Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— AND —
Jatinderbir Randhawa
Before: Justice of the Peace Kenneth W. Dechert
Heard on: March 23, 2018 and June 14, 2018
Reasons for Judgment released on: July 6, 2018
Burlington Provincial Offences Court
Counsel
For the prosecution: J. Stewart
For the defendant Jatinderbir Randhawa: G. Ellis, paralegal
Statutes, Regulations and Rules Cited
Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsection 78.1(1).
Cases Cited
- Regina v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.)
- Regina v. C.L.Y., 2008 SCC 2 , [2008] 1 S.C.R. 5
- Regina v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788
- Regina v. Edwards, 2012 ONSC 3373 , [2012] O.J. No. 2596 (Ont. S.C.J.)
- Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.)
- Regina v. Morin, [1988] 2 S.C.R. 345
- Regina v. Pizzurro, [2013] O.J. No. 4299 (Ont. C.A.)
- Regina v. W.(D.), [1991] 1 S.C.R. 742
Judgment
K.W. DECHERT, J.P. (orally):
Introduction
1Under Certificate of Offence no. 1260-7477641B, the defendant Jatinderbir Randhawa stands charged that he on March 23rd, 2017 at QEW (Queen Elizabeth Way) eastbound, west of Guelph Line, in the municipality of Burlington, did commit the offence of "Drive-Hand-Held Communication Device", contrary to the Highway Traffic Act, section 78.1(1).
2The trial of the subject charge began before me on the 23rd day of March, 2018, when the defendant entered a plea of not guilty. It continued before me on the 14th day of June, 2018, when it was completed. The proceeding was then adjourned to July 6th, 2018, for my judgment.
3The prosecution, the City of Burlington, was represented by Ms. J. Stewart. The defendant was represented by paralegal, Mr. G. Ellis.
The Law
4The subject charge is defined by subsection 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A.". That subsection reads as follows:
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.
5In his decision in Regina v. Pizzurro, [2013] O.J. No. 4299 (Ont. C.A.), at para. 8, Goudge J.A. stated, in part, as follows:
Section 78.1(1) applies to two kinds of devices: hand-held wireless communication devices (that is, cell phones) and other devices prescribed by regulation. …
6I am, therefore, able to take judicial notice of the fact that a cell phone is a "hand-held wireless communication device", for purposes of subsection 78.1(1) of the H.T.A.
The Issues
7The ultimate issue in this proceeding is whether or not the prosecution has proven all of the essential elements of the actus reus of the subject offence, to the standard of proof beyond a reasonable doubt.
8Based upon the undisputed evidence before me, the following elements of the offence have been proven beyond a reasonable doubt:
That on the 23rd day of March, 2017, at 7:14 p.m., the defendant was driving a commercial motor vehicle, being a "straight truck", in the 4th eastbound lane (from the left), of the Queen Elizabeth Way, west of Guelph Line, in the City of Burlington;
That the Queen Elizabeth Way is a "highway" as defined by the H.T.A.
9The sole prosecution witness testified that at the said time, the defendant was holding a cell-phone in his left hand. On the other hand, the defendant denied holding a cell-phone at the material time. He asserted that he was using his cell-phone as a G.P.S. directional device, while it was situated in a "magnetic mount", attached to the dashboard of the truck.
10The remaining issue in this proceeding is whether the defendant was holding a cell-phone while he was driving the truck on the said highway. I must now determine whether the prosecution has proven that issue, beyond a reasonable doubt.
11This is a case which turns on the underlying issue of the credibility of the evidence. Accordingly, I am obliged to apply the principles enunciated by the Supreme Court of Canada in its decision in Regina v. W.(D.), [1991] 1 S.C.R. 742. Furthermore, I must remind myself that the burden of proof relative to the elements of the actus reus of the subject offence, is always on the prosecution, and that the defendant is presumed innocent until proven guilty.
12In paragraphs 26 to 28 of his decision in Regina v. W.(D.), supra, Cory J. stated the principles to be applied when considering the credibility of conflicting evidence in a criminal or quasi-criminal proceeding, as follows:
…It is incorrect to instruct a jury in a criminal case that, in order to render a verdict, they must decide whether they believe the defence evidence or the Crown's evidence. Putting this either/or proposition to the jury excludes the third alternative; namely, that the jury, without believing the accused, after considering the accused's evidence in the context of the evidence as a whole, may still have a reasonable doubt as to his guilt.
In a case where credibility is important, the trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Second, if they do not believe the accused's evidence but still have a reasonable doubt as to his guilt after considering the accused's evidence in the context of the evidence as a whole. See R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont. C.A.), approved in [R. v. Morin [, [1988] 2 S.C.R. 345]](https://www.minicounsel.ca/scc/1988/8).
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. …
13In their decision in Regina v. Hull, [2006] O.J. No. 3177 (Ont. C.A.) at para. 5, Simmons, Armstrong and Rouleau JJ.A. provided the following guidance as to the application of the W.(D.) principles:
W.(D.) and other authorities prohibit triers of fact from treating the standard of proof as a credibility contest. Put another way, they prohibit a trier of fact from concluding that the standard of proof has been met simply because the trier of fact prefers the evidence of Crown witnesses to that of defence witnesses. However, such authorities do not prohibit a trier of fact from assessing an accused's testimony in light of the whole evidence, including the testimony of the complainant, and in so doing comparing the evidence of the witnesses. On the contrary, triers of fact have a positive duty to carry out such an assessment, recognizing that one possible outcome of the assessment is that the trier of fact may be left with a reasonable doubt concerning the guilt of the accused.
14In her decision in Regina v. Dinardo, 2008 SCC 24 , [2008] 1 S.C.R. 788, Charron J. described the "substance" of the W.(D.) instruction, in the following terms:
…In a case that turns on credibility, such as this one, the trial judge must direct his or her mind to the decisive question of whether the accused's evidence, considered in the context of the evidence as a whole, raises a reasonable doubt as to his guilt. Put differently, the trial judge must consider whether the evidence as a whole establishes the accused's guilt beyond a reasonable doubt. …
15I will now embark on an exercise of assessing the accused's exculpatory evidence in the context of the evidence as a whole, in order to determine whether the prosecution has proven that the defendant was at the relevant time, holding a cell-phone, beyond a reasonable doubt.
The Evidence
(i) The Testimony of Police Constable Jonathan Cannon
16Constable Cannon, of the Ontario Provincial Police, laid the subject charge against the defendant. He testified with the assistance of his investigative notes, which were made contemporaneously with the time of the subject events, for the purpose of refreshing his existing memory.
17The constable testified that on March 23rd, 2017 at 7:14 p.m., he was operating an unmarked police issued sports utility vehicle ("SUV"), in lane 2 (counting from the left) of 5 eastbound lanes of the Queen Elizabeth Way. At that time he observed a "straight truck" being driven in lane 4 to his right, by a male who he later identified as being the defendant, Jatinderbir Randhawa. He advised that Mr. Randhawa was holding a "white-faced phone with a black case" in his left hand, such that it was facing-up in front of him and away from him and such that the face of the phone was situated "towards the front window of the truck". The constable stated that Mr. Randhawa was holding the end of the phone up to his mouth and that he was speaking into it. During cross-examination, he advised that Mr. Randhawa "appeared" to be speaking into the phone as his "mouth was moving".
18In describing his vantage point, the constable testified that he made his observations of the defendant from his parallel position to the left of the defendant at a distance equivalent to the width of 2 highway lanes. He estimated this distance to be about 24 feet. He advised that he made his observations through the passenger side window of his police vehicle and through the driver's side window of the truck, neither of which were tinted.
19He testified that at the time of his observations, there were no vehicles situated in the lane to his right and that he had an unobstructed view of Mr. Randhawa holding a cell-phone. He noted that since he was making his observations from a distance equivalent to the width of 2 lanes, he had an optimal angle to look up and into the driver's cab of the truck, which was significantly higher than his SUV. During cross-examination, the officer stated that in making his observations into the cab of the truck, he did not need to "duck down", noting that he simply "turned" his head slightly, in order to observe the actions of the defendant in the cab.
20Constable Cannon testified that he first observed Mr. Randhawa holding the cell phone when he was travelling at a "highway" speed, of approximately 100 kilometres per hour in light traffic. He advised that once he had made the observation, he reduced his speed so as to pull into lane 4, behind the defendant's truck. He advised that he observed Mr. Randhawa holding the phone in his left hand, at the material time, for a period of three to four seconds, before pulling in behind him to effect a traffic stop.
21Constable Cannon testified that upon stopping Mr. Randhawa's truck, on the right shoulder of the highway, he approached the truck from its passenger side. He stated that he then opened the passenger side door and discovered a milk crate located on the floor of the truck cab, right beside the passenger door. He observed a "white I-phone with a black case" sitting in plain view on top of other "items", inside of the crate. He indicated that the said phone "appeared" to be the cell-phone that he had seen in Mr. Randhawa's left hand while he was driving the truck.
22Constable Cannon testified that he then "picked-up" the phone from the milk crate and its screen "lit up". He observed that the phone "had power" and that it was connected to "the Rogers cell phone service". The officer noted that Mr. Randhawa was the only occupant of the subject truck at the time of the traffic stop. The officer stated that while he did not see any other cell-phones in the cab at that time, he acknowledged the presence of a "cell-phone holder", which he described as a "magnetic mount", situated on the dashboard and located on the driver's side of the cab.
23In stating how he was able to satisfy himself that the object in Mr. Randhawa's left hand at the material time was a cell-phone, the officer stated that "it was clear to be a phone, from how it looked to how it was being used and then furthermore confirmed by the observance of it in the vehicle".
(ii) The Testimony of Jatinderbir Randhawa
24During the course of his examination-in-chief, Mr. Randhawa acknowledged that at the relevant time, he was driving a truck on the Queen Elizabeth Way. He advised that he was travelling towards Vaughan, Ontario, having commenced his journey in the City of Brantford. He stated that prior to leaving Brantford he entered his "directions" into his cell-phone and then placed it in a magnetic mount located immediately to the right of the steering wheel. While Mr. Randhawa acknowledged using the cell-phone as a global positioning system (G.P.S.) device, when it was contained in the mount/holder, he denied ever taking it out of the mount in order to hold it or speak into it while he was driving the truck.
25Mr. Randhawa testified that at the material time, while operating his truck on the highway at a "normal speed", he noticed the flashing emergency lights of a police vehicle behind him. He then pulled his truck over onto the right shoulder of the highway and stopped it on the shoulder. He advised that at this time his cell-phone was located in the magnetic mount. He stated that he did not take the phone out of the holder at any time while driving from Brantford to the location of the traffic stop.
26Mr. Randhawa stated that once he had stopped his truck on the shoulder, the police officer approached the passenger side of the vehicle. He advised that at this time, his cell-phone was no longer contained within the mount, but, in fact, was in a milk crate on the floor of the truck, near the passenger door of the cab.
27Mr. Randhawa testified that upon stopping the truck, he checked the "Google maps" on the cell-phone sitting on the mount. He stated that as the police officer was approaching his truck, he accidentally knocked the cell-phone off of the mount. He advised that he then picked-up the phone and placed it in the crate.
28In concluding his testimony-in-chief, Mr. Randhawa stated that he could not recall whether he received any telephone calls on his cell-phone while he was driving the truck that afternoon and evening. He advised that at the relevant time, he may have been moving his lips in order to sing a song which was playing on the radio.
29During cross-examination, Mr. Randhawa admitted that he was a truck driver by occupation having been so employed since 2011. He stated that on the day in question, he was using his cell-phone as a navigational aid while it was located in the cell-phone mount. He described the cell-phone as a white-coloured "I-phone 6".
30Mr. Randhawa advised that he first became aware of the presence of the police officer behind him, when the officer activated his emergency lights. He advised that once he was stopped on the shoulder, the officer approached the truck on its passenger side. He admitted that at that time the subject cell-phone was no longer on the mount, but was located in the milk crate.
31In explaining how the cell-phone ended up in the crate, Mr. Randhawa stated as follows:
When I was turning the steering wheel towards the right side and I was also watching the officer from which side he is coming, my hand hit the phone. It was close to the steering wheel and it fell down. I picked it up and put it there.
32Mr. Randhawa testified that the cell phone fell off of the mount onto the floor of the truck. He stated that he retrieved the phone from the floor and placed it in the crate. In answer to the prosecutor's query as to why he didn't put the phone back onto the magnetic mount, rather than in the crate, Mr. Randhawa stated as follows:
My attention was towards the officer that he was coming from the side and I could deal with him.
33Mr. Randhawa testified that once the police officer arrived at the truck, he opened the passenger side door and asked to see documentation and the cell-phone situated in plain view in the crate. He complied with the officer's request and handed the cell-phone to him. Mr. Randhawa stated that when the officer touched the screen to activate the cell-phone, its "home" screen was revealed.
Analysis
Issue – Whether the defendant was holding a cell-phone in his left hand at the material time?
34After carefully considering the totality of the evidence in this proceeding, I find that the prosecution has failed to establish, beyond a reasonable doubt, that Jatinderbir Randhawa was holding a cell-phone in his left hand, while he was driving the motor vehicle on a highway at 7:14 p.m., on the date in question. In reaching this finding, I have concluded that Mr. Randhawa's exculpatory evidence considered in the context of the evidence as a whole, has left me in a state of reasonable doubt as to his guilt.
35During his testimony, prosecution witness Constable Cannon presented as an honest witness, who testified in a neutral and professional manner. His version of the relevant events was stated in a clear and concise manner. He did not attempt to exaggerate or overstate his observations and the strength of his evidence was not diminished through cross-examination.
36Furthermore, while the officer's detailed description of the object in the defendant's left hand at the material time, as a "white-faced phone in a black case", bolsters the reliability of his non-expert opinion that the object was a cell-phone, I must not lose sight of the fact that this observation was made from a distance of approximately 24 feet, though two glass windows for a period of only three to four seconds. These latter factors significantly degrade the reliability of the constable's opinion that the object was a cell-phone. I am, therefore, only able to assign moderate weight to the officer's opinion that the thing in the defendant's left hand, was a cell-phone.
37Mr. Randhawa presented his exculpatory evidence in a direct and forthright manner. His testimony was internally consistent and his steadfast assertion that his cell-phone was, at all relevant times, contained within the cell-phone holder attached to his dashboard of his truck was not weakened through the prosecutor's intense cross-examination. His testimony that he did not hold a cell-phone at any time while he was driving his truck on a highway at the relevant time, may be characterized as genuine, and therefore credible. Furthermore, his explanation as to why his cell-phone was located in plain view, out of the cell-phone holder, in a crate located on the floor of the truck cab, contained adequate detail to be considered plausible.
38When I assess the totality of the evidence before me in accordance with the second branch of the W.(D.) instruction, I am left in a state of reasonable doubt as to whether the defendant was holding a cell-phone in his left hand immediately prior to the time that Constable Cannon directed him to pull off of the highway and stop on the shoulder. While I am unable to firmly believe the defendant's exculpatory evidence, when I consider his testimony in the context of the evidence as a whole, I conclude that his evidence is sufficiently credible to raise a reasonable doubt that he was holding a cell-phone in his left hand at the material time.
39During the course of his testimony, the defendant was unequivocal and consistent in his assertion that he did not hold a cell-phone in either of his hands, while driving on the highway at the relevant time. He steadfastly maintained that his cell-phone remained in the cell-phone holder attached to the dashboard of his truck, while he was driving on the highway at the material time, and that it had slipped out of the holder when he inadvertently knocked the phone out of the holder onto the floor of the truck cab, once the truck had come to a stop on the shoulder of the highway.
40The credibility of the defendant's testimony in this proceeding was not significantly diminished through cross-examination. While I do not completely believe the defendant's assertion that he was not holding a cell-phone at any time immediately prior to the time of the subject traffic stop, I find that I am not able to reject his exculpatory evidence in that regard. His testimony that the cell-phone remained in the magnetic cell-phone holder while he was driving the truck on the highway, weighed in the context of the evidence as a whole, may be considered to be reasonably true.
41In concluding that the defendant's exculpatory testimony, considered in the context of the totality of the evidence, has left me in a state of reasonable doubt as to his guilt of the subject offence, I have reminded myself of the "purpose" of the W.(D.) instruction as enunciated by Abella J. in her decision in Regina v. C.L.Y. 2008 SCC 2 , [2008] 1 S.C.R. 5, at para. 8; that the "verdict should not be based on a choice between the accused's and the Crown evidence, but on whether, based on the whole of the evidence, the [trier of fact is] left with a reasonable doubt as to the accused's guilt".
42I have not completely accepted nor completely rejected the prosecution or defence evidence. I acknowledge that there is a conflict in the evidence pertaining to the outstanding issue of whether the defendant was holding a cell-phone in his left hand at the material time. I am not able to resolve the conflicting evidence in that regard.
43In his decision in Regina v. Edwards, 2012 ONSC 3373 , [2012] O.J. No. 2596 (Ont. S.C.) at para. 20, Code J. defined the second branch of the W.(D.) instruction succinctly as follows: "The middle ground in W.D. is an 'alternative' to complete belief or complete rejection and arises where a trier cannot 'resolve the conflicting evidence' and cannot find 'exactly where the truth of the matter lay'…" In this case, I am not able to resolve the conflicting evidence, and while I do not completely accept the defendant's evidence, I am not able to reject it. It is sufficiently credible to leave me in a state of reasonable doubt as to whether he was holding a cell-phone in his left hand at the material time, for a period of 3 to 4 seconds, immediately prior to the time of the traffic stop.
44In conclusion, the defendant's exculpatory evidence herein, considered in the context of the evidence as a whole, has left me in reasonable doubt as to the remaining issue of whether he was holding a cell-phone in his left hand, for a brief period of time, at the material time. The prosecution has, therefore, failed to adduce sufficient evidence to prove, beyond a reasonable doubt, the essential element that the defendant was holding a hand-held wireless communication device while he was driving his truck on a highway. The defendant must, therefore, be acquitted of the subject offence.
The Decision
45The prosecution has failed to prove all of the essential elements of the subject offence against the Jatinderbir Randhawa, beyond a reasonable doubt. As stated above, the defendant's evidence considered in the context of the totality of the evidence in this proceeding, raises a reasonable doubt as to his guilt of the charge of drive-hand-held communication device, contrary to subsection 78.1(1) of the H.T.A.
46Jatinderbir Randhawa is, therefore, found not guilty of the subject offence and the charge is dismissed.
July 6, 2018
Signed: "Justice of the Peace Kenneth W. Dechert"