Court Information

Ontario Court of Justice

Date: 2016-12-13

Location: Kapuskasing, Ontario

Parties

Between:

Her Majesty the Queen

— and —

William Reardon

Judicial Officer and Counsel

Before: Justice M.R. Labelle

Heard on: November 7th, 2016

Reasons for Judgment released on: December 13th, 2016

Counsel:

• Ms. Dominique Lambert — counsel for the Crown
• No appearance by or on behalf of William Reardon, even though notified of time and place

LABELLE J.:

Background

[1] This is an appeal brought by the Crown of a decision made by Justice of the Peace Bourbonnais dated December 9th, 2015 finding the Defendant, William Reardon not guilty of the charge of Driving while handling or using a handheld device contrary to section 78.1(1) of the Highway Traffic Act.

[2] The defendant William Reardon was charged by Certificate of offence that on or about the 27th day of March, 2015 at Government Road, in the Town of Kapuskasing, District of Cochrane, did commit the offence of drive with a handheld communication device contrary to section 78.1(1) of the Highway Traffic Act. Mr. Reardon pled not guilty to the charge and the matter proceeded to a trial on December 9th, 2015.

The Statutory Provision

[3] Section 78.1(1) of the Highway Traffic Act reads as follows:

78.1 (1) 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. 2009, c. 4, s. 2 ; 2015, c. 27 , Sched. 7, s. 18.

Evidence at Trial

[4] The Crown called the arresting officer P.C. Huber who testified that on March 27th, 2015 he was conducting stationary patrol on Government Road in the town of Kapuskasing when he observed a 2015 white Mack commercial motor vehicle travelling westbound on Government Road. He indicated that the driver was operating a rectangular device with both hands above the steering wheel. The officer proceeded to stop the commercial motor vehicle and spoke to the driver who showed him a cell phone, which matched the description of the item that he saw the driver handling.

[5] P.C. Huber testified that he observed the 2015 white Mack commercial motor vehicle drive through the intersection of Government Road and Riverside Drive in the town of Kapuskasing, in the District of Cochrane.

[6] P.C. Huber stopped the vehicle and Mr. Reardon identified himself with his Driver's Licence.

[7] Although not required to do so, Mr. Reardon testified at the trial and indicated to the Court that his cell phone fell off the dash of his vehicle and that he picked up his cell phone above his steering wheel, as he was driving. This confirmed the observations of Cst. Huber.

Trial Decision

[8] The learned Justice of the Peace found Mr. Reardon not guilty indicating that the Crown had failed to prove that the 2015 white Mack commercial vehicle was a "motor vehicle" as defined by the Highway Traffic Act and that Government Road in Kapuskasing, was a highway as defined by the Highway Traffic Act.

[9] The Crown appealed to this Court, seeking a new trial for Mr. Reardon.

Issue

[10] The issue is whether the Crown's witness was required to say the words "as defined by the Highway Traffic Act " for both the vehicle and the road in question, namely Government Road in the town of Kapuskasing.

JURISDICTION OF THIS COURT ON APPEAL

[11] Section 135 of the Provincial Offences Act deals with the authority of the appeal court and the scope of that authority when hearing an appeal.

[12] As stated by Justice Hearn in the POA appeal matter of R. v. Ronald Boyd, (2012) ONJC 126, "The case law sets out the broad scope of the jurisdiction of the appeal court when dealing with appeals under Parts I and II of the Act and differentiates the manner of dealing with those appeals from appeals under Part III. In dealing with appeals under s. 135 the court is not limited as to when it may intervene. Specifically, the court is not required to find that the trial judgment was unreasonable, unsupportable or erroneous in law or indeed that the sentence imposed at trial was unfit, unreasonable or erroneous in principle. All of which are relevant to the determination of Part III appeals but not appeals under Parts I and II."

[13] The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. See R. v. Martin, [2008] O.J. No. 1803.

[14] In R. v. Gill, [2003] O.J. No. 4761, the court considered the authority under the relevant provisions of the Provincial Offences Act dealing with appeals such as that before the court and noted as follows:

"It is not necessary to decide the limits of my authority under these appeal provisions. It suffices to conclude for present purposes that I am quite satisfied that the issue of sufficiency of the evidence to support the conviction is well within my broad jurisdiction. Further, I am of the view that I must review the record before me and reach my own conclusion on the issue. It is not a matter of deferring to the trial justice's conclusion and intervening only if I conclude that her decision was unreasonable. To approach it in that way would be to effectively transpose the Part III provisions to Part I and II appeals when the legislature took pains to distinguish between the two. However, where findings of credibility are in issue I should accept the trial justice's findings unless they are unreasonable."

[15] In this case, the Justice of the Peace did not make any findings of credibility and simply indicated that because the Crown's witness did not say "as defined in the Highway Traffic Act " for both the road and motor vehicle in question, that it had failed to prove these two essential elements of the offence beyond a reasonable doubt.

Analysis

Definitions Under the Highway Traffic Act

[16] Section 1 of the Highway Traffic Act provides for the definitions of "highway", "motor vehicle" and "commercial motor vehicle":

" highway " includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof; ("voie publique")

" motor vehicle " includes an automobile, a motorcycle, a motor-assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; ("véhicule automobile")

" commercial motor vehicle " means a motor vehicle having permanently attached thereto a truck or delivery body and includes ambulances, hearses, casket wagons, fire apparatus, buses and tractors used for hauling purposes on the highways; ("véhicule utilitaire")

Application of Judicial Notice

[17] It is clear from the record, that P.C. Huber described the vehicle in question as a " 2015 white Mack commercial motor vehicle ". In the case of R. v. Aversa, [2007] ONCJ 644, Justice Brewer was dealing with a charge of impaired driving where the officers had testified that they observed the defendant driving a "car". Defence counsel argued that the Crown was required to prove that the defendant was operating a "motor vehicle" and that the Court could not take judicial notice that a "car" was a "motor vehicle". The Crown argued that the ordinary meaning of "car" met the definition of "motor vehicle".

[18] Justice Brewer referred to the Supreme Court of Canada case of R. v. Krymowski (2005), 2005 SCC 7, 193 C.C.C. (3d) 129 where the Court stated the following:

22 A court may accept without the requirement of proof, facts that are either "(1) so notorious or generally accepted as not to be subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy". R. v. Find 2001 SCC 32, [2001] 1 S.C.R. 863 at paragraph 48 , "The dictionary meaning of words may fall within the latter category".

[19] In the case before me, P.C. Huber clearly identified the vehicle in question as a " 2015 white Mack commercial motor vehicle ". The fact that P.C. Huber used the words " motor vehicle " in describing the vehicle should have been sufficient for the learned Justice of the Peace to conclude that there was more than enough evidence to conclude that the description of the officer met the definition of "motor vehicle" in the Highway Traffic Act. As well, the Highway Traffic Act provides a definition of a " commercial motor vehicle ", which were the exact words used by P.C. Huber. There should have been no doubt that the Crown had proven that the defendant was driving a " motor vehicle " and there was no need for P.C. Huber to use the "magic" words "as defined by the Highway Traffic Act" in his evidence.

[20] Also, there is no doubt from the record before me that Cst. Huber testified that the vehicle had been observed travelling through the intersection of Government Road and Riverside Drive in the town of Kapuskasing, in the District of Cochrane. As stated previously, "a court may accept without the requirement of proof, facts that are either "(1) so notorious or generally accepted as not to be subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy". This is also referred to as the Court taking judicial notice of certain facts.

[21] The case of R. v. Potts (1982), 66 C.C.C. (2nd) 219 (Ont. C.A.) leave to SCC refused, dealt with a similar argument where the defendant had been charged with speeding on Colonel By Drive in Ottawa. The Ontario Court of Appeal was of the view that the Justice of the Peace was entitled to take judicial notice that Colonel By Drive was a "driveway" within the National Capital Region, without any proof being heard, as it was so notorious and generally accepted by members of the community that indeed it was. In my view it is notorious and generally accepted in the community of Kapuskasing that Government Road is a major thoroughfare. It is clearly a public highway for use by the general public for the passage of vehicles and would meet the definition of "highway" as defined by the Highway Traffic Act. Again, it was not necessary for the Crown witness to testify that Government Road "was a highway" as defined by the Highway Traffic Act. There is no need for witnesses to go through a mechanical recantation of the words "as defined by the Highway Traffic Act " as these are not magic words, required to attract a conviction.

Decision

[22] For the reasons indicated above, the Crown's appeal must succeed and a new trial is hereby ordered.

Released: December 13th, 2016

Signed: Justice Michel R. Labelle