Court Information

Date: September 13, 2016

Before: His Worship Prior N. Bonas, Justice of the Peace

Heard on: July 13, 2016

Reasons for Judgment released on: September 13, 2016

Provincial Offences Court – Milton, Ontario

Parties and Counsel

For the Prosecution: C. Cull (Town of Halton Hills)

For the Defendant: S. Filbert, Counsel for Jeffery Peuker

Statutes, Regulations and Rules Cited

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

Cases Cited

• R. v. Fitzpatrick, 2015 ONCJ 612
• R. v. Charlebois, 2015 CarswellOnt.7802 [2015] OJ No. 2805 122 W.C.B. (2d) 54
• R. v. Mughal, 2014 ONCA 349
• R. v. Fabian, 2015 ONCJ 55
• R. v. Grech-Vennare, 2013 ONCJ 278
• R. v. Latoski
• R. v. W(D), 1991
• R. v. Zach
• R. v. Gill, 2008 ONCJ 502
• R. v. Kurtzman
• Ministry of Transport v. Ryder Truck Rental Canada Ltd.
• Ministry of Labour v. Hamilton

Publications Cited

Hutchinson, Rose and Downes, The Law of Traffic Offences

Reasons for Judgment

P. BONAS, J.P.:

The Charge

[1] The defendant Jeffery Peuker is charged that on the 19th day of January, 2016, at Steeles Avenue and Trafalgar Road in Halton Hills, that he did commit the offence of drive with a hand-held communication device, contrary to s. 78.1(1) of the Highway Traffic Act.

[2] This matter was heard by this Court on July the 13th, 2016, afterwards judgment was reserved for two reasons; firstly, of the time of the day of the completion of evidence and submissions, plus other matters on the docket having to be addressed. And secondly, it was adjourned for judgment because of this Court's availability to return to this jurisdiction to render decision and to receive and review further case law from the parties.

Legal Principles

[3] As my colleague, His Worship Dechert, stated in R. v. Fitzpatrick at paragraph three and I quote:

"The ultimate issue in this proceeding is whether the prosecution has proven all the essential elements of the 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".

The Law

[4] THE LAW:

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] Given the conflicting positions of Ms. Carolann Cull, the prosecutor representing the Town of Halton Hills, and Mr. Shawn Philbert, counsel for the defendant, it became necessary to restate what the authors of the book, "The Law of Traffic Offences", described as the classic statement of the design and rationale on the system of classification of every criminal and quasi-criminal offence in Canadian Law.

Classification of Offences

[6] The offence charged has its beginning in the seminal judgment of R. v. Sault Ste. Marie, in which His Honour Justice Dickson as he was then, recognized a third category of offences in addition to those offences requiring proof of mens rea and those of absolute liability. So, a third category of offences was identified. At page 374 of the judgment in R. v. Sault Ste. Marie, His Honour Dickson described this category of offences as such and I quote:

[7] "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 by proving that he took all reasonable care to avoid the offending action. This involved consideration of what a reasonable person 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."

[8] Justice Dickson described the balance in this approach by saying that,

"While it relieved the prosecution of the burden of proving mens rea or a guilty mind, it also falls short of imposing absolute liability which would deny an accused any defence whatsoever."

[9] He explained the fairness of putting the burden on the accused to establish a defence of due diligence as follows at page 373 of R. v. Sault Ste. Marie and I quote:

"In a normal case, the accused alone will have knowledge of what he has done to avoid a breach (and with emphasis on to avoid a breach) and it is not improper to expect him [the accused] to come forward with the evidence of due diligence."

Framework for Categorization

[10] Now in its authoritative text on the "Law of Traffic Offences", the authors, Hutchison, Rose and Downes, went into detail as it relates to the process of categorization of these offences and I quote:

"There is in effect a presumption that all regulatory (virtually all Provincially created offences and almost all Federally created offences) outside the Criminal Code will be classified as strict liability. The parties seeking to have the Court interpret the offences either absolute liability or full mens rea, bears the burden of persuasion. In determining whether an offence ought to be interpreted as one of absolute liability rather than strict liability, the Courts will examine:

1. the overall regulatory pattern adopted by the legislature,

2. the subject matter of the legislation,

3. the importance or severity of the penalty,

4. the precise language used in the statute creating the offence."

[11] In addition, the Court must consider the constitutional limits imposed on the creation of offences of absolute liability in a number of cases that will be discussed. In examining the overall regulatory pattern, the Court will consider whether the language of the provision is direct and the issue of compliance is straightforward and simple. If the language would seem to invite no possible exception to enforcement, this will speak in favour of a finding of absolute liability. One further consideration is the impact of classification on the effective enforcement of the statute creating the offence. If it is impossible or impractical to enforce the prohibition if the offence is classified as strict liability, then Courts will be inclined to accept the prosecutor's contention that it is properly considered to be an offence of absolute liability.

[12] If, however, the statute is complex and on its face permits exemptions (however narrowly defined), the Court may be inclined to conclude that the limited defence available for strict liability offences attaches to the offence. The subject matter of the legislation involves an examination of the area of activity regulated and the role of the offence in that regulation. If universal compliance is essential or important to the proper operation of the regulatory regime in question, then the Court may be more inclined to conclude that the offence is one of absolute liability.

[13] The language used is also relevant. Clearly language explicitly stating that an offence is one of absolute liability will suffice in any statutory interpretation exercise. It is not enough, however, that the legislation says, "No one shall". While such language is apparently "absolute" in its framing, it is, standing alone, little more than the standing language of prohibition in Canadian Law.

Categorization of the Present Offence

[14] The offence of drive hand-held communication, may, therefore, only be categorized as either a strict or absolute liability offence. Accordingly, if the prosecution is able to prove all the elements of the subject prohibitive act beyond a reasonable doubt, the fault element of negligence is automatically imported into the offence. If the offence is one of strict liability then the accused will be afforded the opportunity of avoiding liability for the offence by proving on a balance of probabilities that in committing the offence he or she took all reasonable care.

[15] On the other hand, if the offence falls into the exceptional category of absolute liability, it is not open to an accused to exculpate himself or herself by showing that he or she was free of fault.

[16] His Worship Justice Dechert of this jurisdiction, in his case R. v. Fitzpatrick, indicated and I quote at paragraph nine,

"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."

[17] Unlike the case of R. v. Fitzpatrick, in this case before this Court, both the prosecutor and the counsel made legal arguments pertaining to the issue of the categorization of the subject offence.

The Evidence

[18] THE EVIDENCE

The testimony of Constable Marshall was that he was employed with the Halton Regional Police force since 2009 as a police officer. On the 19th of January, 2016, he was in uniform patrol at Steeles and Trafalgar Road in an unmarked SUV Expedition police vehicle.

[19] The officer described the weather at the time as clear, cold, with dry roads, temperature of minus six degrees Celsius and that the area was designated commercial. He further testified that at approximately 1:17 p.m., he was stopped in the westbound lane of Steeles Avenue facing westbound and making general observations of the area. Further that he looked to his left and observed a westbound vehicle approaching from the rear.

[20] Constable Marshall went on to indicate that this vehicle pulled into the right left turn lane of two left turn lanes at the intersection of Steeles and Trafalgar Road. He testified further that that lane was directly beside the lane in which he was situated and that the vehicle he had observed slowed and then came to a stop beside him.

[21] Constable Marshall testified that he observed the male driver of that vehicle operating a black hand-held communication device in his right hand which he described as a black cell phone and which was held down to the right near the driver's knee. Further that the screen on the cell phone was illuminated and that the driver's thumb was touching the screen.

[22] The officer said that he made these observations over a period of some 10 seconds and he also reiterated that the vehicle had been in motion and that it slowed before coming to a stop.

[23] Constable Marshall stated that the driver looked up, looked at him and put the phone down. The officer testified that he conducted a traffic stop on that vehicle on Trafalgar Road south of Steeles, approached the vehicle and identified the driver as a Jeffery Peuker which is the defendant.

[24] Officer Marshall testified that the defendant was operating a 2012 Nissan white in colour, license plate number 776 OZW, and that he, the officer, had been stopped at a red light in an elevated position as he made his observations from a stationary position approximately two to three feet away into the lane and the vehicle stopped beside him.

Cross-Examination of Constable Marshall

[25] In cross-examination, Constable Marshall testified that the defendant was operating a commercial motor vehicle, that he had made the observations from an elevated position and that he could not recall if there was salt or snow on the window of the defendant's vehicle.

[26] Officer Marshall in response to defence counsel's line of questioning as to the defendant's right to remain silent, answered that he did not ask the defendant if there had been an emergency and that although he and the defendant had a conversation, no information was given to him by the defendant as to any emergency.

[27] The officer acknowledged that it was the defendant's constitutional right not to engage in providing an explanation to the officer. The officer, however, testified that he could not envision a situation in which a person who was having an emergency and had been pulled over by a police officer would choose not to volunteer such information.

[28] Constable Marshall stated that it was possible that his window, presumable his driver's side window had snow and salt and that his observations could have been less than 10 seconds, but that his observation was clear into the interior of the defendant's vehicle.

[29] The officer continued in testimony during cross-examination that as the defendant was approaching the red light westbound on Steeles at Trafalgar, he stopped and it was at that point that the officer's observations commenced.

[30] Officer Marshall demonstrated with a slight body movement and I quote, "He was down like this and he continued using it as he was stopped", indicating the driver's use of the hand-held communication device.

[31] When Constable Marshall demonstrated a second time and testified, I quote, "Then he starts looking around, looks over at me and puts the phone down to the side." At this point in time he was challenged by defence counsel about this issue of the defendant looking around. Apparently those words were not in the officer's notes. The officer concluded by reiterating that the defendant at a certain point did look around, that he probably looked at the traffic lights and then looked around and saw the officer.

Defendant's Testimony

[32] The defendant, Mr. Peuker, testified that he was in fact driving a company vehicle on the 19th of January, 2016, westbound on Steeles Avenue. He went on to say that he had been employed at the same company (Consistent Cooling) for some 18 years and that during the course of his employment or his work day, there is occasionally a requirement for him to use the cell phone to be in contact with his office.

[33] Mr. Peuker further explained that the vehicle he was operating was equipped with Bluetooth technology through its factory stereo system.

[34] The defendant went on to testify that the company cell phone was contained in a mount on the dashboard of the vehicle to his right beside the steering wheel and attached to an air vent. He explained that it was his company's policy of a prohibition on the use of the phone for texting or anything else as the defendant, Mr. Peuker, described it while the company's vehicles are being operated on the highway.

[35] Mr. Peuker went on to explain that the Bluetooth system is activated via emblems which are activated when it connects to a contact on his contact list. Several photos were entered as exhibits, photos of the car mount as well as a photo of the interior of the company van showing the steering wheel and the centre console.

[36] The defendant testified that he was operating his company vehicle westbound on Steeles Avenue, which was in fact a commercial van, approaching the Trafalgar outlet mall when he went through some rough spots in the road which caused the cell phone to become dislodged from its mount and fall to the floor in the brake/accelerator pedal area.

[37] Mr. Peuker explained that he immediately became concerned about this which he assumed posed a safety hazard in the proper operation of the motor vehicle. Further that he observed that the Bluetooth had become disconnected when the phone fell to the floor.

[38] The defendant said that on his approach to Steeles Avenue and Trafalgar Road intersection, he pulled into the left turn lane and as he was slowing down to a stop, he reached down with his right arm and picked up the cell phone. He went on to say that he proceeded to wipe the screen of the phone from the debris and moisture that had collected on the vinyl floor of the van with his thumb. The defendant also said that while performing that action, he noticed the police officer in an unmarked SUV beside him and he instantly put the phone down. Further that he was wiping the screen with his thumb for only a few seconds before he noticed that the person beside him was in fact a police officer.

[39] The defendant also said that his work phone does have a text messaging feature for communicating with his colleagues on his job. Mr. Peuker did in fact concede that he was in fact holding the cell phone when he was observed by Constable Marshall.

Analysis and Findings

Categorization of the Offence

[40] Counsel for the defence thereupon requested of the Court at the conclusion of the prosecution and defence cases via submissions to treat the subject offence of drive while holding a hand-held communication device under s. 78.1(1) of the Highway Traffic Act as a strict liability offence. Defence counsel also provided a book of authorities in support of his position including R. v. Fitzpatrick, R. v. Charlebois and other matters as well as R. v. Mughal, R. v. Fabian and R. v. Petrovic; these cases which the Court reviewed.

[41] Specifically Mr. Philbert, defence counsel, suggested that the issue was stuck in a statutory vise or more colloquially in a zone that this Court could refer to as "Forever amber".

[42] His Worship Dechert is correct when he concluded in his decision in R. v. Fitzpatrick at paragraph nine which this Court already alluded to that "Various trial level Courts of the Ontario Court of Justice have interpreted this offence as being one of either strict liability or absolute liability and that the proper categorization of the offence has not yet been definitively resolved by a binding appellate authority."

The Kazemi Decision

[43] In R. v. Kazemi, a 2012 decision of the Ontario Court of Justice, the appeal judge dealt with the issue of momentary handling of a cell phone and whether that comported with the ordinary meaning of handling. The learned judge dismissed the conviction that was registered by the presiding justice of the peace. The matter went before the Ontario Court of Appeal in the same case R. v. Kazemi in 2013, in which the Ontario Court of Appeal again dealt with the issue of momentary handling of a cell phone and whether it comported with the ordinary meaning of handling.

[44] It seems clear from the Ontario Appeal Court's decision that it meant to communicate that the legislature's purpose of promoting road safety was best served by a complete prohibition of holding cell phones.

Legislative Intent and Purpose

[45] Indeed, Her Worship Opalinski in her decision in R. v. Grech-Vennare referred to the Honourable Jim Bradley's comments (the Minister of Transportation) at paragraph 26 of her decision when Bill 118 countering distracted driving and promoting Green Transportation Act of 2009 was introduced in Parliament and I quote at paragraph 26 of Justice Opalinski's decision,

[46] "Our eyes on the road, hands on the wheel legislation, aims to stop the use of wireless hand-held 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 sake, drivers should focus on one thing and one thing only, driving."

[47] The prosecutor in her submissions demurred. She asked the Court to rely most on the trial court's decision in R. v. Kazemi, the decision of 2012 and 2013 of the Ontario Court of Appeal. The prosecutor, Ms. Cull, reminded the Court that the defendant had admitted to holding a cell phone in his hand and questioned how the defendant was able to slow his vehicle down and bring it to a complete stop beside the police officer's vehicle after he which he was observed handling the phone for some 10 seconds.

Comparison with R. v. Kanda

[48] In the case of R. v. Kanda, K-A-N-D-A, which was an appeal by the crown from a summary conviction, Appeal Court's decision, allowing the appeal of the defendant. In that case, R. v. Kanda, the defendant was charged with violating s. 106(6) of the Highway Traffic Act, that being the seatbelt legislation. This was after police constable Isaacs stopped the respondent's vehicle and discovered that his eight year old son was not wearing a seatbelt. The defendant testified that he had ensured his 12 and 8 year old sons were wearing seatbelts when they left the family home. He was not aware that his youngest son sitting in the back seat had unfastened his seat belt during the drive.

[49] The trial judge determined that s. 106(6) of the Highway Traffic Act was an absolute liability offence and convicted the respondent. On appeal, the summary conviction appeal court concluded that s. 106(6) was a strict liability offence and the respondent was entitled to advance a defence of due diligence. The sole issue on appeal was whether 106(6) of the H.T.A. was a strict or absolute liability offence.

[50] This Court refers to R. v. Kanda for several reasons including the necessity to show the distinguishing features between that case and the case that's presently before this Court and I will get into that shortly.

Application of the Sault Ste. Marie Framework

[51] In R. v. Sault Ste. Marie, Justice Dickson articulated a presumption that public welfare offences are strict liability offences. Accordingly, this presumption must be the starting point in an analysis of a regulatory provision such as s. 106(6) of the Highway Traffic Act.

[52] Second; the classification of a particular provision follows from an assessment of the four factors set out in the emphasized portion of the passage. That being the overall pattern, the subject matter, the penalty and the precision of the language used.

[53] It is to that particular assessment that this Court now turns and which this Court would refer to in its ultimate assessment of the proper categorization under s. 78.1(1) of the Highway Traffic Act; the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance of the penalty and the precise language used in the statute creating the offence.

[54] After having considered these four factors, the Appeal Court decided that the subject matter of s. 106(6) of the Highway Traffic Act supports a classification of the offence as strict liability. It's said that the classification struck an appropriate balance between encouraging drivers to be vigilant about the safety of child passengers in their vehicle and not punishing those who exercise due care or due diligence with respect to children's seat belts.

[55] The Court also went on to indicate at paragraph 39 that it was true that some offences employing that no person shall or every driver shall formulation have been interpreted as absolute liability offences, as indicated in R. v. Kurtzman supra; failing to stop at a red light and R. v. Latoski at paragraph 257 from the Ontario Court of Appeal. That Court went on to say that, "However, in those cases the prescribed conduct resulted directly from the person's own action. However, s. 106(6) of the H.T.A. on the other hand, deals with a situation in which another person, the child passenger is potentially involved in creating the violation."

[56] And that, as I indicated earlier, is in stark contrast with s. 78.1(1) in that only one individual is involved in any perceived violation under that particular section.

Distinguishing Factors from Kanda

[57] This Court has also considered the overall regulatory pattern adopted by the legislature, the subject matter of the legislation, the importance and severity of the penalty that it is now on conviction, for a first offence I believe of $1,000.00, as well as the accumulation of three demerit points and the specificity of the language used in the statute.

[58] In this matter and despite the above, the distinguishable facts from this case as it relates to R. v. Kanda are fairly significant. As I said, 1) while the penalty on conviction for s. 106(6) of the H.T.A. is a modest fine, of not less than $60.00 and not more than $500.00 with respect to the general penalty section, as opposed to a violation and a conviction under s. 78.1(1), which carries a substantially higher fine of not less than $300.00 and not more than $1,000.00.

[59] Secondly; a conviction under s. 106(6) carries with it two demerit points while a driver convicted for drive with a hand-held communication device accumulates three demerit points which is closer to the nine points threshold required for the suspension of a driver's licence.

[60] Additionally, as the Ontario Court of Appeal stated in Kanda in reference to its decision in R. v. Kurtzman that "There is little, if any, stigma attached to a violation of H.T.A. provisions governing compliance with traffic signal indicators." That Court went on to say that "By parity of reasoning the same point could be made about the stigma attached to a violation of s. 106(6), of the Highway Traffic Act.

[61] It bears repeating that under s. 106(6), involvement of another individual and not just the driver is required. While under 78.1(1), only the driver's actions are scrutinized."

The Distracted Driving Crisis

[62] Unlike this assessment, the scourge of distracted drivers wreaking havoc on Ontario's highways has taken on almost universal significance. Quite recently, articles in the media and opinion pieces have drawn even more tension to the incidents of distracted driving causing death as having overtaken the number of fatalities emanating from impaired driving offences.

[63] This reiterates that the Honourable Jim Bradley, the 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 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."

[64] 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.

[65] The Minister's comments emphasize and capture the sentiments of the general public of Ontario as it pertains to distracted driving. Additionally, as a result those convicted under 78.1(1) have experienced other sanctions from insurer's and its accompanying stigma.

[66] Moreover, Parliament has provided for very specific exemptions to s. 78.1(1) recognizing that in today's highly technical world of instant communications via devices unheard of some 20 to 25 years ago, that it is in the public's interest for an almost total ban on the use and handling of mobile communication devices while operating a motor vehicle on a highway.

[67] The language, purpose and the absence of language which might indicate or refer to a driver having any reasonable excuse for using or holding a hand-held communication device is glaringly absent in the section.

Statutory Interpretation Principles

[68] This Court has taken its direction, in terms of the interpretation of the legislation, from the Ontario Court of Appeal in the case of The Ministry of Labour v. Hamilton, in which the Court addressed the interpretation of statutes like the Occupational Health and Safety Act and other statutes by addressing the guiding principles surrounding this type of legislation.

[69] The Court said that it is important to bear in mind certain guiding principles. Protective legislation designed to promote public health and safety is to be generously interpreted in a manner that is in keeping with the purposes and objectives of the legislative scheme.

[70] His Honour Justice Laskin adopted the same principles when interpreting the Highway Traffic Act dealing with the hazard of flying truck wheels in Ontario. The Ministry of Transportation v. Ryder Truck Rental Canada Ltd. at pages 171 to 174 and I quote:

"The modern approach to statutory interpretation calls on the Courts to interpret a legislative provision in its total context. The Court should consider and take into account all relevant and admissible indicators of legislative meaning.

[71] The Court's interpretation should comply with the legislative text, promote the legislative purpose, reflect the legislature intent and produce a reasonable and just meaning.

[72] The purpose of the statute and the intention of parliament in particular are to be determined on the basis of intrinsic and admissible extrinsic sources regarding the Acts legislative history and the context of its enactment."

[73] Obviously the alarming increase in violations of this type under s. 78.1(1) resulted or has resulted in death and injury on the Province's highways thus resulting in amendments to the section in a more meaningful fashion.

Court's Conclusion on Classification

[74] In this Court's opinion, the rules of statutory interpretation with respect to regulatory offences such as the offence under s. 78.1(1) of the Highway Traffic Act, militates towards an interpretation in favour of an absolute liability offence and seems to reflect and give effect to Parliament's intent to keep the roads of our Province as safe as possible.

[75] Further, it reflects the growing societal concerns with distracted driving. As this Court indicated earlier, it is satisfied that the actus reas of the offence has been established. Indeed, the defendant, Mr. Peuker, confirmed that he held the mobile communication in his right hand while he was operating the motor vehicle on Steeles Avenue and further that he had been observed by Constable Marshall.

Credibility Assessment

[76] I hasten to add that I have accepted the officer's evidence applying a W(D) analysis. I have determined that there is significant difficulty in Mr. Peuker's explanation as to how the cell phone found its way into his hand.

[77] To the extent that he was not using the phone:

1. Why was there a need to clean it?

2. Why was there a need to remove debris and moisture from the cell phone screen while driving if there was no intent to use the phone rather than seek to retrieve it?

3. There was no evidence that the defendant had any difficulty slowing and bringing his vehicle to a stop which contradicts his evidence surrounding any perceived risk that the fallen phone might have posed by becoming lodged under the brake pedal.

[78] In this Court's view, the defendant if believed was involved in an abject exercise of risk speculation.

[79] Now upon discovering debris on the phone, it does seem odd that anyone would use a thumb to clean it. It stands to reason that anyone would use the upholstery of the passenger's seat in a wiping motion or an item of clothing, a pant leg, or the sleeve of a shirt or a jacket to clean the cell phone of any moisture or debris.

[80] Additionally, Mr. Peuker's testimony was that the phone had fallen in an area of the accelerator and brake pedal – not under the brake pedal which would have presumably posed the greater risk.

[81] So along those lines, again in a risk speculation exercise, the defendant testified that it was his opinion that the phone had fallen in the area of the brake pedal and the accelerator, not under the brake pedal.

[82] He also testified and I accept his testimony that he had researched and read the Ministry of Transportation website to see what was allowed under s. 78.1(1) and I accept that the defendant is or at the very least fairly conversant and knowledgeable about the exemptions and the law under the section.

[83] However, I find Mr. Peuker's incredible reason for having the cell phone in his hand and moving his thumb across its face at exactly the time that he was observed by the police officer simply defies comprehension.

[84] While this Court recognizes the defendant's Charter rights to remain silent, the question begs to be answered; why did Mr. Peuker not draw this scenario to the officer's attention? The defendant's failure at providing what amounts to a very simple and reasonable explanation or an account of what happened is baffling.

[85] As Justice Dickson said in Sault Ste. Marie, "It is not improper to expect the defendant to come forward." This Court says that even at the point of the traffic stop and recognizing the defendant's Charter rights not to talk to the police officer, Mr. Peuker had that opportunity but he chose not to come forward.

Burden of Proof Met

[86] Accordingly, this Court finds that the prosecution has met its burden beyond any reasonable doubt by an application of the third factor in the R. v. W(D) analysis; that being that the Court has accepted the evidence of Constable Marshall and the Court finds that the prosecution has met its burden beyond any reasonable doubt, with emphasis on reasonable doubt, that in fact the offence under s. 78.1(1) of the Highway Traffic Act had been committed by the defendant.

Alternative Finding on Due Diligence

[87] Now in the event that this Court is wrong in its classification of the offence under the subject section, it is also this Court's opinion that in light of the evidence proffered by the defendant as to a due diligence defence where the Court has to apply a test on a balance of probabilities, I find that the defendant has failed to satisfy this Court that he took all reasonable care to avoid the offending action.

[88] There was no evidence other than photos that the mount which held the unit in place was designed for that specific purpose or was of a quality that would withstand normal driving, so much so that it would not become dislodged.

[89] In no way is the Court saying that that is a precursor of any action which might be accorded or considered in the due diligence defence because in the Court's view, the action taken post the phone supposedly being on the floor would have been the action which the Court would have considered as reasonable in the circumstances to avoid any offending action. That offending action ultimately being operating the motor vehicle while holding a hand-held communication device.

[90] There are other measures that the defendant could have taken had he chosen to do so, including pulling onto the shoulders of Steeles Avenue. There was no evidence of heavy traffic. The defendant could have stopped in the left turn lane at the red light and retrieved the phone, but he did not do so.

Evidentiary Issues

[91] Now simply because this Court has chosen not to address all the issues introduced by counsel for the defendant, it does not mean that the Court has not turned its mind to them.

[92] However, I would mention one issue given its recent relevance and mention in Provincial Offences Court. Counsel submitted that there should be limited weight given the reliability of Constable Marshall's evidence because Constable Marshall in his oral testimony indicated in two instances comments or parts of testimony that had not been included in the officer's notes.

[93] Now it is incorrect in law to conclude that because something is not noted in an officer's notes that it is not true or did not happen. In this case, the Court obviously has considered and heard evidence from the officer's independent recollection.

[94] In addition, this Court has taken direction from a number of jurisprudence including R. v. Zach, R. v. Gill and particularly R. v. Machado in which His Honour Justice Durno of the Superior Court of Justice at paragraphs 121 to 122, I quote:

"While officer's notes are provided as part of the disclosure, there is no law that I am aware of that an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation."

[95] Justice Durno went on to say, "That while some have attempted to elevate the judgment in R. v. Zach to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted by the Courts."

Conclusion

[96] Accordingly and in conclusion, this Court again has concluded that Mr. Jeffery Peuker did violate s. 78.1(1) of the Highway Traffic Act, drive with hand-held communication device, on the 19th of January, 2016, having accepted the officer's evidence and finding that the prosecution had met its burden beyond any reasonable doubt on that charge.

[97] Additionally, the Court will reiterate that even if incorrect in that assessment of the categorization of that offence, that the defendant has failed to provide an adequate defence of due diligence on a balance of probabilities, so accordingly a conviction is entered.

Released: September 13, 2016

P. Bonas, J.P.