Her Majesty the Queen v. Pizzurro[^1]

[Indexed as: R. v. Pizzurro]

Ontario Reports

Court of Appeal for Ontario,

Laskin, Goudge and Watt JJ.A.

September 27, 2013

117 O.R. (3d) 779 | 2013 ONCA 584

Case Summary

Criminal law — Provincial offences — Driving while holding hand-held wireless communication device — Section 78.1(1) of Highway Traffic Act not requiring Crown to prove that cellphone held by driver while driving was capable of receiving or transmitting telephone communications, electronic data, mail or text messages — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 78.1(1).

The defendant was charged with driving while holding a hand-held wireless communication device contrary to s. 78.1(1) of the Highway Traffic Act ("HTA") after a police officer saw him driving with a cellphone in one hand, typing or reading information on it. He was convicted. His appeal was allowed on the ground that an essential element of the offence under s. 78.1(1) of the HTA is that the cellphone be capable of receiving or transmitting telephone communications, electronic data, mail or text messages, and that the Crown had failed to prove that element. The Crown appealed. [page780]

Held, the appeal should be allowed.

Section 78.1(1) of the HTA does not require that the cellphone used or held by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages. That requirement applies to other devices prescribed by regulation, not to cellphones.

Cases referred to

R. v. Kazemi (2013), 117 O.R. (3d) 300, [2013] O.J. No. 4300, 2013 ONCA 585, 49 M.V.R. (6th) 179

Statutes referred to

Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009, c. 4, s. 2

Highway Traffic Act, R.S.O. 1990, c. H.8, s. 78.1(1), (7)

APPEAL from the judgment of Beatty J. of the Ontario Court of Justice dated January 30, 2012 allowing the appeal from the conviction entered by Justice of the Peace S. Evans, [2011] O.J. No. 6218 (C.J.).

Jameson W. Clow, for appellant.

Brady Cunningham, amicus curiae.

Hugo Pizzurro, appearing in person.

The judgment of the court was delivered by

[1] GOUDGE J.A.: — On February 14, 2011, the respondent was driving southbound on Highway 11. He was observed by a police officer to have a cellphone in one hand. It appeared to the officer that the respondent was either typing or reading the information on it.

[2] The respondent was charged with a breach of s. 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA"), as amended by the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009, c. 4, s. 2. It reads:

Wireless communication devices

78.1(1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

(Emphasis added)

[3] The trial court rejected the respondent's argument that there was no evidence that what the officer observed him using was an operating cellphone, and that this was required in order to convict him. The respondent was found guilty and fined $125.

[4] On appeal to the Ontario Court of Justice, the appeal judge allowed the appeal and dismissed the charge. He concluded that [page781] an essential element of the offence under s. 78.1(1) of the HTA is that the cellphone be capable of receiving or transmitting telephone communications, electronic data, mail or text messages. He held that the burden rests upon the prosecutor to prove the essential elements of the offence, and in this case the prosecutor had failed to do so.

[5] The Crown, represented by the District Municipality of Muskoka, appeals with leave to this court.

Analysis

[6] The respondent has never disputed that the cellphone he was observed to have in his hand while driving was a hand-held wireless communication device. The sole issue is whether the Crown must prove that the cellphone was capable of receiving or transmitting in order to convict him under s. 78.1(1) of the HTA.

[7] For the following reasons, I conclude that the Crown need not do so.

[8] Section 78.1(1) applies to two kinds of devices: hand-held wireless communication devices (that is, cellphones) and other devices prescribed by regulation. Section 78.1(7) gives the minister the power to make regulations prescribing devices for the purposes of s. 78.1(1).

[9] In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices but not to cellphones. In its ordinary meaning, the wording of s. 78.1(1) provides that it is prescribed devices that must have that capability. This constitutes the legislature's direction to the minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. On the other hand, cellphones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them.

[10] Moreover, to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution. The legislature could not have intended that result.

[11] The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally at cellphones. Observing a driver holding or using a cellphone while driving would not be enough if this requirement existed. For each case, the police would also have to find ways to immediately acquire and test the cellphone in order to determine that it was capable of receiving or transmitting. I do not think that the legislature would have intended such a burden to [page782] be imposed by a section that is otherwise designed to operate in a simple and straightforward way.

[12] It would also be unreasonable for prosecution. Where, for example, the charge is using a cellphone while driving, to require the Crown, once it has proven the use of a cellphone to communicate, to also prove that the cellphone that was being used to communicate is capable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden.

[13] Finally, the legislative purpose of s. 78.1(1) must be considered. In R. v. Kazemi [(2013), 117 O.R. (3d) 300, [2013] O.J. No. 4300, 2013 ONCA 585] (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cellphones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cellphone while driving. To hold out the possibility that the driver may escape the prohibition because the cellphone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

[14] For these reasons, I conclude that s. 78.1(1) of the HTA does not require that the cellphone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

[15] I would therefore allow the appeal and restore the conviction.

Appeal allowed.

[^1]: Vous trouverez la traduction française à la p. 782, post.