Court File and Parties

Court File No.: Halton – Burlington - Certificate of Offence No. 1260-2465450B

Date: 2015-01-30

Ontario Court of Justice

Between:

Her Majesty The Queen

— and —

Sean Fabian

Before: Justice of the Peace Kenneth W. Dechert

Heard on: September 19, 2014

Reasons for Judgment released on: January 30, 2015

Provincial Offences Court – Burlington, Ontario

Counsel:

G. Larson, for the prosecution

A. Smart, for the defendant

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, ss. 78.1(1)

Cases Cited

Regina v. Graat, [1982] 2 S.C.R. 819 (S.C.C.)

Regina v. Kazemi, 2012 ONCJ 383, [2012] O.J. No. 2826 (Ont. C.J.)

Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.)

Regina v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (Ont. C.A.)

Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.)

Sherrard v. Jacob, [1965] N.I.L.R. 151

Publications Cited

Paciocco, Mr. Justice David M. and Stuesser, Professor Lee, The Law of Evidence, sixth edition (2011, Irwin Law Inc.)

K.W. DECHERT, J.P. (orally)

Introduction

[1] In this case the defendant, Sean Fabian, stands charged that he on the 19th day of March, 2014 at Speers Road near Dorval Drive in the Town of Oakville, committed the offence of drive – hand-held communication device, contrary to the Highway Traffic Act, section 78.1(1).

[2] The trial of this proceeding began before me on September 19th, 2014, when the defendant entered a plea of not guilty to the charge. At that time, I received the testimony of Police Constable Conrad Bertasson and the final legal submissions of the parties. The proceeding was then adjourned until January 30th, 2015, for my judgment.

[3] The ultimate issue in this proceeding is whether the prosecution has proven all of the essential elements of the subject offence to the standard of proof beyond a reasonable doubt. In that regard I must remind myself that the prosecution bears this burden of proof throughout the trial and that the defendant is presumed innocent until proven guilty.

The Law

[4] 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.", 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.

[5] In his decision in Regina v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091 (Ont. C.A.), Doherty J.A. opined that the H.T.A. "is public welfare legislation designed to protect those who use the roads of the province" and that offences created by that Act "are properly regarded as public welfare offences". He noted that on the basis of the authority of the decision of the Supreme Court of Canada in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.) public welfare offences are "prima facie strict liability offences".

[6] In his decision in Regina v. Sault Ste. Marie (City), supra, Dickson J. wrote that public welfare offences would only fall into the category of offences which would require the prosecution to prove both the prohibited act and the existence of mens rea, if the statutory provision creating the offence contained words such as "wilfully', 'with intent', 'knowingly' or 'intentionally". It is noted that subsection 78.1(1) of the H.T.A. does not contain any such words and accordingly the subject offence may not be categorized as a mens rea regulatory offence.

[7] The offence of drive – hand-held communication device may, therefore, only be categorized as either a strict or absolute liability offence. Accordingly, if the prosecution is able to prove all of the elements of the actus reus against an accused, beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence. If the offence is one of strict liability, an accused is afforded the opportunity of avoiding liability for the offence, by proving, on a balance of probabilities, that in committing the offence he/she "took all reasonable care". On the other hand, if the offence falls into the exceptional category of absolute liability, it is not open to an accused to exculpate him or herself by showing that he or she "was free of fault".

[8] It is acknowledged that over the past four years, trial level jurisprudence of the Ontario Court of Justice interpreting the subject offence has differed as to the issue of whether the subject offence is one of strict or absolute liability. That issue has not yet been resolved by a binding appellate decision.

[9] In this case neither the prosecutor nor the defendant made any legal argument pertaining to the proper categorization of the offence. In particular, the Court did not receive any submissions from the prosecutor as to why subsection 78.1(1) of the H.T.A. should be interpreted in favour of an absolute liability categorization.

[10] Accordingly for the purpose of this proceeding only, I am of the view that the presumption that the subject offence is one of strict liability has not been rebutted. Therefore, if the prosecution is able to prove beyond a reasonable doubt, that the defendant committed the prohibited act, he will be found guilty of the offence unless he is able to prove on a balance of probabilities, that in committing the offence he took all reasonable care. If he is able to meet that burden, his presumed negligence is rebutted and he will be excused of liability for the offence.

[11] In his Provincial Offences Act appellate decision in Regina v. Kazemi, 2012 ONCJ 383, [2012] O.J. No. 2826 (Ont. C.J.), Nakatsuru J. stated that "a cell phone is a wireless hand-held communication device". In my view this statement permits me to take judicial notice that a cell phone is "a hand-held wireless communication device" in the context of subsection 78.1(1) of the H.T.A.

The Issues

[12] In her final submissions in this proceeding, the defendant's representative argued that the prosecution has failed to discharge its burden of proving, beyond a reasonable doubt, that at the relevant time, the defendant was holding a cell phone while driving a motor vehicle. It does not appear that the issue of the proof of any of the other elements of the actus reus of the subject offence is in dispute.

[13] Accordingly, based upon the undisputed evidence in this proceeding, I am satisfied that the following elements of the actus reus of the subject offence have been established beyond a reasonable doubt:

1. that on the date and time in question, Sean Fabian was driving a motor vehicle, to wit: a white-coloured, 2009 model, Ford van in the eastbound curb lane of Speers Road, just west of Dorval Drive, in the Town of Oakville;

2. that at that time, Sean Fabian was holding a dark-coloured object in his right hand; and

3. that Speers Road at the subject location, is an east/west roadway, which falls within the definition of a "highway" under the H.T.A.

[14] The remaining issue is whether or not the prosecution has proven, beyond a reasonable doubt, that the dark-coloured object, which Constable Bertasson observed in Mr. Fabian's right hand, was a cell phone.

The Evidence

The Testimony of Police Constable Conrad Bertasson

[15] Police Constable Bertasson advised that he was employed by the Halton Regional Police Service and had been so employed since September 2007. He testified with the aid of his investigative notes to refresh his existing memory of the relevant events.

[16] The constable testified that in the morning of March 19th, 2014, he was working "uniform patrol" in the Town of Oakville. He indicated that at that time, the sole purpose of his patrol duties "was distracted drivers". Based on that statement, I am able to infer that on that day he was assigned to the duty of looking for distracted drivers. He described the weather conditions at that time as "light rain".

[17] He advised that at that time he was sitting in the driver's seat of an unmarked police mini-van, which was parked in a driveway on the south side of Speers Road just west of Dorval Drive in the Town of Oakville, for purposes of monitoring east and westbound traffic on Speers Road. He stated that he was parked such that he was perpendicular to Speers Road, facing that highway in a northerly direction.

[18] Constable Bertasson testified that at approximately 8:55 a.m. he observed a motor vehicle, being a white-coloured Ford van travelling eastbound toward his location, in the curb lane of Speers Road. He estimated that this vehicle was travelling at a rate of speed of approximately 40 kilometres per hour.

[19] He stated that as the van passed his location, he observed its driver holding a "dark cell phone in his right hand at the steering wheel level". He advised that he made this observation through the front windshield of his police vehicle and through the passenger side – front door window of the van.

[20] The officer estimated that he was located a distance of approximately 12 feet from the van when it passed in front of him. He noted that that at the time that he observed the driver holding the cell phone, there were no obstructions to his view.

[21] Constable Bertasson testified that upon observing the cell phone in the driver's right hand, he "initiated a traffic stop" of the van. He advised that upon stopping the van, he spoke with its driver who produced an Ontario driver's licence in the name of Sean Fabian. He stated that the photograph on the driver's licence bore the resemblance of the driver, Sean Fabian.

[22] The officer stated that upon speaking with the defendant he observed "a cell phone on the console of the vehicle inside the vehicle"; which was a black and yellow-coloured "Mike" phone. He advised that this cell phone was the same cell phone which he observed in the defendant's hand, as the van travelled past his location.

[23] During cross-examination, Constable Bertasson testified that he was unable to recall the type of van that Mr. Fabian was driving at the subject time, noting that his notes simply indicated "2009 Ford van, white". Furthermore, when asked if he could remember if the windows were tinted at all, the officer stated "I did not make any notations but generally if there's tint I write it down". He stated that there were no passengers in the subject van and he described the traffic conditions at the material time as "medium".

[24] The officer testified that he was able to identify the brand of the cell phone which he observed on the console of the van because had used "Mike" cell phones in his previous job. When asked by the defendant's representative if he could describe the way the "Mike" phone "looked to everyone", he responded as follows:

I didn't make any notations of the exact style but generally the two styles are flip phone or basically it's a rectangle shape and it's rounded on the top. And usually the colour is usually on the back, like the yellow.

[25] The representative then suggested to the officer that he didn't really know that the cell phone which he observed inside of the van, was the same "dark cell phone" which he had previously observed in Mr. Fabian's right hand. In responding to this proposition, Constable Bertasson testified as follows:

Well, no I am confident and the yellow would have been on the backside. So, the reason why I may have not have seen the yellow right away and why I described it as a dark phone.

[26] Constable Bertasson went on to advise that he made his observation of Mr. Fabian driving the van while holding the subject cell phone, when the van travelled passed his location. He stated that he was sitting in the driver's seat of his police vehicle when he made this observation.

[27] The officer was then asked whether there was any other indication which led him to conclude that the "black object" in Mr. Fabian's right hand was a cell phone, to which he stated: "the shape of the cell phone". Furthermore, when the representative inquired as to how the driver was holding the phone, next to the steering wheel, Constable Bertasson advised that he observed the driver holding the cell phone in his right hand such that the back of the phone was in the palm of his hand.

[28] When asked by the representative if he could describe exactly what he saw from a distance of 12 feet as the defendant drove past him, the officer reiterated his testimony-in-chief, stating that he observed a cell phone in the defendant's right hand as the van travelled past his location at a rate of speed of 40 kilometres per hour.

[29] Mr. Fabian's representative then completed her cross-examination of the constable by engaging in the following question and answer exchange:

Q: But how do you know it was a cell phone?

A: Well, I can tell you this; that every month probably for, I'm going to guess here, probably about five months prior, every month I would go out and we would specifically do cell phones. So, I'm fairly confident with how I depict what a cell phone is because I've been doing it a long time.

Q: But you're not 100 percent sure that he was holding a cell phone?

A: I'm a 100 percent sure.

Q: So you're saying that from 12 feet away with light rain, with a black object in somebody's hand that there is absolutely no doubt that it could be anything else other than a cell phone?

A: No doubt. If I have any doubt I do not do the traffic stop.

Q: Did you see his mouth moving at all?

A: No.

Q: Did you see his hands moving at all?

A: No.

Q: Did you see any light coming from the screen?

A: I did not make any notations on light.

The Position of the Prosecution

[30] The prosecutor argues that he has proven all of the essential elements of the subject offence, beyond a reasonable doubt. He submits that the Constable Bertasson's evidence is both credible and reliable, noting that the officer made his observations of the defendant and the defendant's vehicle from an unobstructed stationary vantage point at a distance of 12 feet, as part of his special enforcement duties relative to distracted driving behaviour.

[31] The prosecutor submits that the constable's undisputed evidence establishes beyond a reasonable doubt that the defendant was driving a motor vehicle while he was holding a cell phone in his right hand. He points out that throughout his testimony, Constable Bertasson steadfastly maintained that the dark-coloured object that he observed in the defendant's right hand was a cell phone. He argues that the officer did not retreat from this position, noting that during cross-examination the officer advised that he was 100 percent sure that the object was a cell phone.

[32] The prosecutor's position is that the totality of Constable Bertasson's testimony establishes beyond a reasonable doubt, the fact that the defendant was holding a cell phone in his right hand while he was driving a van on Speers Road; noting that there is no evidence before the court to refute this fact. Furthermore, the prosecutor contends that there is no aspect of the officer's testimony which raises a reasonable doubt as to the defendant's guilt of the subject offence.

The Position of the Defendant

[33] The defendant's representative submits that the prosecution has failed to prove the allegation that Mr. Fabian was holding a cell phone, beyond a reasonable doubt. She argues that Constable Bertasson's opinion that the object which he observed in Mr. Fabian's hand was a cell phone is little more than a bald assertion, which should not be afforded significant weight.

[34] The representative notes that while the police officer may have honestly believed that he saw a cell phone in the defendant's hand, there is little evidence before the court to support the reliability of that belief.

[35] The representative points out that the officer made his observations on a rainy day, through both the front window of his police vehicle and the passenger side window of the defendant's van, from a distance of 12 feet, when the van was travelling by the officer's location at a rate of speed of 40 kilometres per hour. Furthermore, the representative argues that the officer was unable to provide an adequate description of the object which he believed to be a cell phone, so as to enhance the credibility of that belief. In this regard, the defendant's representative notes that the officer only had a vague recollection of the shape and colour of the purported cell phone and that he was unable to recall whether there was any light emanating from its screen.

[36] During the course of her final submissions, the defendant's representative urged the court to assign little weight to Constable Bertasson's statement that he was 100 per cent sure that the object which he observed the defendant to be holding, was a cell phone. She stated that no matter how sure someone may be of something which he/she had observed, there was always "room for human error". She submitted that the lack of precision in the officer's evidence relative to his description of the purported cell phone raised a reasonable doubt as to whether the object in Mr. Fabian's right hand at the relevant time was a cell phone.

[37] The representative concluded her submissions by contending that the prosecution had failed to prove Mr. Fabian's guilt of the charge, beyond a reasonable doubt. She acknowledged that while the prosecution evidence seemed to establish the defendant's guilt on a balance of probabilities, it was not sufficient to prove all of the elements of the subject offence to the standard of proof beyond a reasonable doubt.

Analysis

Issue – Has the prosecution proven beyond a reasonable doubt, that the dark-coloured object which Constable Bertasson observed in Mr. Fabian's right hand, was a cell phone?

[38] During the course of his testimony relative to the aforementioned issue, Constable Bertasson provided direct evidence as to the nature of the object which he observed in Mr. Fabian's right hand at the material time. The constable unequivocally stated that he observed the defendant driving a motor vehicle on Speers Road, while he was holding a dark cell phone in his right hand at the steering wheel level. In specifically describing that dark-coloured object as a cell phone, Constable Bertasson was offering a lay opinion as to what the object was.

[39] This type of non-expert opinion evidence is admissible for purposes of identifying persons or things or for purposes of offering conclusions relative to observations, which a person of ordinary knowledge and experience is able to make. This proposition of law was established by the Supreme Court of Canada in its decision in Regina v. Graat, [1982] 2 S.C.R. 819 (S.C.C.). In his decision in this case, Dickson J. (as he then was) made, in part, the following comments relative to the issue of the admissibility of lay opinion evidence:

We start with the reality that the law of evidence is burdened with a large number of cumbersome rules, with exclusions to the exclusions, and exceptions to the exceptions. The subjects upon which the non-expert witness is allowed to give opinion evidence is a lengthy one. The list mentioned in Sherrard v. Jacob, supra, [[1965] N.I.L.R. 151] is by no means exhaustive: (i) the identification of handwriting, persons or things; (ii) apparent age; (iii) the bodily plight or condition of a person, including death and illness; (iv) the emotional state of a person – e.g. whether distressed, angry, aggressive, affectionate or depressed; (v) the condition of things – e.g. worn, shabby, used or new; (vi) certain questions of value; and (vii) estimates of speed and distance.

Except for the sake of convenience there is little, if any, virtue, in any distinction resting on the tenuous, and frequently false, antithesis between fact and opinion. The line between 'fact' and 'opinion' is not clear.

[40] At a later point in this decision, Mr. Justice Dickson noted that while non-expert opinion evidence is admissible relative to matters such as those enumerated above, the issue of the weight to be given to such evidence is a matter for the trier of fact to determine. The weight of the lay opinion will generally involve an assessment of the credibility and reliability of the opinion in the context of the totality of the evidence before the trier of fact. In this regard, the said jurist stated, in part, as follows:

Whether or not the evidence given by police or other non-expert witnesses is accepted is another matter. The weight of the evidence is entirely a matter for the judge or judge and jury. The value of the opinion will depend on the view the court takes in all the circumstances.

[41] As stated above, in this proceeding, the police officer has rendered a clear opinion identifying the thing which he saw in the defendant's right hand as a cell phone. The officer's lay opinion in that regard is admissible evidence. I must now examine the totality of the officer's testimony, being the only evidence before me in this proceeding, in order to determine the degree of weight I am able to apply to his opinion. Essentially, I must ask myself whether I believe the officer's testimony.

[42] In their textbook titled The Law of Evidence, sixth edition, (2011, Irwin Law Inc.), Mr. Justice David M. Paciocco and Professor Lee Stuesser, made, in part, the following comments pertaining to the issue of the informativeness of evidence:

The ability of particular evidence to inform depends upon (1) how live the issue it addresses is, and (2) how cogent the evidence is in proving the thing it is offered to prove. Assuming the fact it describes is a live issue, 'direct evidence' is completely informative since it directly asserts the very thing that is of interest. … The only thing affecting the weight of material evidence is therefore its believability.

[43] In discussing the issue of the believability of evidence, the said authors defined the concepts of 'credibility' and 'reliability', as follows:

When deciding whether evidence is believable, legal theory draws a helpful distinction between 'credibility' and 'reliability'. 'Credibility' is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead, or has discreditable character will be relevant to credibility. …

'Reliability' is the term used to describe the accuracy of evidence. It can relate to the accuracy of a scientific or forensic process, but when applied to witnesses, reliability captures the kinds of things that can cause even an honest witness to provide inaccurate information. The reliability of witness testimony can be affected, for example, by (1) inaccurate observations, (2) memory problems, or (3) a failure by the witness to communicate observations accurately. …

[44] Constable Bertasson testified in a clear and forthright manner with the aid of his investigative notes, which were made contemporaneously with the time of the subject event, to refresh his existing memory. His testimony was internally consistent and it was not shaken by cross-examination. In short, there is no evidence before me which casts doubt on the genuineness of the officer's testimony and accordingly, I have found him to be a credible witness.

[45] I acknowledge, however, that the weight to be afforded to Constable Bertasson's lay opinion that the subject dark-coloured object was a cell phone, is largely related to the reliability of his evidence. As stated above, the notion of reliability of the evidence is related to its accuracy.

[46] I am of the view that Constable Bertasson's opinion that the subject dark-coloured object was a cell phone is reliable and therefore accurate. In reaching that decision I have taken into consideration the following factors:

• That on the date in question, Constable Bertasson had gained significant experience in the enforcement of offences involving the use of cell phones while driving.

• That on the date in question, Constable Bertasson was parked on the south side of Speers Road, facing that highway in a perpendicular fashion, for the sole purpose of monitoring traffic on Speers Road for driving infractions involving the use of cell phones.

• That at the material time, Constable Bertasson had an unobstructed view of the defendant inside of his van, directly in front of the officer at a distance of approximately 12 feet;

• That upon stopping the defendant's van immediately after his initial observation of the defendant, Constable Bertasson observed the same cell phone that he had observed the defendant holding, being a "Mike" cell phone, located on the console of the vehicle; and

• That Constable Bertasson was familiar with the "Mike" brand of cell phones as he had used these phones in his previous employment.

[47] In assessing the accuracy of Constable Bertasson's opinion as to the nature of the object observed in the defendant's right hand, I have considered the officer's opportunities to observe and assess the relevant circumstances, his powers of observation, his judgment and the clarity of his memory. In my view the application of the stated factors have served to enhance the accuracy of the police officer's non-expert opinion relative to the subject cell phone.

[48] Firstly, in making his observations at the relevant time, Constable Bertasson positioned himself in an optimal position relative to the eastbound, curb lane of Speers Road. From that location, with his police vehicle parked in a fashion that it was perpendicular to the said highway, he had an unobstructed view of the defendant within the van he was driving from a distance of approximately 12 feet, as the vehicle passed directly in front of him. In my view, the position and proximity of Constable Bertasson's vehicle to the defendant's van at the material time, served to enhance the accuracy of the officer's observations at the material time, and in particular, his opinion that the defendant was holding a cell phone.

[49] Secondly, it is apparent that Constable Bertasson was a police officer who had gained specialized knowledge of various types of cell phones as a result of his extensive experience in the enforcement of traffic offences involving cell phones. Accordingly, it is logical to conclude that at the time of the offence he was familiar with the appearance of a number of different types of cell phones. This experience was significant in enhancing his ability to conclude that the dark-coloured object in the defendant's hand was a cell phone.

[50] Thirdly, at the time of the offence, Constable Bertasson was specifically assigned to the task of looking for drivers who were using or holding a cell phone. It is therefore logical to infer that at the material time, the officer's attention was specifically focussed on the hands of drivers of vehicles approaching his location. In other words, the officer's increased state of vigilance relative to items in the hands of drivers of vehicles at that time, bolstered the reliability of his absolute opinion that Mr. Fabian was holding a dark-coloured cell phone in his right hand, at the material time.

[51] Finally, the observations made by Constable Bertasson at the time that he stopped Mr. Fabian's motor vehicle are very important as those observations serve to re-enforce the officer's opinion as to the identity of the thing in Mr. Fabian's right hand at the relevant time. In this regard, Constable Bertasson advised that when he was speaking with Mr. Fabian after he stopped the van, he noticed a cell phone located on the console of the van. He immediately recognized this cell phone as the same phone that he had observed in the defendant's right hand, a short time earlier. It is clear that the police officer's direct evidence that he observed a cell phone on the console of the van, which he recognized as the same cell phone which he had previously observed in Mr. Fabian's hand, crystallized his earlier lay opinion that the subject object was, in fact, a cell phone.

[52] Based upon the foregoing analysis, I am satisfied that the testimony of Constable Bertasson related to his opinion that the subject dark-coloured object was a cell phone, may be characterized as both credible in the sense of being genuine, and reliable in the sense of being accurate. In light of this finding, I conclude that significant weight should attach to that opinion.

[53] I must now determine whether, based on the totality of the evidence before me, the prosecution has proven beyond a reasonable doubt that at the material time, Mr. Fabian was holding a cell phone in his right hand, while he was driving the subject Ford van. In order to resolve this issue, I must first remind myself of the definition of the expression "beyond a reasonable doubt" as crafted by Mr. Justice Cory in his decision in Regina v. Lifchus, [1997] 3 S.C.R. 320 (S.C.C.). The said expression, as contained in a model jury charge, was defined in Lifchus, supra, in part, as follows:

A reasonable doubt is not an imaginary or frivolous doubt. It must not be based upon sympathy or prejudice. Rather it is based upon reason and common sense. It is logically derived from the evidence or absence of evidence.

Even if you believe the accused is probably guilty or likely guilty, that is not sufficient. In those circumstances you must give the benefit of the doubt to the accused and acquit because the Crown has failed to satisfy you of the guilt of the accused beyond a reasonable doubt.

On the other hand you must remember that it is virtually impossible to prove anything to an absolute certainty and the Crown is not required to do so. Such a standard of proof is impossibly high.

[54] The only evidence in this proceeding establishes that at the material time, Mr. Fabian was driving a Ford van in an easterly direction on Speers Road, while he was holding a dark object in his right hand. Constable Bertasson identified this object as a "dark cell phone". In identifying the object, Constable Bertasson rendered a non-expert opinion, which was admissible in evidence. Furthermore, I found that Constable Bertasson's opinion in this regard was both credible and reliable and it was afforded significant weight.

[55] In light of the fact that there is no evidence before me to contradict Constable Bertasson's opinion relative to the identification of the subject cell phone, I am of the view that the prosecution has proven that at the material time, Mr. Fabian was holding a cell phone in his right hand, beyond a reasonable doubt.

Conclusion

[56] Based upon the direct evidence and the non-expert opinion evidence of Constable Conrad Bertasson in this proceeding and noting the absence of evidence to the contrary, I find that the following elements of the actus reus of the subject offence against Sean Fabian, have been proven beyond a reasonable doubt:

1. that on the 19th day of March, 2014, at 8:55 a.m., Sean Fabian was driving a motor vehicle on a highway, in the Town of Oakville; and

2. that at that time, Sean Fabian was holding a cell phone, being a hand held wireless communication device, in his right hand.

Accordingly, I am satisfied that the prosecution has met its burden of proof in this proceeding. There is no evidence before me which establishes on a balance of probabilities, that in committing the actus reus of the subject offence, Sean Fabian took all reasonable care. Accordingly, he is found guilty of the offence of drive-hand-held communication device, contrary to the H.T.A. section 78.1(1), as charged.

Released: January 30, 2015

Signed: "Justice of the Peace Kenneth W. Dechert"