), ‘If you can’t tell me what’s insufficient about it and you can’t tell me how loud is too loud, how can you give a ticket?’ He said, ‘If you don’t like it, you can go to court and fight it,’” recalled Jackson.

The provincial legislation addresses noise pollution from vehicles, under both the Traffic Safety Act and the Vehicle Equipment regulations. Section 215 of The Traffic Safety Act (TSA) states, “No person shall create or cause the emission of any loud and unnecessary noise from a motor vehicle, a part of a motor vehicle or any thing or substance that the motor vehicle or a part of the motor vehicle comes into contact with,” and section 18 of The Vehicle Equipment Regulations (VER) reads, “The vehicle shall have a muffler that effectively reduces combustion noise." 

Media relations manager with SGI Tyler McMurchy explained that to successfully go through the provincial light vehicle inspection, the vehicle must have an original equipment manufacturer (OEM) muffler, or one that meets the OEM standard, on every vehicle and cannot be cracked, perforated or bypassed; the resonator cannot be missing, have any leaks or be cracked or perforated; the exhaust pipes cannot be equipped with a noise enhancing device, or have any perforations or holes other than what is made by the manufacturer.

“I don’t want people to think that I’m arguing the law, because that’s not it at all. I agree with the laws, we need them,” said Jackson, pointing out that her questions indeed were about an officer's decision to right away proceed with the ticket without explaining anything.

McMurchy pointed out that there is a level of subjectivity, based on the police officer's judgement to what is too loud. According to the information provided by the Saskatoon Police Service, “Location, type of noise, time of day, volume, duration and other factors are considered. If the sounds coming from your vehicle are loud enough to be disruptive and bothersome to those around you, they are too loud. Vehicles that are properly maintained won't produce excessive noise under normal operation … In particular, motorists need to consider the proximity of public spaces and residential areas."

Estevan Police Chief Paul Ladouceur said that in many cases the tickets for insufficient mufflers come out of the follow-ups on public complaints about loud vehicles. 

“If officers do see a vehicle that has the muffler that seems excessively loud then they have that ability to issue a ticket. If that person chooses to dispute that ticket, they have the opportunity to take it to court,” said Ladouceur.

Jackson attended court on Feb. 18, and after she presented the current safety that was done less than 30 days prior to the occurrence and told her side, the judge asked the officer to talk to Jackson during the recess and the ticket was dismissed.

And while the outcome of this situation was positive for Jackson, she still spent time fighting the ticket, so her question remained, why the officer didn’t use discretion in the first place.

“That’s my whole point, is that’s what they are doing, giving out those bogus tickets just so they can say, ‘Oh, look how busy it is, look at all these criminals,’” said Jackson.

Soon after this situation was resolved, another branded work truck, driven by an employee, was pulled over on King Street for the use of a cellphone. It was the driver’s second offence, which resulted in a ticket of $1,400 and vehicle impoundment for a week. While the work vehicle was towed from the scene, resulting in what Jackson estimated as over $15,000 in losses two weeks before road bans, the driver freely drove her personal vehicle home.

The driver insisted that she wasn't using the device while driving, and while police officers can’t search the cellphone content without a warrant, Jackson said that her inner safety policies are very strict and she has signed agreements with employees allowing her to conduct an investigation, which she did in that case.

“I have looked at the phone, there is no proof or any indication that she was using the device. And (the EPS) impounded the truck ... Our policy at work is zero tolerance for breaking the law. Zero. Automatically fired. I do the investigation, and I can’t prove she was on it, so she’s still got her job,” said Jackson. 

Even though Jackson couldn’t find any proof of the driver using the cellphone, the law reads “holding, viewing or manipulating a hand-held cellphone or mobile device is prohibited in Saskatchewan,” which means that holding the phone is sufficient to receive the fine. However, with no proof of the employee being guilty Jackson, with a vehicle put out of the operation, still couldn’t put any sanctions on the driver, but at the same time, her business felt the weight of the police sanctions.

Jackson tried to appeal the impoundment and get her work truck out earlier, but the suggested procedure turned out to be time-consuming, and while there was a significant cost to it, it didn’t guarantee a positive decision or even that the case would be considered in time.

The vehicle was returned a week later after the owner covered all associated fees, and the employee has a future court date to argue the ticket. However, Jackson doesn’t foresee that her losses and time might be covered. And while she said that in both cases she came to the police station and tried getting some answers, she was “basically getting the cold shoulder,” which was one of her main concerns.

Ladouceur pointed out that while the venue for disputing any kind of charges, be it a traffic ticket or a criminal charge, is the court, if a person is dissatisfied with the police service they always can call the EPS chief or contact the Saskatchewan Public Complaints Commission.

“Not to say that that person may get the response from me that they are hoping for depending on the circumstances, but at least it’s a start to get that line of communication going,” said Ladouceur.

And while lack of communication with the police was one of the concerns, another question was why in both cases the officers were applying stricter measures. Jackson noted that in other situations known to her, which assumed impoundment (such as driving an unregistered vehicle), the officers used the discretion and ended up just giving a ticket. In this case, Ladouceur brought attention to the fact that officer discretion can be used in the situations that don’t put the public at risk, which is not the case when it comes to distracted driving.

“The impoundment for cellphone is the driving infraction, which puts people at risk … versus a vehicle that’s not registered doesn’t involve the person driving dangerously or driving distracted,” said Ladouceur.

He also pointed out that the new distracted driving legislation has just been specifically changed by the provincial government with a heavy emphasis on reducing fatalities, keeping roads safer and making sure that people are not driving distracted.

“Officers do have the mobility to use discretion … (But) we’ve always taken a very strict stand when it comes to cellphone use … The legislation is pretty clear on what those penalties are, we don’t pick and choose that’s a commercial vehicle, and it’s unfortunate, that’s something that obviously business operators or owners have to take up with their staff and make sure that they don’t usually utilize those devices while operating the company vehicle,” said Ladouceur.

And while Jackson brought up the question about the extra tickets the police, in her opinion, might be giving out to prove the productiveness of their work, Ladouceur pointed out that, in reality, their goal is the opposite.

“I would be very ecstatic as the chief if we didn’t have to give anybody fines, quite frankly. And I say it time and time again, there is a very easy way to avoid the fines and it’s just – abide by the law and abide by the rules of the road. And if you feel that you weren’t in violation, there is a process for that through the court,” said Ladouceur.  

Even though the court process may cause inconvenience to people or businesses involved, for the police it’s the public safety that comes first.

“There is this big misconception that the officers are there and they love to give tickets, and we hear it all the time, and I keep telling people … when we hear comments about window tint (etc.), these are the laws that the province creates, we don’t design them, the province creates them for safety reasons and to enhance the safety, we are the ones that then have to enforce those laws,” said Ladouceur.

And while every story has more than one side to it, in Jackson’s case now it will be up to the judge to decide on whose side the truth is.

© Copyright Estevan Mercury

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