Court File and Parties

Court File No.: Halton - Certificate of Offence no. 1260-3584673B

Date: 2015-10-07

Ontario Court of Justice

Between:

Her Majesty The Queen

— AND —

Taylor Nicole Fitzpatrick

Before: Justice of the Peace Kenneth W. Dechert

Heard on: May 26, 2015

Reasons for Judgment released on: October 7, 2015

Provincial Offences Court – Milton, Ontario

Counsel

G. Larson ........................................................................................................... for the prosecution

S. Fitzpatrick, family member representative for the defendant Taylor Nicole Fitzpatrick

Statutes, Regulations and Rules Cited

Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, s. 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, Seventh Edition, (Irwin Law Inc., 2015).

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

INTRODUCTION

[1] The defendant, Taylor Nicole Fitzpatrick, stands charged that she on the 8th day of June, 2014, at Abbeywood Drive and Third Line, in the Town of Oakville, committed the offence of drive – hand-held communication device, contrary to subsection 78.1(1) of the Highway Traffic Act.

[2] The trial of this proceeding began before me on the 26th day of May, 2015, when the defendant entered a plea of not guilty to the said charge. At that time, I received the testimony of Police Constable Derek Hetherington, being the only evidence tendered during this proceeding, and the final submissions of the parties. The proceeding was then adjourned until October 7th, 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, beyond a reasonable doubt. In that regard, I must remind myself that the prosecution bears this legal burden of proof throughout the trial and that the defendant is presumed innocent until proven guilty.

[4] The prosecution, the City of Burlington, was represented by Mr. Gregory Larson. The defendant was represented by her father, Mr. Sean Fitzpatrick.

THE LAW

[5] 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.

[6] 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". Following the reasoning articulated by the Supreme Court of Canada in Regina v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299 (S.C.C.), Mr. Justice Doherty noted that public welfare offences are "prima facie strict liability offences".

[7] In his decision in Regina v. Sault Ste. Marie (City), supra, Dickson J. determined 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 used 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.

[8] 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 subject prohibited act, 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".

[9] Various trial-level courts of the Ontario Court of Justice have interpreted the subject offence as being one of either strict liability or absolute liability. The issue of the proper categorization of the offence has not yet been definitively resolved by a binding appellate authority.

[10] In this case, neither the prosecution nor the defence made any legal arguments pertaining to the issue of the categorization of the offence. In particular, I 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 classification. The presumption that this public welfare offence is one of strict liability has not, therefore, been rebutted.

[11] Accordingly in this proceeding, if the prosecution is able to prove, beyond a reasonable doubt that the defendant committed the prohibited act, she will be found guilty of the offence unless she is able to show on a balance of probabilities, that in committing the offence she took all reasonable care. If she is able to establish this defence, her presumed negligence is rebutted and she will be excused of liability for the offence.

[12] 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". Accordingly, based upon this finding, I am able 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 EVIDENCE

The Testimony of Police Constable Derek Hetherington

[13] Officer Hetherington testified that he was employed by the Halton Regional Police Service as a police constable and had been so employed since 1987.

[14] At the outset of his testimony, the constable advised that he made notes relative to his involvement with the subject offence, which he wished to refer to for the purpose of refreshing his memory "in regard to particulars". He stated that he made the notes in ink, at the scene of the alleged offence and shortly thereafter, and that he had not made any "changes and deletions" to them. He indicated that he had "somewhat" of an independent recollection of the events of the day of the offence. The prosecutor then sought leave of the Court to permit the officer to refer to his notes for purposes of refreshing his memory under the "doctrine of present memory revived".

[15] As the defendant's representative did not object to the prosecutor's request in this regard, I granted Constable Hetherington leave to make reference to his investigative notes in this proceeding for purposes of refreshing his existing memory of the relevant events, under the doctrine of present memory revived.

[16] During examination-in-chief, Constable Hetherington testified that on June 8th, 2014, at approximately 6:34 p.m., he was operating an unmarked Ford "SUV" police cruiser in a northerly direction on Third Line approaching its intersection with Abbeywood Drive in the Town of Oakville, in order to attempt to turn left onto Abbeywood Drive. At this time the constable observed a silver-coloured Nissan Maxima motor vehicle travelling in a westerly direction on Abbeywood Drive, approaching its intersection with Third Line. He stated that this vehicle, driven by a female person, entered the subject intersection and travelled in front of him, prior to turning left onto southbound Third Line. He advised that at this time, he noticed that the female driver was holding a cell phone in her right hand while she was gripping the steering wheel of the vehicle with her left hand.

[17] The officer described the weather conditions at this time as being "overcast…with light rain".

[18] The officer stated that at the time that he made these observations, he had a "clear and unobstructed view" of the driver's right hand holding the cell phone. He indicated that he made these observations as the vehicle passed in front of him in the course of turning onto Third Line, from a distance of between ten and fifteen metres. In particular, he advised that at this time, he noticed that the female driver was manipulating the face plate of the cell phone with her right finger.

[19] When asked by the prosecutor as to how he recognized the device being held by the driver in her right hand to be a cellular telephone, Constable Hetherington made reference to the size of the object and his observations of the driver manipulating the face plate of the phone. He went on to state that as the driver was turning the vehicle, she "glanced down once" to take a look at the phone. In response to the prosecutor's query as to whether the object being held by the driver in her right hand, "could have been any other device other than a cell phone", the officer replied: "not in my mind".

[20] Constable Hetherington testified that upon observing the said driver holding the cell phone, he took immediate steps to make a "u-turn" from the northbound lane, where he was situated, to a southbound lane of Third Line for purposes of pursuing the motor vehicle. He advised that he caught up to this vehicle and after activating his emergency lights and siren, stopped the vehicle on Third Line.

[21] The officer advised that upon stopping the motor vehicle, its driver verbally identified herself to him as Taylor Nicole Fitzpatrick of an address in the Town of Oakville. He stated that he then advised Ms. Fitzpatrick of the reason for the traffic stop and issued to her provincial offence notice number 3584673B for the offence of drive – hand-held communication device.

[22] At the outset of cross-examination, Constable Hetherington reiterated his testimony-in-chief that at the time that he made his observations of Ms. Fitzpatrick driving the said Nissan motor vehicle at the intersection of Third Line and Abbeywood Drive, he was travelling in a northerly direction on Third Line. In fact he indicated that when he saw Ms. Fitzpatrick, he was stopped in the northbound left-turn lane for a red traffic light, as the traffic control signal for eastbound and westbound traffic on Abbeywood Drive was green. The officer stated that at that time, he observed Ms. Fitzpatrick turn left off of Abbeywood Drive onto southbound Third Line.

[23] The defendant's representative then asked the officer why his notes indicated that at the relevant time, he was travelling southbound on Third Line making a left turn, rather than northbound as he had testified. The officer initially appeared to be surprised by this revelation, but nevertheless continued to assert that at the relevant time he was stopped in the northbound left-turn lane for a red traffic control signal.

[24] In commenting on the discrepancy between his testimony and the entry in his investigative notes relative to the direction of his travel on Third Line at the relevant time, Constable Hetherington testified that even though he was relying on his notes during the course of his testimony with respect to "particulars", his testimony relative to the direction of his travel was based upon his recollection of the subject events, independent of that recorded in his notes.

[25] The defendant's representative then asked the officer why he would record his direction of travel in his notes as being southbound, rather than northbound, if he made the notes "immediately after the incident". In responding to this question, the constable testified as follows:

In my day of operation I'm writing up many notes. Once in a while I do make a mistake on the note in regards to the direction.

[26] Constable Hetherington testified that he observed Ms. Fitzpatrick driving the subject Nissan sedan when she was stopped for a red traffic light on Abbeywood Drive, at the subject intersection. The constable stated that at that time, he was also stopped in the northbound left-turn lane of Third Line for a red traffic light. He stated, however, that he did not see Ms. Fitzpatrick holding a cell phone until she had entered the subject intersection, travelling in a westerly direction. He advised that when he was stopped for the red traffic light facing northbound, waiting to make a left turn onto Abbeywood Drive, he was "just observing traffic at the intersection", but, in particular, was "concentrating" on the actions of Ms. Fitzpatrick.

[27] Constable Hetherington testified that when Ms. Fitzpatrick entered the subject intersection, she was facing in a westerly direction and he was facing in a northerly direction. He advised that from this angle he was able to see that Ms. Fitzpatrick was holding the cell phone in her right hand and manipulating it with her right thumb. In advising how he was able to see the actions of the defendant manipulating the phone with her thumb, the constable noted that since he was driving a SUV at the time, he had an elevated vantage point enabling him to look down into the subject Nissan sedan.

[28] During cross-examination, Constable Hetherington was not able to describe the make or model of the cell phone that he observed being held by the defendant, noting that he just saw the face plate of the phone from a distance of between 10 and 15 metres. He advised that he did not see a cell phone in plain view inside of the vehicle being driven by the defendant, at the time that he stopped the vehicle on Third Line. When asked if he "ever" asked Ms. Fitzpatrick to "see the phone" when he conducted the traffic stop on Third Line, the constable indicated that he did not make such a request as it "was not his policy to do that".

[29] During the course of his cross-examination, the defendant's representative held up a cassette tape while standing at the counsel table approximately 15 feet from the location of the officer in the witness stand, and asked him whether it was possible that the defendant was holding the cassette tape rather than "her cell phone", at the material time. Constable Hetherington responded to this query by stating: "absolutely not".

[30] The defendant's representative then asked the constable as to whether it was possible that he was mistaken as to what he had seen in the defendant's right hand at the material time, in light of his admission that he had made an error in his notes pertaining to his direction of travel. In response, the officer asserted that it was not possible that he had made a mistake in his identification of the object in the defendant's right hand. In this regard, he unequivocally reiterated his earlier testimony that the object was a cell phone, rather than a cassette tape, as theorized by the defendant's representative.

[31] In completing his testimony during cross-examination, Constable Hetherington stated that after he observed Ms. Fitzpatrick holding the cell phone, he immediately conducted a u-turn in the subject intersection and began to pursue Ms. Fitzpatrick's vehicle as it travelled southbound on Third Line. He advised that he initially activated his emergency roof lights for a period of approximately twenty seconds, following which time he activated the siren of his police vehicle in order to cause Ms. Fitzpatrick to pull over to the shoulder of the road.

[32] Constable Hetherington acknowledged that during this twenty-second period of time Ms. Fitzpatrick was not likely aware that she was being pursued by him. He stated that during this short period of time, when he was travelling directly behind Ms. Fitzpatrick's vehicle, he did not see Ms. Fitzpatrick lift her right hand up to the vicinity of her ear.

THE ISSUES

[33] In his final submissions in this proceeding, the defendant's representative argued that the prosecution had failed to discharge its burden of proving, beyond a reasonable doubt, that at the material time the defendant was holding a "hand-held wireless communication device". It does not appear that the issue of the proof of any of the other essential elements of the subject offence is in dispute.

[34] Accordingly, based upon the undisputed evidence in this proceeding, I am satisfied that the following elements of the prohibited act relative to the subject offence, have been proven beyond a reasonable doubt:

1. that on the 8th day of June, 2014, at approximately 6:34 p.m., Taylor Nicole Fitzpatrick was driving a motor vehicle to wit: a silver-coloured Nissan Maxima, in a westerly direction on a highway to wit: Abbeywood Drive at its intersection with Third Line, in the Town of Oakville; and

2. that at that time, Taylor Nicole Fitzpatrick was holding an object in her right hand.

[35] Accordingly, the only remaining issue to be decided is whether or not the prosecution has proven, beyond a reasonable doubt, that the object being held by the defendant in her right hand at the material time was a cell phone; being a hand-held wireless communication device.

ANALYSIS

Issue: Has the prosecution established, beyond a reasonable doubt, that the object which Constable Hetherington observed in the right hand of Taylor Nicole Fitzpatrick at the material time, was a cell phone?

[36] During the course of his testimony relative to the aforementioned issue, Constable Hetherington provided direct evidence as to the identity of the thing which he observed in defendant's right hand at the material time. The constable unequivocally stated that he observed the defendant driving a motor vehicle on Abbeywood Drive, within its intersection with Third Line, while she was holding a cell phone in her right hand. He advised that he was able to determine that "the device" which she was holding was a cell phone, based upon its size and based upon his observations of the defendant manipulating the face plate of the device and glancing down at it. In specifically identifying the said object as a cell phone, Constable Hetherington was offering a lay opinion as to what the object was.

[37] This type of non-expert opinion evidence is admissible for purposes of identifying things, which a person of ordinary knowledge and experience is able to make, on the basis that the opinion constitutes a "compendious statement of facts that are too subtle and too complicated to be narrated separately and distinctly". 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 this decision, 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 or 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.

[38] 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.

[39] 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 to be assigned to his opinion and whether I should accept the opinion. Essentially, I must ask myself whether I believe the officer's testimony.

[40] In their textbook titled The Law of Evidence, seventh edition, (Irwin Law Inc., 2015), at p. 36, Mr. Justice David M. Paciocco and Professor Lee Stuesser, made, in part, the following comments pertaining to 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 the material evidence is therefore its believability.

[41] In discussing the issue of the believability of evidence at pp. 35 and 36 of their textbook, 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 a 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.

[42] Constable Hetherington testified in a clear, forthright and responsive manner, with the aid of his investigative notes to refresh his existing memory of the relevant events. His testimony was internally consistent and he did not attempt to exaggerate the scope of his observations pertaining to the material events. Furthermore, there is no evidence before me which either discredits the officer's character or in any other way casts doubt on the genuineness of his testimony in this proceeding. Accordingly, I have found him to be a credible witness.

[43] I acknowledge however, that the weight to be afforded to Constable Hetherington's lay opinion that the object or device located in the defendant's right hand at the material time was a cell phone is largely related to the reliability of his evidence. As stated above, the notion of the reliability of the evidence is related to its accuracy.

[44] I am of the view that Constable Hetherington's opinion that the subject object was a cell phone is reliable and therefore accurate. In reaching this conclusion, I have assessed the totality of the officer's testimony including his location relative to the position of the motor vehicle being driven by Ms. Fitzpatrick at the material time, the clarity of his view of Ms. Fitzpatrick's hands within the said motor vehicle and the precision of his memory of the relevant event, independent of his investigative notes.

[45] In this regard, it is noted that the officer made his observations of Ms. Fitzpatrick's hands as the driver's side of the subject vehicle passed directly in front of his unmarked police cruiser, which was stopped facing in a northerly direction for a red traffic control signal at the southern boundary of the intersection of Abbeywood Drive and Third Line. The officer advised that at this time he was watching traffic within the said intersection, but was concentrating on Ms. Fitzpatrick as her vehicle passed in front of him at a distance of between 10 and 15 metres.

[46] It is important to note that from this optimal vantage point, the officer had a clear and unobstructed view of the defendant and her hands within the subject motor vehicle. He was able to recall precisely what he observed at that time, noting that while Ms. Fitzpatrick was gripping the steering wheel with her left hand, she was holding a cell phone in her right hand. He was able to immediately identify the object in Ms. Fitzpatrick's right hand as a cell phone, based upon his ordinary experiences. His recognition of the object in this regard was enhanced and corroborated by his observation that Ms. Fitzpatrick was "manipulating" the face plate of the cell phone with her right thumb, while she was glancing at it.

[47] Throughout his testimony, Constable Hetherington steadfastly maintained his opinion that the object which he observed in Ms. Fitzpatrick's right hand was a cell phone. During the course of vigorous cross-examination, the officer denied the suggestion that his location, some 10 to 15 metres away from the defendant, diminished the precision of his vision of the alleged cell phone. In this regard, he reiterated his confidence in the accuracy of his opinion that the defendant was holding a cell phone in her right hand at the material time, because his view was both unobstructed and made from his position in his sports utility vehicle; a perpendicular elevated vantage point relative to the location of Ms. Fitzpatrick in the driver's seat of her sedan.

[48] As indicated above, Constable Hetherington's opinion as to the identity of the object in Ms. Fitzpatrick's right hand was unequivocal. He rejected the possibility that what he saw in the defendant's right hand was something other than a cell phone. Furthermore, during cross-examination he categorically denied the proposition that what he saw in Ms. Fitzpatrick's right hand was actually a cassette tape rather than a cell phone.

[49] In my view, the strength of the officer's opinion relative to his identification of the thing in the defendant's right hand at the material time, was not weakened through cross-examination.

[50] In assessing the reliability of Constable Hetherington's testimony, I cannot lose sight of the fact that, at the time that he made his notes relative to the circumstances of the subject charge, he erroneously recorded that at the time that he observed Ms. Fitzpatrick driving her vehicle on Abbeywood Drive, he was operating his police vehicle in a southerly direction on Third Line. During the course of his testimony, Officer Hetherington maintained that based on his independent recollection of the subject events, he was at this time, operating his police vehicle in a northerly direction on Third Line.

[51] When the defendant's representative asked Constable Hetherington to explain the discrepancy between his testimony and his investigative notes relative to his direction of travel at the relevant time, the officer acknowledged that he had made an error in the preparation of his notes respecting the direction of his travel. The officer noted, however, that his testimony was based upon his independent recollection of the relevant events, as triggered or refreshed by his investigative notes.

[52] The defendant's representative suggested that the error in his notes should cause the court to be left in a state of reasonable doubt as to the accuracy of his opinion pertaining to the subject cell phone. The representative argued that in light of the officer's explanation that on any given day he would prepare a large quantity of investigative notes, and that in those circumstances he would occasionally make a mistake in the notes relative to his direction of travel, it was also plausible that the officer could have mistakenly identified the object in the defendant's right hand at the material time, as a cell phone.

[53] I do not accept the defendant's argument in this regard. The officer has acknowledged that he made a mistake in his investigative notes regarding his direction of travel. There is no evidence that the officer made any other error in his notes pertaining to the circumstances of the subject offence. Therefore, the argument of the defendant's representative that in light of the error the officer could have also been mistaken in his opinion that the defendant was holding a cell phone in her right hand, is purely speculative. It is not reasonable to suggest that the subject error has the effect of tainting the accuracy of the totality of Constable Hetherington's testimony in this proceeding.

[54] Based upon the foregoing analysis, I am satisfied that the testimony of Constable Hetherington related to his opinion that the thing being held by Ms. Fitzpatrick in her right hand 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 be afforded to that opinion.

[55] I must now determine whether, based upon the totality of the evidence before me, the prosecution has proven beyond a reasonable doubt that at the material time, Ms. Fitzpatrick was holding a cell phone in her right hand while she was driving the said Nissan Maxima vehicle on a highway. In order to resolve this issue, I must first remind myself of the definition of the expression "beyond a reasonable doubt" as articulated 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 the 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.

[56] The only evidence in this proceeding establishes that at the material time, Ms. Fitzpatrick was driving a Nissan Maxima motor vehicle in a westerly direction on Abbeywood Drive at its intersection with Third Line, in the Town of Oakville, while she was holding an object in her right hand. Constable Hetherington identified this object as a cell phone. In so identifying the object, the officer rendered a non-expert opinion which was admissible in evidence. I have found the officer's opinion in this regard to be both credible and reliable and I have afforded it significant weight.

[57] There is no evidence in this proceeding which contradicts Constable Hetherington's opinion relative to the identification of the cell phone. I am therefore of the view that the prosecution has proven that at the material time Ms. Fitzpatrick was holding a cell phone in her right hand, beyond a reasonable doubt.

CONCLUSION

[58] Based upon the direct evidence and the non-expert opinion evidence of Constable Derek Hetherington and noting the absence of evidence to the contrary, I find that the following elements of the prohibited act of the subject offence, have been proven beyond a reasonable doubt:

1. that on the 8th day of June, 2014 at approximately 6:34 p.m., Taylor Nicole Fitzpatrick was driving a motor vehicle on a highway, in the Town of Oakville; and

2. that at that time, Taylor Nicole Fitzpatrick was holding a cell phone, being a hand-held wireless communication device, in her right hand.

[59] 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 prohibited act of the subject offence, Taylor Nicole Fitzpatrick took all reasonable care. She is, therefore, found guilty of the offence of drive – hand-held communication device, contrary to the H.T.A., subsection 78.1(1), as charged.

Released: October 7, 2015

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