The defendant was charged with driving while holding or using a hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act.
The prosecution's sole evidence came from a police officer who observed the defendant's vehicle drifting and, upon drawing alongside, claimed to observe the defendant holding a cell phone in his right hand at face level.
The officer testified his observations were made from a distance of 150 to 200 metres while both vehicles were in motion at approximately 40 km/h in darkness with artificial street lighting.
Upon stopping the vehicle, the officer observed what appeared to be the same device attached to a holding device on the left side of the steering wheel.
The defendant did not testify.
The court found the prosecution failed to prove beyond a reasonable doubt that the defendant was holding a cell phone, as the officer's initial observation from such a vast distance lacked reliability, and the officer's subsequent certainty was based primarily on the defendant's utterance, which the court declined to hear as rebuttal evidence.
