The defendant was charged with driving while holding a hand-held wireless communication device contrary to section 78.1(1) of the Highway Traffic Act.
The Crown alleged the defendant was holding a cell phone to his ear while driving through a tunnel.
The defendant testified he was holding a wireless speaker device that had fallen from its dashboard mount and was not actively using a cell phone at the time of the alleged offence.
The court found a reasonable doubt regarding whether the defendant was actually talking on a cell phone based on the officer's observations and lack of direct evidence of a cell phone.
However, the court determined that the wireless speaker device itself constitutes a wireless communication device under the broad interpretation of the legislation.
The defendant was found guilty of holding a wireless communication device while driving, as the device was not securely mounted as required by regulation and the defendant failed to demonstrate due diligence by picking it up while driving rather than waiting to safely pull over.
