ONTARIO COURT OF JUSTICE
PROVINCIAL OFFENCE APPEALS
NEWMARKET
BETWEEN:
THE REGIONAL MUNICIPALITY OF YORK
— AND —
FUJIAN CONG
JUDGMENT ON APPEAL
Heard and Delivered: January 30, 2026.
Ms. Johnson agent for York Region
Mr. Cong ............................................................................................................ self-represented
KENKEL J.:
Introduction
1Constable Seevaratnam was investigating a motor vehicle collision in Markham when he saw Mr. Cong stop his car alongside the collision while in a live lane of traffic in order to take a photograph of the damaged cars. Mr. Cong was charged with driving while holding a wireless communication device contrary to s 78.1 of the Highway Traffic Act, RSO 1990, c H.8. (HTA) He was convicted at trial of the same offence.
2Mr. Cong applies to admit fresh evidence on appeal and alleges several errors at trial:
He applies to submit fresh evidence in the form of expert opinion evidence as to whether the vehicle was actually moving slowly at the time the photograph was taken as the officer described.
The officer’s evidence that his vehicle was in motion (5km) at the time he was taking photos of the collision was not credible.
The verdict was unreasonable as Mr. Cong submits that his evidence showed the vehicle was not in motion, so he was not driving at that moment as required under s 78.1.
The court failed to consider and apply the principles in R v WD, 1991 93 (SCC), [1991] SCJ No 26.
3For the reasons below, I would not admit the fresh evidence as it has no bearing on the case. I would not give effect to the other grounds of appeal.
Fresh Evidence
4Mr. Cong wishes to present fresh expert opinion evidence at a new trial to show that his vehicle wasn’t moving at the time he took the photographs with his cellphone.
5The proposed fresh evidence is not admissible as it does not satisfy the test set out in R v Palmer, 1979 8 (SCC), [1979] SCJ No 126. The evidence could have been obtained prior to trial. More importantly, the proposed evidence is not relevant to an issue at trial. Under this provision, it doesn’t matter whether the vehicle was in motion.
Statutory Interpretation
6The modern approach to statutory interpretation considers the words of an Act as read in their entire context and in their grammatical ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of the Legislature – R v JJ, 2022 SCC 28 at para 17.
7The word “drives” is not defined in s 1 of the HTA, but “driver” is someone who drives a vehicle on a highway. The use of the word “drives” in the context of s 78.1 is not focused on the motion of the vehicle or confined to vehicles that are moving. The purpose of the section is aimed at promoting public safety but ensuring that drivers keep their attention on the roads and not on hand-held devices.
8The provision applies to all drivers, not just those actively in motion. Drivers have to be aware of changes in traffic conditions including changing light signals and the presence of other vehicles and persons in the area. Mr. Cong’s decision to try to photograph a collision while in charge of his vehicle in a live lane of traffic is precisely the hazard that the section proscribes.
9Mr. Cong’s submission that the section requires a vehicle to be moving is not consistent with the limited statutory exceptions for parked vehicles that meet the criteria in 78.1(6). That subsection would not make sense if s 78.1 did not apply to vehicles not in motion no matter where they are on the roadway.
10This interpretation is consistent with the Ontario Court of Appeal decision in R v Tassone, 2007 ONCA 215, which held that “drives” under the HTA not does not necessarily require proof of movement. In that case the failure to wear a seat belt while stopped at a red light was held to satisfy the “drives” requirement of that section.
11This interpretation also appears consistent with the discussion in R v Kazemi, 2013 ONCA 585. While the issue in that case was the scope of the word “holding”, what was not an issue was the fact that the section applied to Ms. Kazemi who was stopped at a red light when she was observed to have a cellphone in her hand.
12I will also mention that this interpretation is consistent with the advice provided to drivers by the Government of Ontario website which advises that it is illegal to use a phone or hand-held device, “While you are driving, including when you are stopped in traffic or at a red light.”
The Credibility of the Officer
13The credibility findings at trial are to be given significant deference on appeal – R v Coristine, 2023 ONCA 517 at para 44. It was open to the Justice of the Peace to accept the officer’s evidence in this case. There is no basis on this record to interfere with that finding.
Failure to Apply WD
14Mr. Cong submits that it was an error for the Justice of the Peace to decline to apply the analysis in R v WD, 1991 93 (SCC), [1991] SCJ No 26.
15The WD case is about assessing the credibility of witnesses in the context of the burden on the prosecution to prove the charge alleged beyond a reasonable doubt. The officer and Mr. Cong gave different evidence as to whether the vehicle was moving slowly as Mr. Cong took a photo of the collision. The court declined to engage in a WD analysis because it didn’t matter whether the vehicle was moving. Even if Mr. Cong’s evidence was accepted to the exclusion of the officer’s evidence, the offence was still made out. The court did not err in declining to engage in a WD analysis in that context.
Conclusion
16The central issue in this appeal is Mr. Cong’s belief that the section prohibiting driving while holding a hand-held device should not apply unless a vehicle is in motion. That is not the law. Despite his carefully prepared arguments, the appeal must be dismissed.
Delivered: January 30, 2026.
Justice Joseph F. Kenkel