Court Information
Court: Ontario Court of Justice, Toronto, Ontario
Parties:
- Prosecution: Her Majesty the Queen
- Defendant: Lorry Ann Grech-Vennare
Counsel:
- I. Verrelli for the Prosecution
- P. Martin, Agent for the Defendant
Judge: J. Opalinski J.P.
Heard: September 25, 2012
Delivered: May 8, 2013
Introduction
The defendant, Lorry Ann Grech-Vennare (hereinafter referred to as the defendant) is charged on the 9th day of January, 2012 at 10:45 am., at northbound Weston Road to Doris Spencer Road, in the City of Toronto, with the offence of drive hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8.
The defendant by way of her agent Mr. P. Martin entered a plea of not guilty on September 25, 2012. The court heard evidence only from Toronto Police Officer Trisha Barbero.
Charges
- Section 78.1(1) of the Highway Traffic Act, supra, provides that:
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.
Issue
- The issue before the court is: whether or not the defendant did drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages in contravention of section 78.1(1) of the Highway Traffic Act, supra.
Argument for the Prosecution
- The prosecution submits that the officer's evidence is clear and concise. She observed the defendant operating a motor vehicle while holding a black cellular device and texting with her fingers. When the defendant was stopped the black cellular device was on the passenger seat and it was the same device that the officer saw in the defendant's hands when she was travelling toward the officer. The defendant was in contravention of section 78.1(1) of the Highway Traffic Act, supra.
Argument of Agent for Defendant
- The agent for the defendant has made an argument that the case law is up in the air and that for the prosecution to make out its case they must establish beyond a reasonable doubt that the device is capable of being used for communication. The prosecution has not established this evidence as the only evidence before the court is that the defendant was stopped by the officer because she believed that the defendant had a cell phone in her hand, but the officer did not confirm the make or model of the device and more importantly she did not confirm or establish that the device is capable of communication.
Evidence for the Prosecution
The court heard evidence from Toronto Police Officer Trisha Barbero.
The evidence of Officer Trisha Barbero may be summarized as follows:
(a) On January 9th, 2012 at approximately 10:45 am, Officer Trisha Barbero was parked 5 meters east of the east curb of Weston Road and 2 metres south of the south curb of Doris Spencer Road, in a vacant parking lot, for the sole purpose of enforcing motor vehicle offences such as operating a motor vehicle while holding or using a cell phone.
(b) The officer had a clear, unobstructed view of the intersection of Weston Road and Doris Spencer Road. The intersection of Weston Road and Doris Spencer Road is a T intersection with Doris Spencer Road running west from Weston Road. Weston Road is a four lane highway, with two lanes running northbound and 2 lanes running southbound. Doris Spencer Road is a two lane highway with the westbound lane running from Weston Road and the eastbound lane ending at Weston Road.
(c) The officer observed the defendant travelling northbound on Weston Road in lane 1, in the City of Toronto. The defendant was driving a 2012 Black Dodge Caravan. She was stopped on Weston Road at Doris Spencer Road, waiting for traffic to clear so that she could make a left hand turn onto Doris Spencer Road.
(d) Officer Barbero observed the defendant to be holding a black cell phone with two hands just in front of her face. The officer could see the screen of the cell phone from her location and observed the Defendant to be looking down at the cell phone, using both fingers on her phone texting. She had a side view of the defendant's vehicle and as such was looking at the defendant through the passenger side window. She never lost sight of the defendant's vehicle.
(e) The defendant turned left into Doris Spencer Road and the officer followed and stopped her. A demand was made for a driver's licence, ownership and insurance and the defendant produced valid documentation. Upon being stopped, the officer looked into the defendant's vehicle and observed a black cell phone on the passenger's seat, which matched the cell phone the officer had originally observed the defendant to have had in her hands.
(f) The officer could not make out the exact model number or make of the device she saw on the passenger's seat, nor could she confirm that the unit was operational. However, in her opinion why would someone be holding a device when driving that was not operational.
(g) The Officer was absolutely sure that the defendant was texting otherwise she would not have pulled her over. The defendant was holding the phone with two hands and the officer saw the defendant's fingers moving. She did not ask the defendant who she was texting or communicating with as she did not believe that it was relevant.
Evidence for the Defence
- The defendant chose to call no evidence.
The Law
Categorization of Offence
The defendant is charged with the offence of drive hand-held communication device pursuant to section 78.1(1) of the Highway Traffic Act, supra.
Prior to continuing any meaningful analysis of the case law with regard to the offence of drive hand-held communication device, the court must determine which category of offences this offence falls into.
R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 sets out the three categories of offences. These three categories of offences are mens rea, strict liability and absolute liability. Dickson J stated:
"Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;
Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability to proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event. These offences may properly be called offences of strict liability.
Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault."
This court must ask the question: is the offence that the defendant is charged with a mens rea, strict liability or absolute liability offence? As Justice Dickson points out in R. v. Sault Ste. Marie, supra, for an offence to be categorized as a mens rea offence it should have contained words that purport some mental element such as 'willfully,' 'with intent', 'knowingly' or 'intentionally'. These are typically criminal offences where as public welfare offences are prima facie strict liability offences. While the majority of public welfare offences are presumed to be strict liability offences, in the absence of language to the contrary, there are some offences that are still referred to as absolute liability offences.
Hutchinson, Rose & Downes in The Law of Traffic Offences 3rd Edition, Carswell c. 2009, state that while there is a presumption that regulatory offences will be classified as strict liability offences, 'in determining whether an offence ought to be interpreted as one of absolute liability rather than strict liability, the courts will examine: the overall regulatory pattern adopted by the Legislature; the subject matter of the legislation; the importance (or severity) of the penalty; and the precise language used in the statute creating the offence.' (at p. 17) Further 'if the language would seem to invite no possible exception to enforcement this will speak in favour of a finding of absolute liability. If it is impossible or impracticable to enforce the prohibition if the offence is classified as strict liability, then the courts will be inclined to accept the prosecutor's contention that it is properly considered to be an offence of absolute liability'. (at p.17-18) The more complex the language of the statute, the more inclined the court will be to find the offence a strict liability offence which gives the defendant an opportunity to raise a defence of due diligence. 'If universal compliance is essential or important to the proper operation of the regulatory regime in question, then the court will be more inclined to conclude that the offence is one of absolute liability.' If there is a possibility of imprisonment, then the offence should not be categorized as an absolute liability offence. If the legislative language clearly sets out that an offence is an absolute liability offence, this will be sufficient to make it so, although the mere use of such words as shall do not in and of itself make an offence an absolute liability offence. (at p. 18)
The court in the decision of R. v. Chadwick [2011] O.J. No. 3748 found that the wording of the section purports that the offence is an absolute liability offence and as such 'the prosecutor is only required to prove, beyond a reasonable doubt, that the defendant committed the offence of driving with a hand-held device'. (at para 8)
At the same time the court in the decision of R. v. Petrovic [2012] O.J. No. 4185 held a contrary position citing that section 78.1(1) should be regarded as a strict liability offence. The court merely adopted the position taken in Regina v. Marrocco, 2012 ONCJ 535 (Ont. C.J.) (at para 15) and the position reflected by the Supreme Court of Canada in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 whereby it was held that "absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent". (at para 13)
If one looks at the 4 points referred to by Hutchinson, Rose & Downes in The Law of Traffic Offences supra, the wording of section 78.1(1) of the Highway Traffic Act supra would invite no possible exception to enforcement; it is not complex in its nature; the penalty does not carry with it the possibility of incarceration; and the precise language of the legislation does explicitly use wording such as 'shall' which purports an offence of absolute liability when read in its totality.
Consequently, this court finds that the offence of 'drive hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8.' is an absolute liability offence.
- Hutchinson, Rose & Downes in The Law of Traffic Offences supra at p. 14 further point out that while the prosecution must prove beyond a reasonable doubt the actus reus of the defendant and defences that operate 'to negate the mental aspect of the offence such as mistake of fact have no application', the defendant may have the benefit of calling certain defences which 'operate to defeat the guilty act' such as involuntariness, automatism, duress, necessity, insanity, de minimis non curat lex, self-defence and act of God. By raising any of these defences which are open to the defendant, the defendant need only raise a doubt to be entitled to an acquittal. (at p. 15)
Interpretation of "Holding" and "Using"
In R. v. Kazemi 2012 ONCJ 383, [2012] O.J. No 2826 the appellant at trial gave evidence stating that her cell phone which had been on her seat had fallen onto the floor and that when she stopped for a red light at the intersection she retrieved her phone from the floor of her car. She had not been using it on the night in question and introduced cell phone records to corroborate this point. The officer had testified that he had seen her holding an opened black Nokia flip cell phone in her right hand. At trial she was convicted of violating section 78.1(1) of the Highway Traffic Act, supra, the evidence of the officer was accepted as it was found that by merely holding the device was enough to have the elements of the offence made out and that it was not necessary to hear evidence that the cell phone was operational or capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
The appellant raised three issues in her appeal:
First, her right to a fair trial was compromised by a misleading notice of trial;
Second, that the word holding in the said section of the statute should be interpreted so as to mean holding for the purpose of using the wireless device in the manner of sending or receiving communication;
Third, that the prosecution must prove that the device is operative at the time when the defendant was holding the said device.
- Justice Nakatsuru in R. v. Kazemi, supra, sets out in great detail principles, which the court should consider when analysing the offence of drive with hand-held communication device. First the court should look at the interpretation given to the words "holding" and "using" a hand-held wireless communication device or other prescribed device. Justice Nakatsuru makes reference to Driedger's Construction of Statute which states at p. 87:
Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament.
An argument was made out by the appellant in R. v. Kazemi, supra, that a 'literal interpretation of holding would lead to absurd results where a person could be penalized for holding a cell phone even when he or she had no intention of using it'. (at para 15) In essence what the appellant attempted to argue was that the words while holding or using in section 78.1(1) of the Highway Traffic Act, supra should be read separately because the two words are separated by the word or and that holding should be interpreted in such a manner to mean holding for the purpose of sending or receiving communication wirelessly. The appellant further argued that she had not used her phone at the relevant time and that it was incumbent upon the prosecution to prove that the cell phone was operative at the time when it was being held in that it was capable of sending or receiving wireless communication. At trial it was held that the offence was made out if the Defendant was either holding or using the hand-held communication device and she was holding a cell phone that was flipped open.
Justice Nakatsuru held that:
"Section 78.1(1) prohibits the 'holding or using' of a wireless communication device. If holding for the purpose of receiving or transmitting is read into the provision, then the meaning of 'holding' would collapse into 'using' and would make the employment of the word by and large redundant. This could not have been the intention of the legislature".
Consequently reference to both words must give meaning to both words, otherwise the legislation would have made reference to the words as 'holding and using' and not 'holding or using'.
Justice Nakatsuru further held that it is necessary to look at the intent of the legislature when drafting section 78.1(1) of the Highway Traffic Act, supra. The overall intent of the legislation was road safety and to achieve that goal both the holding and using of wireless communication devices was sought to be addressed through the legislation.
The Honourable J. Bradley, Minister of Transportation at the time when Bill 118, Countering Distracted Driving and Promoting Green Transportation Act, 2009 was introduced, summarized the legislation as follows:
'Our eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cell phones while driving. The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads. For safety's sake, drivers should focus on one thing and one thing only: driving.' (at para 19)
Thus the purpose and intent of the legislation was to stop people from being distracted when driving by talking or texting when they are driving.
Justice Nakatsuru found that when looking at the purpose and intent of the legislation the words "holding" or "using" a hand-held wireless communication device 'must be interpreted in a manner that has regard to the design and function of such devices' and in particular the word "holding" should be interpreted contextually with regard to 'other words in the provision' and the objective of the legislation.
Justice Nakatsuru concluded that when looking at the plain meaning of the word holding it should 'require more than merely touching or a brief handling of such a device. It must mean more than simply possessing or carrying a device'. (at para 23)
Consequently, what is central to Justice Nakatsuru's decision is the interpretation of the word "holding". If we accept that the appellant was not using her cell phone as she gave evidence to that effect but picked up her phone from the floor to put it on the seat beside her from where it had fallen, when stopped at a red light and when it was safe to do so, then R. v. Kazemi, supra, stands for the proposition that a momentary handling of a cell phone does not fall within the meaning of "holding" as set out in section 78.1(1) of the Highway Traffic Act, supra. It is on the second grounds sought on appeal that Justice Nakatsuru granted the appeal and acquitted the appellant.
Conflicting Case Law
It is interesting to note that the court in R. v. Chadwick, supra, took the position that 'the defendant was guilty by virtue of holding the device in his hand' as the legislation made it clear that there 'should be no distraction in the hands of drivers while operating a motor vehicle whether the hand-held wireless communication device was working or not.
The evidence of the defendant had been that he had two devices and opened his LG flip phone to try to pair it with his blue tooth device. The defendant gave evidence that the phone was not working but that he was driving with the phone in his hand. He was not trying to make a call and only held the LG device briefly to his ear to see if it was working and determined that it was dead and as such not capable of transmitting wireless communication of any kind. There was no consideration whatsoever with regard to how the device was held. The mere holding of the wireless hand-held communication device caused the Defendant to be in violation of section 78.1(1) of the Highway Traffic Act, supra.
In R. v. Kazemi, supra, Justice Nakatsuru went on to consider the third ground sought in the appeal, that being, whether or not the prosecution must prove that the device is operable. Justice Nakatsuru once again addressed the wording of the statute and the intent of the legislation and concluded that all the prosecution has to prove is that the device is a hand-held communication device and this was done. As such the appellant was not successful on the third ground of her appeal. (at para 29)
To place any other onus on the prosecution could ultimately lead to the police having to confiscate wireless communication devices as evidence to prove their ability to have been operational at the time, which could be seen as an inordinate invasion of the privacy rights of the individual, given the amount of personal information that may be contained on such devices.
In R. v. Pizzuro [2012] O.J. No. 860, Justice Beatty took the opposite approach. The evidence at trial was that the officer passed the Defendant and saw a light emitting from a phone that he had in his left hand while driving. The defendant was either reading or texting and when he saw the officer he dropped the phone. The defendant was found guilty of the offence at trial.
On appeal, the defendant argued that the key element of the offence was not proven, namely, it was not shown by the prosecution that the device was capable of receiving or transmitting telephone communications, electronic data, mail or text messages even if the defendant is found to be holding such a device.
The court in R. v. Pizzuro, supra, found that the only evidence adduced was that the defendant appeared to be driving with a cell phone in his hand. The prosecution must also produce evidence that the device is capable of receiving or transmitting telephone communications, electronic data, mail or text messages and this was not done. The court held that this was an essential element of section 78.1(1) of the Highway Traffic Act, supra, and because the prosecution had not produced any evidence to prove this essential element of the said offence, Justice Beatty allowed the appeal.
In R. v. Gill [2012] O.J. No. 2511, Justice Ready held that the officer in his evidence had said that he clearly observed the defendant to be holding a cell phone to his ear and to be talking. The defendant was convicted at trial as the justice of the peace had concluded that the device, being a cell phone, was a hand-held communication device. Justice Ready upheld the trial justice's decision, citing that there was no other common sense conclusion that could have been reached by the justice of the peace at trial than to have found that a cell phone is a wireless communication device and that judicial notice can be taken to that effect, given the evidence presented at trial that the device was positioned at the defendant's ear, the defendant appeared to be talking, there was no one else in the car with the defendant and when stopped by the officer the device was observed by the officer in the console to be accessible by the defendant.
Analysis
This court finds that it is necessary to look at each part of section 78.1(1) of Highway Traffic Act, supra, in order to establish an appropriate test to be applied to determine whether or not the elements of the offence have been made out beyond a reasonable doubt, by the prosecution.
The questions that the court should ask are as follows:
First, is the person driving a motor vehicle on a highway;
Second, is she/he doing so while holding or using a hand-held wireless communication device or other prescribed device;
Third, is that device capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
Consequently, the person must be driving a motor vehicle on a highway while either holding or using a hand-held communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.
If the prosecution cannot prove beyond a reasonable doubt through the evidence they adduce that an individual is driving a motor vehicle on a highway while holding or using a device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages, then the elements of the offence have not been made out.
This court accepts the reasoning in R. v. Kazemi, supra, that the momentary handling of a hand-held wireless device does not constitute holding as envisioned by the spirit and intent of the legislation. 'Holding', as defined in Webster's New Universal Unabridged Dictionary Deluxe Second Edition, Dorset & Baber, means the act of keeping or retaining. Using is defined as to put or bring into action or service, to employ for or apply for a given purpose, to practice, to exercise, to consume to exhaust. Capable means: able to hold, contain or receive.
However the use of the word or between the words holding and using requires that the prosecution need only prove either or, although it may be suggested that in most instances an individual needs to hold the device in order to use it and as such they are holding it so as to use the device. Nevertheless the individual can be using the device without holding it and that would place him or her in violation of section 78.1(1) of the Highway Traffic Act, supra, unless he or she is driving in a hands-free mode which is allowed pursuant to section 78.1(3) of the Highway Traffic Act, supra, or falls within one of the exceptions contained in subsections 4, 5, 6 or 7.
This court accepts that the court can take judicial notice that a cell phone is a wireless hand-held communication device and that the prosecution by the plain use and meaning of the words of the statute need only show that this device is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. The prosecution need not show that this device was actually working at the time of the offence. To be capable of working means that it can work in receiving or transmitting telephone communications, electronic data, mail or text messages. To extend this beyond this point would require the officer to seize the device as evidence that it was actually working when, an individual was stopped by the officer and charged pursuant to section 78.1(1) of the Highway Traffic Act, supra. I do not believe that taking such extreme measures was the intent of the legislation.
It may be suggested that in R. v. Kazemi, supra, the court did take notice of the Defendant's evidence that her cell phone records showed she had not made or received any telecommunication be it phone or electronic communication at the time that the officer alleged in his evidence that it appeared to him that the defendant was punching numbers on her cell phone. He did not actually observe this and the court focused in its analysis on 'holding' rather than 'using' the said device and found that momentary holding for the purpose of retrieving a phone from the floor of a vehicle to put it on the seat, in a safe manner while stopped for a red light, did not constitute 'holding' as envisioned by the legislation.
In our fact situation, the officer observed the defendant to be travelling on a highway holding a black cell phone with her fingers moving in the motion of texting. When the officer stopped the defendant, she saw the same black cell phone that she had originally seen the defendant to be holding and which caused the officer to execute the stop, on the front passenger's seat of the defendant's vehicle.
While the officer gave evidence that she could not make out the exact make and model of the cell phone the court can take judicial notice that a cell phone is a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. It is not necessary that it be capable of doing all of the above as there may be some phones that send and receive telephone communications but either do not or have not been set up to send or receive electronic data, mail or text messages.
Unlike the case of R. v. Kazemi, supra, this court has heard no evidence to refute the evidence of the officer that the defendant was operating a motor vehicle on a highway while holding a black cell phone up to her face with two fingers moving in the motion of texting. As such the court finds that the prosecution has made out the elements of the offence beyond a reasonable doubt.
Disposition
- For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant operated a motor vehicle while holding and using a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages on January 9, 2012. The court finds the defendant guilty of contravening section 78.1(1) of the Highway Traffic Act, supra.
Dated the 8th day of May, 2013, at the City of Toronto
"J. Opalinski"
Joanna Opalinski J.P.
Corrigendum
On May 8, 2013 I rendered judgment in the above matter.
Upon re-reading my judgment, I concluded that although I had clearly indicated the source of my reasons for treating the offence as one of "absolute liability," I have decided that in fact it would have been preferable for me to have specifically made such a ruling.
I am satisfied that there is no prejudice to the defendant whatsoever by adding this ruling per se, since it was clear that I had rendered my decision based on my treatment of the offence as one of "absolute liability."
Accordingly, I make the following corrigendum to the end of paragraph #17:
"Consequently, this court finds that the offence of 'drive hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8.' is an absolute liability offence."
Dated the 24th day of May, 2013, at the City of Toronto.
"J. Opalinski"
Joanna Opalinski J.P.
Ontario Court of Justice Toronto