A. Smart

The appellant appealed his convictions on four counts relating to operating an electrical contracting business without a valid license and failing to file inspection applications.

The trial proceeded in the appellant's absence.

The appeal court found that the trial judge erred in law by admitting: (1) statements made by the appellant to an investigator without a voir dire on voluntariness and whether the investigator was a person in authority; (2) business records from the Electrical Safety Association without compliance with hearsay exceptions; and (3) evidence regarding identification was properly admitted.

The court allowed the appeal, set aside the convictions, and ordered a new trial with the appellant required to appear in person.

The court also commented critically on the sentencing decision, noting the trial judge imposed imprisonment beyond what the Crown requested without proper justification or notice to the absent defendant.

The defendant was charged with holding a handheld communication device while driving contrary to the Highway Traffic Act.

During trial, the defendant moved to exclude the charging officer's electronic notes on the grounds that the officer could not attest to the security of the notes or confirm that no one else had access to alter them while they were outside his personal possession.

The court ruled that the officer could use the notes to refresh his memory, finding that while the officer lacked knowledge of the technical security features of the electronic system, the absence of evidence of actual alteration, combined with the officer's independent recollection and the disclosure of the notes to the defence, was sufficient to permit their use as a memory aid.

The defendant was charged with driving while holding a hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act.

A police constable observed the defendant holding a dark object in his right hand while driving a van on Speers Road in Oakville.

The constable identified the object as a cell phone based on his specialized experience in distracted driving enforcement.

The defendant's counsel challenged whether the object was definitively a cell phone, given the observation distance of 12 feet, light rain conditions, and lack of detailed description.

The court found the constable's lay opinion credible and reliable, considering his vantage point, specialized experience, and the subsequent observation of a matching cell phone on the vehicle's console.

The defendant was found guilty.