Court Information
Court of Justice of Ontario
Citation: R. v. Beaulieu, 2017 ONCJ 438
Date: June 22, 2017
File No.: Kitchener 4460-3863485B
Parties
Between:
Her Majesty the Queen
— and —
Christine Beaulieu
Before: Regional Senior Justice of the Peace Thomas Stinson
Heard: March 2, 2017
Reasons Delivered: June 22, 2017
Counsel
For the Crown: D. Veinot
For the Defendant: Christine Beaulieu (Self-represented)
Decision
Regional Senior Justice of the Peace Stinson:
[1] On February 9, 2016, Christine Beaulieu was driving her motor vehicle on Pinebush Road in the City of Cambridge.
[2] At the same time, Officer Ball of the Ontario Provincial Police was driving an unmarked police vehicle westbound on Pinebush Road. He stopped at a red light at the intersection of Highway 24. In the lane beside him to the left, Officer Ball observed a Volkswagen automobile with a woman at the wheel, also stopped at the red light. According to Officer Ball, this woman was holding an iPhone in her right hand. In his opinion, she was touching the screen, possibly sending a text message.
[3] As a result, the officer conducted a traffic stop. The driver identified herself as Christine Beaulieu and produced her driver's license, vehicle registration certificate, and proof of insurance for the vehicle. Officer Ball charged her with the offense of driving her motor vehicle while holding or using a handheld telecommunications device or other prescribed device capable of receiving or transmitting telephone communications, electronic data, electronic mail, or alphanumeric messages, contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.
[4] The defendant's evidence was quite different in certain respects. Yes, she had an iPhone with her, but she was using it only as a global positioning system. In using it, however, she explained that she was not touching the device.
[5] In support of her position, the defendant relies on two decisions of the Ontario Court of Justice.
[6] The first of these decisions is that of Justice of the Peace Kowarsky in the matter of R. v. Srecko, 2016 ONCJ 499.
[7] The defendant provided me with this case as an example in which the justice of the peace, using the analysis established by the Supreme Court of Canada in its decision in R. v. W.D., [1991] 1 S.C.R. 742, concluded that he had a reasonable doubt as to whether the defendant in his case was using the handheld telephone. Reasonable doubt always favours the defendant.
[8] But there is a marked difference between the Srecko case and the present case. If Justice of the Peace Kowarsky had believed Mr. Srecko's evidence, he would have found him not guilty on the first element of the credibility test set out in R. v. W.D. This is because Mr. Srecko's version of the facts clearly placed him within the exemption provided in section 14 of Ontario Regulation 366/09, entitled Screens and Handheld Devices.
[9] With respect to this fact, even if I accept the defendant's version of events, it does not permit her to satisfy any of the exemptions provided by the legislation. The defendant's version of events consists of using her telephone as a global positioning system and that the telephone was sitting on her lap, on her thigh. She was listening to the telephone as it gave instructions. She was not reading anything from the screen.
[10] As I will explain shortly, in the context of examining the second case cited by the defendant, it is the defendant's own evidence that condemns her of the offense with which she is charged.
[11] The second decision is that of Justice Epstein in the matter of R. v. Whalen, [2014] O.J. No. 2386, 67 M.V.R. (6th) 340 (Ont. C.J.).
[12] The defendant relies principally on this case because of the reference made by His Honour at paragraph 19 of his decision.
[13] In that paragraph, His Honour cites the debates of the Ontario Legislative Assembly on November 20, 2008, in which the Minister of Transportation indicated that, in accordance with this article of the legislation, global positioning system units would still be permitted.
[14] This corresponds to the defendant's evidence that she was using her handheld device as a global positioning system. However, in the comments to the Legislative Assembly, the Minister was more precise. Global positioning system units would still be permitted only if they are mounted on a dashboard.
[15] The Minister's comments, perhaps not surprisingly, correspond to what is now found in the law.
[16] Throughout Ontario Regulation 366/09, there are exemptions that permit certain categories of drivers to use a device with a screen or a handheld telecommunications device. And section 7 of Regulation 366/09 permits any driver of a motor vehicle to use the screen of a device that displays either information about road or weather conditions.
[17] However, to be eligible for any of these exemptions, the regulation is very clear and specific. In all cases, the screen or device itself must be securely placed or mounted in the motor vehicle in such a manner as not to move while the vehicle is in motion and the driver can see it by taking a quick glance and can access it easily without adjusting his or her position at the wheel.
[18] The defendant's device was not securely placed or mounted on the motor vehicle, so it did not remain stationary when the vehicle was in motion. The potential for distraction from such a device used in this manner is exactly the type of distraction that the legislation attempts to prohibit, and that Justice Epstein condemned in the Whalen case. Allowing the iPhone to remain loose on the lap or on the thigh places it within the definition of "driving a motor vehicle while holding or using a handheld telecommunications device" as stated in section 78.1 of the Highway Traffic Act.
[19] I am satisfied beyond a reasonable doubt that the defendant was driving her motor vehicle while using a handheld telecommunications device on February 9, 2016. I find her guilty and will record a conviction.
Reasons Delivered: June 22, 2017
Signed: Regional Senior Justice of the Peace Thomas Stinson