Court Information

Date: September 27, 2017

In the Matter of: the Highway Traffic Act, R.S.O 1990, c. H.8

Between: Her Majesty The Queen In Right Of Ontario As Represented By The Ministry of Transportation Prosecutor

and

Kirubakaran Balasubramaniam Defendant

Ontario Court of Justice Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Trial held: May 23, 2017

Judgment released on: September 27, 2017

Charges

s. 78.1 H.T.A. – "drive with hand-held communication device"
s. 107(7) H.T.A. – "fail to surrender completed daily inspection report"

Counsel

P. Moore, counsel for the Ministry of Transportation
R. Burd, legal representative for the defendant, Kirubakaran Balasubramaniam

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Exhibits Entered

Exhibit "1" - Certified copy of Ministry of Transportation document dated September 20, 2016, in respect to Kirubakaran Balasubramaniam's driver's licence information, which indicates that he has a Class A driver's licence with Z = Air Brake endorsement. (2 pages)

Exhibit "2" - Certified copy of Ministry of Transportation document dated September 20, 2016, in respect to licence plate number PTW816 issued by the province of New Brunswick, which was issued for a 2016 commercial white-coloured Volvo truck indicated as a Conventional Tractor with a Registered Gross Weight of 41,500 kg and registered to the lessee AARON LOGISTICS INC. of Toronto Ontario and the owner VFS Canada Inc. of Aurora Ontario. (2 pages)

1. INTRODUCTION

[1] To ensure that public roadways in Ontario are safe for all who use or travel on them, motorists are required to follow the statutory rules that are set out in the Ontario Highway Traffic Act and its accompanying regulations. There is, unfortunately, one modern-day activity that has led to a significant number of accidents occurring on public roadways, which have been brought about by distracted drivers. These distracted drivers have become increasingly involved in motor vehicle collisions that have resulted in major property damage, fatalities, and significant injuries. This increase in distracted driving has been caused by the widespread use of hand-held mobile communication devices among society in general, but particularly, by motorists holding and using cellphones while they are driving. Consequently, new statutory rules have been enacted by the Ontario Legislature to combat this problem created by the pervasive use of hand-held communication devices by motorists and to prevent accidents caused by this distracted-driving phenomenon. Motorists in Ontario are now barred from holding or using hand-held communication devices while they are engaged in driving a motor vehicle on a highway, except under emergency-type situations.

[2] These new statutory rules that were implemented to counter distracted driving in Ontario had been enacted under s. 2 of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009, c. 4, and came into force on October 26, 2009. They are set out in ss. 78(1) and 78.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") and the Display Screens and Hand-Held Devices Regulation, O. Reg. 366/09. But more importantly, the specific measures provided under s. 78.1, which ban motorists from using or holding hand-held communication or electronic entertainment devices, as well as under s. 78(1) which prohibit display screens of a television, computer, or other device in a vehicle being visible to the driver, while they are driving on a highway are intended to protect the public from the inevitable harm brought about by distracted drivers in those particular situations.

[3] Therefore, under s. 78.1(1) of the HTA a motorist, for instance, would be prohibited from holding and typing text messages or from sending or reading e-mails on a cellphone, while driving or operating a motor vehicle on a highway. This prohibition against holding or using hand-held communication devices while driving a motor vehicle on a highway would apply unless, for example, the device is being used in a hands-free mode or used in conjunction with some type of hand-free device, or the driver is calling 9-1-1, or the motor vehicle is off the roadway and not impeding traffic, or the motor vehicle is lawfully parked. On the other hand, emergency services, such as police, fire and ambulance, would be exempted from this particular prohibition.

[4] And, as equally important for highway safety, another set of statutory rules have also been enacted under the HTA to regulate the trucking industry and to ensure that large commercial trucks are driven and operated safely on public roadways. Included in these particular statutory rules is a requirement that drivers or operators of commercial motor vehicles conduct a daily pre-trip inspection of their trucks before they are driven onto a highway and to record the details and necessary information for these pre-trip inspections of their commercial motor vehicles in a daily report or log, and to submit such a report or log to enforcement officials upon demand, when their trucks are stopped on a highway for a safety inspection or compliance check.

[5] Now, in this particular HTA prosecution, the defendant, Kirubakaran Balasubramaniam, who had been driving a 2016 white-coloured Volvo commercial transport truck, without pulling a trailer (commonly referred to as "bobtailing"), had been charged on August 16, 2016, at 2:59 p.m., with committing two HTA offences in respect to the commercial transport truck he had been operating while proceeding southbound on Dixie Road in the City of Brampton. They are for (1) "drive with hand-held communication device", contrary to s. 78.1(1) and for (2) "fail to surrender completed daily inspection report" for that commercial truck, contrary to s. 107(7).

[6] The defendant had been observed on that date by Officer Eustace supposedly holding and typing on a hand-held communication device, described by Officer Eustace as a "phone", while the white-coloured Volvo transport truck the defendant had been operating had been stopped for a red traffic light at Midway Boulevard, southbound on Dixie Road in the City of Brampton. In addition, after Officer Eustace had stopped the 2016 white-coloured Volvo commercial transport truck to investigate the driver for holding a hand-held communication device, Officer Eustace had asked the defendant to provide him with the daily pre-trip inspection report for that commercial transport truck. The defendant had been unable to do so and did not initially mention anything to Officer Eustace about an electronic log book that had been mounted on the dashboard in the cab of the truck until about 15 to 20 minutes later. When Officer Eustace was eventually informed by the defendant about the existence of the electronic log book in the cab of the defendant's truck, the defendant had also given Officer Eustace full and complete access to that electronic log book. Officer Eustace then proceeded to scroll and navigate through the menus and pages in the electronic log book, which is a device that can be used to record the pre-trip inspection report. However, in his examination of the electronic log book, Officer Eustace said he had been unable to find a completed daily pre-trip inspection report with the statutorily-required information. Furthermore, Officer Eustace had testified at trial that he did not find, in particular, any information in the electronic log book about the odometer reading for the commercial transport truck, nor did he find any information about where and when the pre-trip inspection of the commercial motor vehicle had been conducted, nor did he find a statement in the electronic log book that had been signed by the defendant indicating that the pre-trip inspection had actually been done for that day.

[7] In his defence to the charge of "drive with hand-held communication device", the defendant contends that he did not contravene s. 78.1(1) of the HTA, since he had been stopped at a red traffic light, which he contends would not constitute "driving" on a highway for the purposes of s. 78.1(1). To support his argument, the defendant relies on West J.'s ruling in R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), in which it had been held that a motorist, who had picked up his cellphone after his motor vehicle had been put into the "park mode" and after it had been stopped at a red light, was not driving on a highway. In addition, the defendant contends that Officer Eustace did not give a description of the device that had been supposedly held and typed on by the defendant, and as there is evidence that there were three electronic devices in the cab of the truck which were not all hand-held communication devices, then the defendant argues the prosecution has not proven beyond a reasonable doubt that the defendant had been actually holding a hand-held communication device.

[8] And, for the second HTA charge of "fail to surrender completed daily inspection report" under s. 107(7), the defendant submits that he had provided Officer Eustace full and complete access to the electronic log book that had been mounted in the cab of the commercial truck, which is where an operator or driver can record the daily pre-trip inspection report in electronic form. As such, the defendant contends that he did not "fail to surrender" the daily inspection report to Officer Eustace.

[9] Ergo, the key issues that need to be resolved in this trial include whether the defendant had been "driving on a highway" for the purposes of s. 78.1(1) of the HTA when the commercial truck that the defendant had been operating had been stopped on a highway for a red traffic light, while allegedly using and holding a hand-held communication device; whether the prosecution has established that the defendant was indeed holding a hand-held communication device beyond a reasonable doubt, since Officer Eustace did not provide a description of the device allegedly being held by the defendant; and whether the defendant had contravened s. 107(7) of the HTA for "failing to surrender completed daily inspection report", when the defendant had in fact allowed the MTO enforcement officer full and complete access to the electronic log book mounted in the cab of the commercial transport truck.

[10] In regards to the first question, considering that no evidence had been adduced that the defendant's commercial truck had been put lawfully parked or off the roadway, or that the defendant had put the truck into the "park mode" while stopped for the red traffic light; and in light of the credible evidence of Officer Eustace that he had observed the driver of the commercial transport truck holding, gazing at, and typing on a hand-held communication device described as a "phone" while on Dixie Road, after it had come to a stop for the red traffic light, then R. v. McConnell is distinguishable from the case at bar. The McConnell case is not applicable because the motorist in McConnell had only picked up his cellphone after he had put his motor vehicle into the "park mode" after it had come to a stop for a red light, unlike the present case where there is no evidence that the defendant had put his transport truck into the "park mode" after it had come to a stop for the red traffic light before he had picked up the hand-held communication device.

[11] On the other hand, Officer Eustace had observed the commercial truck that was being operated by the defendant still being in motion on Dixie Road just before it had come to a stop for the red traffic light. But most importantly, for the particular circumstance where the defendant's commercial transport truck had been stopped at a red traffic light, but not lawfully parked or off the roadway, nor had the truck been put into the "park mode" by the defendant, then being stopped for a red light in these particular circumstances would nevertheless constitute the act of "driving on a highway" within the meaning of s. 78.1(1) of the HTA, when that provision is properly interpreted broadly in the appropriate context and in accordance with the purpose of the HTA. See especially the Court of Appeal's reasoning in York (Regional Municipality) v. Tassone, 2007 ONCA 215, [2007] O.J. No. 1109 (O.C.A.) in which it had been held that being stopped for a red light was still the act of driving on a highway for the purposes of the requirement to wear a seatbelt under s. 106(2) of the HTA, even if the vehicle is put into the park mode while it is stopped for the red light.

[12] For the second question, because there was a hand-held communication device that had been observed by Officer Eustace in the centre console and which had been within reach of the defendant; and because the nature of the other two electronic devices, which were the electronic log book that had been mounted on the dashboard in the cab as legally required and the hands-free device which was not observed by Officer Eustace being worn on the defendant's clothing or worn on the defendant's head or ear as legally required, in conjunction with the lack of evidence that these two other devices could be used as hand-held communication devices that could be held and typed on; and in light of Officer Eustace's observation of the defendant holding a device in his left hand and typing on it with his right hand and then gazing at the device, which are actions that would normally be associated with someone holding and using a hand-held communication device, then it is reasonable to infer that the defendant had been holding and using the hand-held communication device, referred to as a "phone", that had been observed by Officer Eustace in the centre console. Ergo, as there is no contrary evidence that the device that the defendant was holding and typing on was not a hand-held communication device, then the prosecution has proven beyond a reasonable doubt that the defendant had been holding a hand-held communication device while operating the commercial transport truck.

[13] Consequently, as Officer Eustace's testimony has not been undermined during cross-examination nor contradicted, then based on Officer Eustace's credible testimony the prosecution has proven beyond a reasonable doubt that the defendant has committed the actus reus of the offence for the charge of "drive with hand-held communication device" under s. 78.1(1) of the HTA.

[14] As for the third question, the legal obligation on the driver of a commercial motor vehicle to surrender a completed daily pre-trip inspection report upon demand to an enforcement officer necessitates that the report be completed with the required statutory information that is listed in s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07. In other words, the defendant did not fulfill the requirements under s. 107(7) of the HTA by simply providing Officer Eustace full and complete access to the electronic log book mounted in the cab of the commercial truck. Subsection 107(7) obliges the defendant to surrender upon demand a completed pre-trip inspection report with the required statutory information either in paper or electronic from. And, as there is no evidence that a pre-trip inspection report with the statutorily-required information either in documentary or electronic form had been provided to Officer Eustace by the defendant upon Officer Eustace's demand for such a pre-trip inspection report, then the prosecution has proven that the defendant has committed the actus reus of the offence of "fail to surrender completed daily inspection report" beyond a reasonable doubt.

[15] Furthermore, as the defence of due diligence has not been established by the defendant on a balance of probabilities for either of the HTA charges, in order for the defendant to avoid being convicted of committing either of the two offences, then the prosecution has proven beyond a reasonable doubt that the defendant is guilty of committing the offence of "drive with hand-held communication device", contrary to s. 78.1(1) and the offence of "fail to surrender completed daily inspection report", contrary to s. 107(7).

[16] In addition, the trial of these two HTA charges had been held on May 23, 2017. After final submissions were made by the prosecution and the defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment being released as of September 27, 2017:

2. BACKGROUND

[17] Only one witness testified in the trial, which had been MTO Officer Eustace, the enforcement official from the Ministry of Transportation, who had charged the defendant with committing the two HTA offences.

[18] In his testimony, MTO Officer Eustace said that on August 16, 2016, at 2:59 p.m., in the City of Mississauga, he had been operating an MTO marked cruiser, which is a Chevrolet Lumina passenger motor vehicle that is of standard height. He also said he had been travelling southbound on Dixie Road in lane #1, which he said is the far left lane. He then said that he had to stop for a red traffic light at Midway Boulevard. While stopped at the red light, MTO Officer Eustace said he had observed a commercial transport truck without a trailer "in motion" southbound on Dixie Road with one male occupant, the driver. He said that the commercial transport truck had pulled into lane #3, which had been two lanes to his right, and then come to a stop for the same red traffic light that he had been stopped for. Officer Eustace also said that there had been no motor vehicle that had been between his own cruiser and the commercial truck in lane #3 that would have been large enough to obstruct or block his view of the driver in the cab of the commercial transport truck situated in lane #3.

[19] As it relates to the two charges, Officer Eustace testified he had observed the male driver's left hand come above the window frame holding a "communication device" in that left hand, which was slightly above the height of the lowered window. In addition, Officer Eustace said that he had also observed the driver typing into the device with his right hand and that the driver's eyes were looking down toward the device. Officer Eustace then said that the driver stopped typing, looked at the device, and then began typing some more on the device with his right hand. Then, Officer Eustace said that he had observed the driver of the commercial truck look over to his left and at Officer Eustace. Officer Eustace then said he had observed the driver's eye brows rise up with what appeared to be a look of shock on the driver's face, which was then followed with the driver's hands coming up to his head. Officer Eustace also said that he then observed the "phone" and the driver's hand go below the window frame. Officer Eustace then said the traffic light turned green, at which point he then pulled the commercial truck over, just south of Midway Boulevard.

[20] After the commercial truck had pulled over, Officer Eustace said he then approached the driver of that truck and demanded documents from the driver. Officer Eustace then said that the driver produced to Officer Eustace a photo driver's licence in the name of Kirubakaran Balasubramaniam. Officer Eustace also said that he had been satisfied that the driver was the person that had been named on the driver's licence.

[21] Furthermore, Officer Eustace said that while the transport truck had been stopped for the red light, he had made his observations of the driver holding and using a "hand-held communication device" through the passenger-side window of his MTO marked cruiser and up into the cab of the truck.

[22] In addition, Officer Eustace admitted in cross-examination that he did not have in his notes a description of the device that the driver had been holding, a description of the hands-free device, nor a description of the electronic log book device that were seen by Officer Eustace in the cab of the commercial truck. However, enforcement officers are not required to record everything they did or observe in their notebooks to comply with the Crown's disclosure obligation: R. v. Zack, [1999] O.J. No. 5747 (O.C.J.). Moreover, evidence that a specific event or observation had not been recorded by an enforcement officer in their notes does not mean that the event or observation did not occur. However, the significance of an omission of an event or observation in an enforcement officer's notebook must be determined by the trier of fact on a case by case basis: R. v. Steenson, [2015] O.J. No. 1717 (S.C.J.O.).

[23] On the other hand, Officer Eustace did testify that he had observed a hand-held communication device in the centre console and mid-area of the cab, which had been within the reach of the driver. Officer Eustace also said there had been a hands-free device available in the cab of the commercial transport truck, but that it was not being used by the driver, as he does not recall seeing the driver wear the hands-free device. In addition, Officer Eustace said that he does not recall the type of hands-free device that it had been. However, Officer Eustace did say that there had been a hands-free device connected by Bluetooth to the truck, as he said he had actually heard a phone call being broadcast through the truck's speakers when he had been talking to the driver.

[24] Furthermore, Officer Eustace said that he had asked the driver for the trip inspection or circle check document, but the driver did not surrender to Officer Eustace any pre-trip inspection report in paper form. Moreover, at that time Officer Eustace said that there had been no discussion between himself and the driver about the driver having the required report in electronic form. Officer Eustace also said that he had then left the presence of the driver and that when Officer Eustace had returned 15 to 20 minutes later, at approximately 3:30 p.m., Officer Eustace said there had still been no device nor any mechanical certificate for road testing provided to him that would have exempted the requirement for the defendant to give or provide the pre-trip inspection report to Officer Eustace.

[25] It was, however, upon his return that Officer Eustace said he and the driver, Kirubakaran Balasubramaniam, then had a discussion about the existence of an electronic inspection report. Officer Eustace then said that the driver had allowed him to have full and complete access to the dash-mounted electronic log book in the cab of the truck, which is an electronic device capable of inputting and recording inspection reports. However, Officer Eustace said that the information for the pre-trip inspection report had not been contained in one general area of the electronic log book and that the inspection report had been missing information. Moreover, Officer Eustace said he had searched for the inspection report by scrolling and navigating through the menus and electronic pages of the electronic log book while in the presence of the defendant, to see if the information had been actually missing and not just hidden in the menus. In addition, Officer Eustace admitted that unlike other officers who are uncomfortable with using the electronic log book, he had not been uncomfortable with this new technology. In fact, Officer Eustace said that he is one of the trainers on how to use the electronic log book. In addition, Officer Eustace said that even though he had been able to find some of the required information for the pre-trip inspection, he did not find all of the required information in the electronic log book. Officer Eustace also said that the required information is listed in Regulation 199/07 and that the electronic information has to comply with the data requirements of the Regulation besides just the signature requirement. Furthermore, Officer Eustace said he did find some of the required information such as name and vehicle identification, but did not find or obtain the necessary information for the mileage of the commercial motor vehicle, the inspection location, or the statement that the motor vehicle had been inspected according to the regulations, which are standard items required for of a pre-trip inspection report. Moreover, Officer Eustace said that at one point or another, both of them had actually scrolled through the menus of the electronic log book, but that the driver had been unable to turn up any menu or screen on the electronic log book which had contained the required information for the pre-trip inspection report.

3. THE CHARGES

[26] The defendant has been charged under two Part I Certificates of Offence (#8338526B and #8338527B) that were issued on August 16, 2016, for committing the following two offences:

Charge (1) #8338526B:

Kirubakaran Balasubramaniam, of [residential address removed for privacy], Toronto, Ontario,

On the day of 2016 – 08 –16 1459 P.M.

At Dixie Road SB @ Midway Blvd

City of Mississauga PEEL

Did commit the offence of: Drive – Hand Held Communication Device

Contrary to Highway Traffic Act, Sect. 78.1(1)

Charge (2) #8338527B:

Kirubakaran Balasubramaniam, of [residential address removed for privacy], Toronto, Ontario,

On the day of 2016 – 08 –16 1459 P.M.

At Dixie Road SB @ Midway Blvd

City of Mississauga PEEL

Did commit the offence of: Fail To Surrender Completed Daily Inspection Report

Contrary to Highway Traffic Act, Sect. 107(7)

4. ISSUES

[27] In order to determine if the defendant has committed the two HTA offences beyond a reasonable doubt, the following issues need to be resolved in this trial:

(A) For the "drive with hand-held communication device" charge:

(1) Has the prosecution proven that the defendant had committed the actus reus of the "drive with hand-held communication device" offence beyond a reasonable doubt?

(2) Has the prosecution proven that the defendant was holding or using a hand-held communication device since the MTO enforcement officer did not provide a description of the device that the defendant had been allegedly holding, especially considering that there is evidence that there were three electronic devices in the cab of the commercial truck at the time in question?

(3) Is being stopped at a red light on Dixie Road the act of "driving on a highway" within the meaning of s. 78.1(1) of the Highway Traffic Act?

(4) If the prosecution has proven the actus reus of the offence for the charge of "drive with hand-held communication device" beyond a reasonable doubt, then has the defendant made out a due diligence defence on a balance of probabilities, so that the defendant would not be convicted of committing that offence?

(B) For the "fail to surrender completed daily inspection report" charge:

(5) Has the prosecution proven that the defendant had committed the actus reus of the "fail to surrender completed daily inspection report" offence beyond a reasonable doubt?

(6) Did the defendant fail to surrender the daily pre-trip inspection report within the meaning of s. 107(7) of the HTA when he had actually allowed MTO Officer Eustace full and complete access to the electronic log book device mounted on the dashboard in the cab of the commercial transport truck?

(7) Does the short-form wording of an offence set out in the Certificate of Offence dictate what are the elements of the offence that are required to be proven by the prosecution?

(8) Was the statutorily-required information for a pre-trip inspection report contained or provided in the electronic logbook device?

(9) If the prosecution has proven the actus reus of the offence for the charge of "fail to surrender completed daily inspection report" beyond a reasonable doubt, then has the defendant made out a due diligence defence on a balance of probabilities, so that the defendant would not be convicted of committing that offence?

5. ANALYSIS AND DECISION

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Is Guilty Of Committing The Offence Of "Drive With Hand-Held Communication Device"?

[28] For a motorist to be guilty of committing the offence of "drive with hand-held communication device" under s. 78.1(1) of the HTA, the prosecution has to prove beyond a reasonable doubt that the motorist was either holding or using a hand-held communication device and that the motorist had been driving a motor vehicle on a highway within the meaning of the HTA while he had been doing the prohibited act.

[29] However, the defendant argues that the prosecution has not met their burden in proving that the defendant had been actually holding a hand-held communication device or that he had been actually "driving on a highway" while he had been stopped for a red traffic light, and as such, contends that the prosecution has failed to prove he had contravened s. 78.1(1) of the HTA. First of all, to support his argument that the prosecution has not proven he had been in the act of driving when supposedly holding a hand-held communication device, the defendant contends that R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), governs the present case and supports his contention that it is not unlawful to hold or use a hand-held communication device while being in the driver's seat of a motor vehicle that is stopped on a highway for a red traffic light. Secondly, the defendant argues that the prosecution has failed to prove beyond a reasonable doubt that he had been holding or using a hand-held communication device, since Officer Eustace did not give a description of the actual device that the defendant had been supposedly holding, and because there is evidence that there were three electronic devices in the cab of the commercial transport truck which were not all hand-held communication devices. As a result, the defendant submits there is reasonable doubt that the device that Officer Eustace had observed the defendant holding had been a hand-held communication device, as it could have been one of the devices that is not a mobile communication device.

[30] Ergo, the key issues in determining whether the defendant has committed the offence of drive with a hand-held communication device are first whether the defendant had been "driving on a highway" within the meaning of s. 78.1(1) of the HTA, while the commercial transport truck he had been operating had been stopped for a red traffic light at the intersection of Dixie Road and Midway Boulevard in the City of Brampton. And, second, whether the prosecution has proven beyond a reasonable doubt that the device, which the defendant had been observed holding or using by Officer Eustace, had been a hand-held communication device.

(1) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence For The Charge Of "Drive With A Hand-Held Communication Device"?

[31] The offence of "drive with hand-held communication device" is set out in subsection 78.1(1) of the HTA. That provision makes it an offence for a motorist to 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, unless the motorist falls within an exemption provided in s. 78.1 or in the Display Screens and Hand-Held Devices Regulation, O. Reg. 366/09:

Hand-held devices prohibited

Wireless communication devices

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.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle.

Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode.

Exceptions

(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

The motor vehicle is off the roadway or is lawfully parked on the roadway.
The motor vehicle is not in motion.
The motor vehicle is not impeding traffic.

Penalty

(6.1) Every person who contravenes this section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000. 2015, c. 14, s. 23.

Regulations

(7) The Minister may make regulations,

(a) prescribing devices for the purpose of subsections (1) and (2);

(b) prescribing persons, classes of persons, devices, activities, conditions and circumstances for the purpose of subsection (4).

Definition

(8) In this section,

"motor vehicle" includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road-building machine.

(a) Was The Defendant Holding Or Using A Hand-Held Communication Device, Considering That There Is Evidence That There Were 3 Electronic Devices In The Cab Of The Truck?

[32] The defendant argues that there is no evidence that the defendant had been holding or using a hand-held communication device as Officer Eustace had failed to describe the device with any particularity that the defendant had been supposedly holding or using. And, because there is evidence of three electronic devices in the cab which were not all hand-held communication devices then the defendant contends that Officer Eustace could have seen the defendant holding a device that was not a hand-held communication device.

[33] However, the prosecution submits that Officer Eustace had testified to observing the defendant holding an electronic device in his left hand while he was typing with his right hand on the device and then to gaze at the device, which they submit is evidence that the defendant was using a hand-held communication device. In addition, Officer Eustace had testified that he had observed a hand-held communication defence, which Officer Eustace had described as a "phone", first in the defendant's left hand and then in the centre console and mid-area of the cab of the transport truck, which Officer Eustace said had been within the reach of the driver of the commercial transport truck.

[34] Furthermore, "typing on a device" and "gazing at the device after typing on the device" are normally actions associated with communicating with a hand-held wireless communication device. And, in this case, it would be a reasonable inference that the defendant has been holding and typing on a hand-held-communication device when he had been observed typing with his right hand on a device that he had been holding in his left hand, as there is no evidence to contradict that inference.

[35] Moreover, for those three electronic devices which Officer Eustace said he had either observed in the cab of the truck during the traffic stop or had been aware of its existence, Officer Eustace testified he had observed a hand-held communication device he referred to as a "phone" in the centre console and an electronic log book mounted on the dashboard in the cab of the truck. In regards, to the existence of a hands-free device in the cab of the truck, Officer Eustace had testified that he did not recall seeing the defendant wearing a hands-free device, but said he was aware there was a hands-free device connected by Bluetooth to the truck because he said he had actually heard a phone call being broadcast through the truck's speakers when he had been talking to the driver.

[36] First of all, the defendant could not have been holding or typing onto the electronic log book, since Officer Eustace had observed the electronic log book mounted on the dashboard in the cab of the truck and also because Officer Eustace had observed the defendant holding the device in question in his left hand while typing onto the device with his right hand. Moreover, before the defendant could be exempted from using or touching the electronic log book it is legally required to be secured or mounted in the cab of the truck. As such, a device mounted on the dashboard could not have been the device that Officer Eustace had observed the driver of the transport truck holding in his left hand, gazing at the device, and typing on it with his right hand.

[37] Secondly, the defendant could not have been holding or typing onto the hands-free electronic device connected by Bluetooth to the truck, as Officer Eustace had testified that he did not recall observing the defendant wearing the hands-free electronic device, nor is there any no evidence that contradicts that testimony. Furthermore, the action of holding and typing on a hand-held device contradicts the notion of that device being "hands-free".

[38] And thirdly, Officer Eustace said he had observed the hand-held communication device he described as a "phone" in the centre console of the cab of the truck, which had been within the reach of the driver of the commercial truck and would logically be the only electronic device of the three electronic devices in the cab of the commercial transport truck that the defendant could have held in his left hand while typing onto the device with his right hand and then gazing at the device, which would also align with the function of and purpose of using a cellphone to receive or transmit telephone communications, electronic data, mail, or text messages.

(b) The prosecution is not required to provide a detailed description or distinguishing features of the impugned device in order to prove that the impugned device is a hand-held communication device.

[39] In R. v. Schull (2013), 44 M.V.R. (6th) 338 (B.C. Prov. Ct.), at paras. 29 to 31, Joseph-Tiwary J. had to consider an argument raised by the accused motorist that the prosecution had not proven the motorist had been actually holding a cellphone, since the police officer did not provide a detailed description or distinguishing features of the device that the police officer had observed the motorist supposedly holding up to their ear. In rejecting the motorist's argument, Joseph-Tiwary J. explained that requiring more evidence such as the make or particular motif on the phone would be somewhat impractical for roadside traffic stops, unless a more intrusive search of motorists' vehicles were to be undertaken in order to conduct a more thorough investigation into the type of device or its specific distinguishing features, which would then result in privacy incursions that are not normally envisaged in a traffic stop. On the other hand, Joseph-Tiwary J. had relied on circumstantial evidence, such as the police officer's observations of the device being held to the side of the driver's head as the driver was seen speaking, as compelling evidence that the driver was using the device in the like manner as a cellphone is used, to conclude that the device being held by the motorist was a cellphone even though the police officer did not provide a detailed description or distinguishing features of the device that was being held:

To have required more evidence such as a model number perhaps, or make or particular motif on the phone, or particular capabilities for instance, would have required a more involved investigation and possible detaining of the driver roadside once the vehicle stop was made to facilitate a physical examination which would be a search of a device within a vehicle where the driver has privacy interests or perhaps even a search of the vehicle in situations where the device has been placed out of sight.

The practical reality is that the electronic device prohibition provisions contained in the Motor Vehicle Act, that is, use while driving, are by the very nature of the offence enforced by way of traffic stops conducted roadside. A more thorough investigation into the type of device or specific distinguishing features will result in privacy incursions not normally envisaged in a traffic stop. It is somewhat a dubious notion to envisage that the lawmakers intended a search of the vehicle in which a cell phone is allegedly being used when an individual is seen speaking into a hand-held device while driving. There is also the issue of the practicalities of conducting prolonged investigations roadside every time a violator is stopped roadside.

Of some relevance is R. v. Gill, [2012] O.J. No. 2511 an Ontario appeal on use of a wireless device on the grounds that there was no proof beyond a reasonable doubt that a cell phone is a wireless communication device and where defence had argued that the device could have been a toy. The officer there had testified that he had seen the accused talking while holding what he said was a cell phone in his hand up to his ear and when stopped roadside, a flip phone was seen in the vehicle accessible to the driver. No distinguishing features of the device were presented. Justice E.A. Ready in finding the disputant guilty pointed out:

People do not normally talk to themselves with an object held to their ear. This would draw in this Court's estimation unwanted attention to the person by the police. Who wants to be doing that?

(c) The prosecution does not have to prove that the "phone" being held by the defendant is capable of receiving or transmitting telephone communications, electronic data, mail or text messages

[40] In R. v. Pizzurro (2013), 117 O.R. (3d) 779, 2013 ONCA 584 (O.C.A.), at paras. 9 to 14, Goudge J.A. writing for the Court of Appeal for Ontario held that the requirement under s. 78.1(1) of the HTA that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices, but not to cellphones as cellphones are well known as a kind of device that is capable of receiving or transmitting, so that no similar requirement is needed for them. Goudge J.A. also reasoned that to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution, so that the legislature could not have intended that result. In addition, Goudge J.A. concluded that the legislative purpose of s. 78.1(1) is that which had been described by the Court Of Appeal for Ontario in R. v. Kazemi (2013), 2013 ONCA 585, 117 O.R. (3d) 300, [2013] O.J. No. 4300, as ensuring road safety and driver attentiveness to driving. Moreover, Goudge J.A. explained that the road safety and driver attentiveness to driving purpose is best served by applying the requirement that the device be capable of receiving or transmitting only to "prescribed devices", but not to cellphones, and that these purposes are best achieved by entirely prohibiting a driver from holding or using a cellphone while driving:

In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices but not to cellphones. In its ordinary meaning, the wording of s. 78.1(1) provides that it is prescribed devices that must have that capability. This constitutes the legislature's direction to the minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. On the other hand, cellphones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them.

Moreover, to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution. The legislature could not have intended that result.

The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally at cellphones. Observing a driver holding or using a cellphone while driving would not be enough if this requirement existed. For each case, the police would also have to find ways to immediately acquire and test the cellphone in order to determine that it was capable of receiving or transmitting. I do not think that the legislature would have intended such a burden to be imposed by a section that is otherwise designed to operate in a simple and straightforward way.

It would also be unreasonable for prosecution. Where, for example, the charge is using a cellphone while driving, to require the Crown, once it has proven the use of a cellphone to communicate, to also prove that the cellphone that was being used to communicate is capable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden.

Finally, the legislative purpose of s. 78.1(1) must be considered. In [R. v. Kazemi [(2013), 117 O.R. (3d) 300, [2013] O.J. No. 4300, 2013 ONCA 585]](https://www.canlii.org/en/on/onca/doc/2013/2013onca585/2013onca585.html) (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cellphones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cellphone while driving. To hold out the possibility that the driver may escape the prohibition because the cellphone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

For these reasons, I conclude that s. 78.1(1) of the HTA does not require that the cellphone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

[41] Ergo, the actions of the defendant holding the device in his left hand and typing on the device with his right hand and then gazing at the device are actions synonymous with someone using a hand-held communication device, such as a cellphone, which such device had been observed by Officer Eustace in the centre console of the cab of the commercial truck during the traffic stop. This "phone" in the centre console would have been within the reach of the driver. The other two electronic devices, being the electronic logbook that was mounted on the dashboard in the cab of the truck and the hands-free device that could be used in conjunction with the hand-held communication device, could not have been mistaken by Officer Eustace as a hand-held communication device. As a result, the prosecution has proven beyond a reasonable doubt that the defendant had been using and holding a hand-held wireless communication device while in the driver's seat of the commercial truck while the truck was stopped for a red traffic light on Dixie Road on August 16, 2016.

(d) As The Defendant Was Observed Operating A Motor Vehicle On Dixie Road and Stopped At A Red Light, Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Had Been "Driving On A Highway" Within The Meaning Of S. 78.1(1) Of The HTA?

[42] The defendant argues that he had not been "driving on a highway", within the meaning of s. 78.1(1) of the HTA, while stopped for the red traffic light at Dixie Road and Midway Boulevard. And to support his argument, he relies on R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), where it had been decided that being stopped at a red light while the motor vehicle had been put into the "park" mode or gear did not constitute the act of "driving". However, in the case at bar, there is no evidence that the defendant had put the commercial transport truck into the park mode while he had been stopped at the red light. Therefore, just being stopped at a red light when the vehicle is not been placed in the park mode or gear does not necessarily mean the defendant was no longer engaged in driving the vehicle.

[43] Unfortunately, the term "driving" is not defined in the HTA or in the Display Screens and Hand-Held Devices Regulation, O. Reg. 366/09. As a consequence, it has to be determined whether R. v. McConnell does properly apply to the defendant's particular circumstances in order to decide whether the prosecution has proven beyond a reasonable doubt that the defendant had been "driving on a highway" within the meaning of s. 78.1 of the HTA, when he had stopped his commercial transport truck on Dixie Road for the red traffic light.

(i) The ruling in R. v. McConnell

[44] In the per incuriam decision of West J. in R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), at paras. 118 to 121, the convicted motorist McConnell had appealed his conviction of holding a cellphone while driving a motor vehicle on a highway and argued that since he had only actually began holding his cellphone after he had put his motor vehicle into the "park mode", after it had been stopped for a red traffic light, then he had not been engaged in the act of driving. West J. accepted the appellant's argument and held that the learned Justice of the Peace had erred in finding that the convicted motorist had been driving just because the appellant happen to be parked in a live lane. In addition, West J. held that since "driving on a highway" is an essential element of the offence, then the prosecution had not proven that the appellant had been driving his motor vehicle on a highway beyond a reasonable doubt, since it had been "parked and stopped at a red light". Furthermore, West J. had also noted in his decision that the learned Justice of the Peace had made reference to being aware of some caselaw on the issue of whether being stopped for a red light constituted driving on a highway, but had not actually cited the name of that case. On that point, West J. also commented in his decision that he had been unable to find any case on that legal point. On the other hand, West J., referred to the law for impaired driving offences and acknowledged that although the appellant was not driving the motor vehicle while it was parked and stopped at a red light, the appellant had been in "care or control of the motor vehicle", and that the appellant had only put the charger into the bottom of his cellphone while he had been stopped at the red light in a parked motor vehicle and that is all that the appellant had done with the cellphone:

There's no doubt that Mr. McConnell's device that he was plugging into the charger while his car was in park stopped at a red light, which there's no other evidence to cast any doubt on his evidence in respect to that. The officer had no independent recollection of anything that occurred in respect of this matter. Obviously his notes were not of the quality that they ought to have been because if his notes had indicated that he observed Mr. McConnell driving while he was holding onto the cell phone, when it appeared to be plugged into a charger, and if he had indicated that the cell phone was at his ear, I think that, even if it was past recollection recorded, that would be sufficient to support the charge.

But his evidence, at page 6, this is the officer in cross-examination, he did not recall whether, when he first saw Mr. McConnell with a cell phone -- with the cell phone, that Mr. McConnell was driving up to the light or physically stopped, he could not recall. And he could not recall if Mr. McConnell was talking on the cell phone. He could not recall how he saw Mr. McConnell on the phone. He couldn't recall if there were any vehicles in front of Mr. McConnell's vehicle and the stop sign. He couldn't recall the distance away from Mr. McConnell's vehicle when he made his observations. But most importantly he couldn't recall whether Mr. McConnell's vehicle was physically stopped.

The learned justice of the peace, I have great respect for, indicates that, in effect, she accepts Mr. McConnell's evidence that he was stopped, the car was in park. She found that he was still in the process of travel. She makes reference to being aware of some case law that I have been unable to find, and in my view, Mr. McConnell was not driving his vehicle. At most he was in care or control of it, stopped at a red light, and that he put the charger into the bottom of his phone while he was stopped and that's all he did with it. There are no findings of fact by the Justice of the Peace that are contrary to that.

REASONS FOR JUDGMENT

In all of the circumstances, in my view, the learned justice of the peace erred in finding that because he was parked in a live lane that that meant he was driving, and in my view that was an error. That was an essential element of the offence that was not proven by the prosecution beyond a reasonable doubt, and in my view, that should lead to an acquittal.

(ii) For "fail to wear seatbelt" charges in Ontario, the Court of Appeal for Ontario has held that being stopped at a red light is "driving on a highway".

[45] In York (Regional Municipality) v. Tassone, 2007 ONCA 215, [2007] O.J. No. 1109 (O.C.A.), the Court of Appeal for Ontario had to decide the meaning of the phase "drives on a highway" for a seatbelt charge under s. 106(3) [now s. 106(2)] of the HTA. The Court of Appeal held in Tassone at paras. 7 and 8 that it is important to take a broad purposive approach when interpreting the words "drives on a highway" in s. 106(3) [now s. 106(2)], especially because of the important statutory purpose of minimizing driver and passenger injuries resulting from car collisions. As such, the Court of Appeal viewed the words "drives on a highway" in that particular section did not render the seat belt requirement inapplicable to the situation of drivers waiting at red traffic lights. Moreover, the Court of Appeal noted that accidents can occur even when vehicles are stopped at traffic lights, and therefore, they held that s. 106(3) [now s. 106(2)] must be interpreted as requiring the driver to wear a seat belt continuously from the time they put the vehicle in motion on the highway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets out of the vehicle:

In our view, the provincial offences appeal judge erred in his interpretation of s. 106(3). When interpreting the words "drives on a highway" in that section, it is important to take the broad purposive approach adopted by several recent decisions of the Supreme Court of Canada from Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at p. 87:

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

Read in light of the important statutory purpose of minimizing driver and passenger injuries resulting from car collisions, the words "drives on a highway", in our view, do not render the seat belt requirement inapplicable to the situation of drivers waiting at red traffic lights. Such an interpretation would be inconsistent with the purpose of this statutory provision. Accidents occur even when vehicles are stopped at traffic lights. In our view, s. 106(3) must be interpreted as requiring the driver to wear a seat belt continuously from the time he or she puts the vehicle in motion on the highway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets out of the vehicle.

(iii) the R. v. McConnell case is distinguishable from the case at bar

[46] However, based on the factual circumstances in the case at bar, the case at bar is distinguishable from R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), as there is no evidence that the commercial transport truck had been put into the "park mode" by the defendant while it had been stopped for a red traffic light, unlike McConnell who had put in his motor vehicle in the "park mode" while stopped for the red traffic light before he had actually picked up and held his cellphone.

[47] But more significant, the Court of Appeal for Ontario in York (Regional Municipality) v. Tassone indicated that "parking a vehicle" in a position where it no longer constitutes driving on a highway is the situation where the vehicle can be left unattended or the driver gets out of the vehicle. This finding by the Court of Appeal in Tassone of what parking a motor vehicle would mean, so as not to constitute driving on a highway, would not include the situation where a motorist puts the motor vehicle into the "park mode" in a live lane of traffic while it is stopped for a red traffic light, and then stays in the vehicle at the red light.

[48] Ergo, when applying the Tassone reasoning on what parking entails to the case at bar, then it cannot be said that the defendant was no longer driving the vehicle as it had been decided by the court in R. v. McConnell, since the evidence in the case at bar does not show that the defendant's transport truck had been both "parked" and stopped for the red light.

(iv) Other courts in Ontario have held that a motorist that is stopped at a red traffic light has committed the offence of "drive with hand-held communication device" under s. 78.1(1) of The Highway Traffic Act

[49] Several courts have indeed found motorists that were holding or using a cellphone while they were stopped for a red light to be guilty of driving with a hand-held communication device. See R. v. Petrovic, [2012] O.J. No. 4185 (O.C.J.), per Dechert J.P.; R. v. Peuker, [2016] O.J. No. 7072 (O.C.J.), per Bonas J.P.; R. v. Russo, [2013] O.J. No. 3564 (O.C.J.), per Opalinski J.P.; R. v. Srecko, [2016] O.J. No. 4329 (O.C.J.), per Kowarsky J.P.

[50] Furthermore, the Court of Appeal for Ontario in R. v. Kazemi (2013), 2013 ONCA 585, 117 O.R. (3d) 300, [2013] O.J. No. 4300, had to consider the prosecution's appeal of a case where a motorist had been charged with driving while holding a hand-held wireless communication device under s. 78.1(1) of the HTA after a police officer had observed the motorist stopped at a stop light and holding a cellphone in her hand. At trial, the motorist had testified that her cellphone had been on the seat but had dropped to the floor of the car when she had braked, and that she had only picked up the cellphone after she got to the red light and that was when she said she had been observed holding a cellphone by the officer. The trial judge had found that she had been guilty of holding a hand-held wireless communication device in contravention of s. 78.1(1). However, the Provincial Offences Appeal Court overturned the conviction. And, although the Court of Appeal for Ontario subsequently restored the conviction and held that the motorist had indeed been holding a hand-held wireless communication device within the meaning of s. 78.1(1) when she had been stopped at a red light, the Court of Appeal in R. v. Kazemi did not address or decide the question of whether being stopped at a red light constitutes "driving on a highway" for the purposes of s. 78.1(1).

(v) How have other jurisdictions decided the issue of whether a motorist is "driving on a highway" when they are stopped at a red traffic light while using or holding a hand-held communication device?

[51] In R. v. Ryan, [2007] N.J. No. 338 (N.L. Prov. Ct.), at paras. 13 to 15, Gorman J. had noted that the word "driving" is not defined by Newfoundland and Labrador's Highway Traffic Act and that the term had been interpreted in other contexts, as not being as broad or as encompassing as such words as "care or control" or "operating":

Section 176.1(2) of the HTA states:

A person shall not use a hand-held cellular phone while driving a motor vehicle on a highway.

In R. v. McCarthy (2005), 27 M.V.R. (5th) 131, I considered section 176.1(2) of the HTA and concluded that "the word use was chosen by the drafters of the legislation to reflect a broad and encompassing prohibition on the use of a hand-held cellular phones for any purpose by a person driving a motor vehicle ... Any use which could constitute a distraction to the driving of a motor vehicle would be sufficient, even if the accused's driving was not actually distracted". In Aisthorpe, the Court of Appeal indicated that the "purpose of prohibiting cell phone use while driving is clear: to prevent drivers from being distracted while driving". It concluded that "the word "use" in section 176.1(2) "encompasses a variety of operations of a hand-held cellular telephone that could result in the driver being distracted".

In this case, Mr. Ryan concedes that he was using a hand-held cellular phone. The issue to be determined is was he "driving" a motor vehicle at the time? This requires an interpretation of the word driving in section 176.1(2) of the HTA. The word driving is not defined by the HTA and it has been interpreted, in other contexts, as not being as broad or as encompassing as such words as "care or control" or "operating" (see section 178(3) of the HTA, section 253 of the Criminal Code of Canada, R.S.C. 1985, Victoria U Drive Yourself Auto Livery v. Wood, [1930] 2 D.L.R. 811 (B.C.C.A.), R. v. Mitchelmore (1984), 27 M.V.R. 68 (N.L.C.A.) and R. v. Toews (1985), 21 C.C.C. (3d) 24 (S.C.C.)). 1 Having said this, what approach is to be taken to defining the word driving in the context of section 176.1(2) of the HTA?

[52] Furthermore, Gorman J. in R. v. Ryan, explained at paras. 18 to 26, that in the English case of R. v. MacDonagh, [1974] 1 All E.R. 257 (C.A.), Lord Widgery, C.J., for the Court of Appeal of England and Wales, had held at p. 258 that the word "drive" in its simplest meaning referred to a person using the driver's controls for the purpose of directing the movement of the vehicle. However, for the purposes of the Newfoundland and Labrador Highway Traffic Act, Gorman J. reasoned that the difficulty with the definition adopted in R. v. MacDonagh is that "movement" is not a necessary component of driving in the normal sense of that word, nor is movement contextually appropriate for that particular case that was before the Newfoundland and Labrador court. Moreover, in providing an example that driving a motor vehicle does not require movement, Gorman J. remarked that one would normally be considered to be driving a motor vehicle while stopped at a yield sign or while allowing a pedestrian to cross the street, though in both those instances the motor vehicle would not actually be moved. As such, Gorman J. concluded that since using a hand-held cellular phone in either instance of the motor vehicle being stopped or in motion would cause the same type of distraction to the driver, which the legislation attempted to prevent, so that any definition of "driving" that would require movement must logically be rejected:

Thus, the Court in determining the meaning of the word driving in the context of section 176.1(2) of the HTA must consider the manner in which the word driving is used in its normal and ordinary sense, but it must also consider its meaning in the context of the section and statute in issue and the Legislature's intent and purpose in prohibiting the use of hand-held cellular phones by anyone driving a motor vehicle. This point was made by the British Columbia Court of Appeal in R. v. Steeden (1995), 12 M.V.R. (3d) 303. In that case, the accused was charged with driving a motor vehicle without due care and attention, contrary to section 149(1)(a) of the Motor Vehicle Act, R.S.B.C. 1979 c. 288. An issue arose which required the Court of Appeal to interpret the word driving. The Court of Appeal described the task it faced in the following manner (at paragraph 8):

The scope of activity encompassed by the verb "to drive" will vary according to the context in which it is used. The task in this case is to find the "context" which the Legislature intended should govern the scope of that activity in s. 149 of the Motor Vehicle Act. In doing so, regard must be had for the ordinary meaning which usually attaches to the word, as well as for any special or unusual meaning that may emerge from a reading of the enactment and that may be necessary in order to give effect to the apparent purpose of the Legislature.

HOW HAS THE WORD DRIVING BEEN INTERPRETED IN THE CONTEXT OF OTHER STATUTORY PROVISIONS?

In R. v. MacDonagh, [1974] 1 All E.R. 257 (C.A.), it was held, at page 258, that in "its simplest meaning" the word drive "refers to a person using the driver's controls for the purpose of directing the movement of the vehicle ..."

In Steeden, the Court of Appeal adopted the following definition of the word "drive" from the Shorter Oxford English Dictionary (3d ed.), as being appropriate (at paragraph 9):

I begin by considering the meaning which ordinarily attaches to the verb "drive" when it is used in connection with motor vehicles. The Shorter Oxford English Dictionary (3d ed.) provides the following common usage definitions which seem applicable in the context of a statute designed to regulate the use of motor vehicles on public highways:

To urge onward and direct the course of (a vehicle or the animal which draws it, a railway train, etc.); ... To cause to move along;

After considering a number of authorities, the Court of Appeal adopted a definition for the word drive which involves both "movement and control":

It is my view, that when it is intended to describe conduct in relation to a motor vehicle, the ordinary meaning which attaches to the verb "drive" in the English language is one that combines the elements of movement and control; movement of the vehicle and control of that movement by the person said to be driving.

There is nothing about either the language or the apparent purpose of s. 149 to suggest that "drive" should be given any specialized or technical meaning in the application of that section. Indeed, its ordinary usage seems consistent with the context in which s. 149 finds itself in Part 3 of the Motor Vehicle Act which is devoted primarily, although not entirely, to the regulation of moving traffic through what might be called "rules of the road".

The difficulty with this definition is that movement is not a necessary component of driving in the normal sense of that word, nor is movement contextually appropriate in this particular case. One would, for instance, normally be considered to be driving a motor vehicle while stopped at a yield sign or while allowing a pedestrian to cross the street, though in both instances the motor vehicle is not being moved. Using a hand-held cellular phone in either instance would cause the type of distraction which the legislation attempts to prevent and thus, the Steeden definition must be rejected.

In R. v. Jacobs (1955), 113 C.C.C. 73 (B.C.C.A.), the accused was charged with unlawfully driving a motor vehicle on a highway, without due care and attention, contrary to section 57 of the Motor-Vehicle Act, R.S.B.C. 1948, c. 227. The circumstances which led to the conviction were that the appellant drove his automobile on to the wrong side of the fairly busy Dewdney Trunk Road on a dark night, and stopped the car momentarily opposite some letter boxes in order to extract his mail. He left his lights on and his engine running; he did not get out of his car. The stopping-place was 500 ft. east of a brow of a hill. One George Lank, proceeding east on his right-hand side of the Dewdney Trunk Road, on coming over the brow of the hill saw the appellant's lights ahead of him and drove to pass him on the right. He realized too late that appellant was stationary on the wrong side of the road. He collided with the mail boxes and the left rear side of appellant's car.

The accused in Jacobs argued that because his car was stopped, he could not be found guilty of "driving". The British Court of Appeal rejected this proposition and concluded that "a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose":

The relevant part of the manoeuvre referred to was bringing the automobile to a stop in that place under those conditions. The operation of bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it. Therefore the findings of fact constitute an offence under the section.

While it is not essential to our decision, we add, in deference to the argument of appellant's counsel, that a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose, e.g., in order to see if he can turn around in safety. Being stopped under such circumstances is an incident in the operation of the automobile which may be fairly described as driving it.

By a fair extension of this reasoning we think the appellant was driving the automobile while it was stopped under the circumstances of this case for a momentary purpose, the appellant being in control of and in the automobile with its machinery operating. It is not necessary to decide under what circumstances the appellant would have ceased to be driving the car.

A similar approach was taken Pinner v. Everett, [1969] 2 All E.R. 257 (H.L.), in which Lord Reid concluded that the term driving "cannot be limited to periods in which the car is in motion" (at page 259):

I must consider in what circumstances a person can, by the ordinary usage of the English language, properly to be said to be driving a car. Clearly the term cannot be limited to periods in which the car is in motion. Suppose the car is held up in a traffic jam and is stationary for five or ten minutes. No one would say that the driver is not driving the car during that period. He may have switched off the engine and be reading a book or a map; or he may have got out to clean his windscreen; and I do not think it would make any difference if he got out to buy a newspaper from a newsvendor on the pavement or to go shopping. I do not think it could be said he is driving the car while he is buying groceries. And I do not think that it would make any difference if he remained in the car while his passenger was doing the shopping; he would then not be driving but waiting for his passenger.

In R. v. Toussaint (1984), 59 N.B.R. (2d) 361 (Q.B.), it was also held that if "an automobile which is being driven stops momentarily, for example at a stop sign or at an intersection while waiting for oncoming traffic to give an opportunity to make a left turn, that is a situation which is part of what we mean when we speak about driving. The vehicle still maintains its capacity to continue on its way once the reason for its temporary stop no longer exists. The motor vehicle is still capable of moving and of continuing on its way after the interruption of movement".

[53] Moreover, in R. v. Ryan, at paras. 27 to 28, Gorman J. had held that in interpreting the meaning of s. 176.1(2) of the Newfoundland and Labrador Highway Traffic Act in regards to the legislative purpose for prohibiting motorists from driving while holding or using a cellphone, did not require that the vehicle be in motion to constitute the act of driving. Accordingly, Gorman J. concluded that a vehicle stopped at a traffic light is still being driven by its operator, even if it has temporarily stopped. Moreover, Gorman J. also reasoned that it does not matter if the vehicle is in "park" or "drive" at the time, as in either case the danger of distraction from proper driving, which is the purpose of the provision, is still present during the temporary nature of the stop. As a result, Gorman J. held that using a hand-held cellular phone while stopped at a traffic light constitutes a breach of section 176.1(2) of the Newfoundland and Labrador Highway Traffic Act because it involves an act which falls within the meaning of the word "driving" in the context of that section:

I conclude that for the purpose of section 176.1(2) of the HTA, driving does not require that the vehicle be in motion. A vehicle stopped at a traffic light is still being driven by its operator, even if it has temporarily stopped. Whether the vehicle is in park or drive at the time is of no matter for the purpose of section 176.1(2), as in either case the danger of distraction from proper driving, which is the purpose of the provision, is present because of the temporary nature of the stop. It will have to be left for another day to determine if pulling off to the side of the road or into a parking lot for the purpose of answering a hand-held cellular would violate section 176.1(2) of the HTA, though in those instances, the word "parked" might constitute a more accurate description of what is occurring than the word driving. In this case, one could not fairly describe Mr. Ryan as being parked at the traffic light when he used his hand-held cellular phone.

It is not necessary nor desirable in this case to attempt to formulate an exhaustive definition of the word driving in the context of section 176.1(2) of the HTA. It is sufficient for the purposes of this case to indicate that I have concluded that using a hand-held cellular phone while stopped at a traffic light constitutes a breach of section 176.1(2) of the HTA because it involves an act which falls within the meaning of the word driving in the context of that section. I have concluded that the drawing of a distinction between using a hand-held cellular phone, while temporary stopped in a motor vehicle in order to comply with the HTA and stopping a motor vehicle in an area outside of the normal flow of traffic, in order to use a hand-held cellular phone, constitutes the drawing of a distinction which is consistent with the Legislature's intent.

[54] Also, in R. v. Jacobs, [1955] B.C.J. No. 95 (B.C.C.A.), at paras. 6 to 8, the British Columbia Court of Appeal had held that the operation of bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it, and as such, a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose:

The relevant part of the manoeuvre referred to was bringing the automobile to a stop in that place under those conditions. The operation of bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it. Therefore the findings of fact constitute an offence under the section.

While it is not essential to our decision, we add, in deference to the argument of appellant's counsel, that a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose, e.g., in order to see if he can turn around in safety. Being stopped under such circumstances is an incident in the operation of the automobile which may be fairly described as driving it.

By a fair extension of this reasoning we think the appellant was driving the automobile while it was stopped under the circumstances of this case for a momentary purpose, the appellant being in control of and in the automobile with its machinery operating. It is not necessary to decide under what circumstances the appellant would have ceased to be driving the car.

[55] In addition, in Montreal (City of) v. Cardinal, 2013 QCCM 82, at paras. 10 to 12, Mandeville J.C.M.M had decided that one cannot equate the state in which a motorist who chooses to immobilize his vehicle on the edge of the roadway, in order to park it, with the situation in which a motorist stands momentarily facing a red light, while waiting for a green light. Mandeville J.C.M.M noted that in the first case, the motorist withdraws from the traffic, while in the second case, the motorist is still actively part of it. In this context, Mandeville J.C.M.M held that it remains just as important for a driver who is stopped momentarily at a red light to remain vigilant and not to be distracted by the use of a cell phone because he is still actively driving:

Avec respect pour l'opinion contraire, on ne peut assimiler l'état dans lequel se trouve un automobiliste qui choisit d'immobiliser son véhicule sur le bord de la chaussée, afin de le stationner, avec la situation dans laquelle se trouve le conducteur qui s'immobilise momentanément face à un feu rouge, en attente d'un feu vert. Dans le premier cas, l'automobiliste se retire de la circulation. Dans le deuxième cas, il en fait toujours partie, de manière active.

La Cour supérieure du Québec a précisé dans l'affaire Mérineau c. Ville de Longueuil, [2011] J.Q. no 7094, que le but recherché par l'adoption de l'art. 439.1 "est de contrer les distractions lors de la conduite d'un véhicule" (par. 19).

Peut-on douter, dans ce contexte, de l'importance pour le conducteur immobilisé à un feu rouge de demeurer vigilant et de ne pas être distrait, précisément, par l'usage d'un téléphone cellulaire? Pour ma part, je n'ai aucun doute à ce sujet.

[56] And, in Montréal (Ville de) c. Njanda, [2015] J.Q. no 799 (Cour municipale de Montréal (Québec)), at paras. 17 and 18, Richmond J.C.M.M. held that motorists must be attentive to everything around them when they are stopped in front of a red light to avoid being the cause of a "rear-ender" accident with a vehicle moving behind them and whose driver would believe that the vehicle in front of him or her would advance forward once the traffic light turns green. Secondly, Richmond J.C.M.M. noted that in s. 396 of the C. S. R., the Quebec Legislature had imposed the rule that while a person "drives" a road vehicle they are obligated to wear a seat belt in a "moving" road vehicle. Therefore, Richmond J.C.M.M reasoned that if the Quebec Legislature had wished to limit the ban on using cell phones to only cases where the vehicle is in motion, it could very well have drafted s. 439.1 in the same manner as it did with s. 396:

Premièrement, le conducteur doit être attentif à tout ce qui l'entoure lorsqu'il est immobilisé devant un feu rouge pour éviter d'être la cause d'un accident avec un véhicule en mouvement derrière lui et dont le conducteur croit, en raison d'un feu de signalisation devenu vert, que le véhicule devant lui est en train d'avancer. Ce genre d'accident est connu en anglais par le terme "rear-ender".

Deuxièmement, il faut remarquer que dans l'art. 439.1 C.S.R., le législateur a imposé la règle pendant qu'une personne "conduit" un véhicule routier, contrairement à l'art. 396, où il a imposé l'obligation de porter la ceinture de sécurité dans un véhicule routier "en mouvement". Si l'Assemblée nationale avait voulu limiter l'interdiction d'utiliser un téléphone cellulaire aux cas où le véhicule est en mouvement, elle aurait très bien pu rédiger l'art. 439.1 de la même manière que l'art. 396.

[57] But more significantly, Richmond J.C.M.M. in Montréal (Ville de) c. Njanda, at paras. 22 and 24, had actually referred to the reasoning of the Court of Appeal for Ontario in York (Regional Municipality) v. Tassone, 2007 ONCA 215, [2007] O.J. No. 1109, that being stopped for a red traffic light still constituted driving on a highway for the requirement to wear a seatbelt because accidents occur even when vehicles are stopped at traffic lights, before ultimately concluding that the offense under s. 439.1 C.S.R. of driving while holding or using a cellphone may be committed when the defendant's vehicle is immobilized in front of a traffic light:

Dans York (Regional Municipality) v. Tassone, 2007 ONCA 215, la Cour d'appel de l'Ontario a décidé que la "conduite" sur une route inclut le moment où le véhicule est immobilisé devant un feu rouge parce que "accidents occur even when vehicles are stopped at traffic lights." Il s'agissait, cependant, d'une cause concernant le port de la ceinture de sécurité.

Par conséquent, le Tribunal conclut que l'infraction prévue à l'art. 439.1 C.s.r. peut être commise lorsque le véhicule du défendeur est immobilisé devant un feu de circulation.

[58] Furthermore, in R. v. Crowdis, [1985] S.J. No. 273 (Sask. Q.B.), at paras. 3 to 7, Walker J. held that logically, a person who drives an automobile has care or control of it, and that driving, ordinarily, involves an element of control. Moreover, Walker J. noted that it is, ordinarily, impossible to drive an automobile without having care or control of it, although the converse is possible. Specifically, Walker J. explained that one can, ordinarily, be convicted of having care or control of an automobile if one is in fact the driver of it. However, Walker J. noted that care or control of a motor vehicle can exist whether the motor vehicle is in motion or not, and as such, Walker J. held that since the evidence indicates that the appellant had been driving the motor vehicle immediately before the appellant was stopped then this evidence would be admissible to show that the appellant had care and control of the automobile:

Regina v. Faer, 26 C.C.C. (2d) 327, was cited by both the appellant and the respondent. At p. 32, Culliton, C.J.S., speaking for the Saskatchewan Court of Appeal, said:

There is, however, a conflict of judicial opinion as to whether or not the offence of having care or control is an included offence in that of driving ...

I think some confusion arises from the fact that the evidence of driving may be sufficient to prove either of the offences: see Regina v. Miller, [1953] O.W.N. 334 (C.A.), and Regina v. Lussier, (1973), 14 C.C.C. (2d) 32. This fact, however, does not mean that one offence includes the other.

After carefully reviewing the conflicting decisions, I must say, with respect, I prefer the reasoning in those judgments upon which it can be said that s. 236 creates two separate and distinct offences, neither of which is included in the other.

The appellant seized upon the reference in R. v. Faer, supra, to "two separate and distinct offences, neither of which is included in the other. He said that "evidence of prior driving can assist the Crown in proving 'care or control'". He said that "at a certain point 'driving' stops and 'care or control' commences". He said that "driving", as such, just supports the offence of "driving". He said he "did not cease to drive since he was stopped temporarily by the police and that he was still involved in an operation fairly described as driving". Finally, he said he was not charged with the correct offence, namely "driving" and was not properly convicted. If one is stopped, he said, by the police in the act of driving, as opposed, for example, to being stuck in a ditch, one may only be properly charged with "driving". The appellant says that without this interpretation R. v. Faer, supra, is without meaning. Finally, the appellant says, with R. v. Faer, supra, looked at in this sense, many decisions helpful to the Crown found in Martin's, 1984, pp. 241-242, from other jurisdictions, cannot properly be followed. The appellant also cites, in this area, Regina v. Jacobs, 22 C.R. 154 (B.C.C.A.), for the proposition that one does not cease to drive a motor vehicle merely because one stops temporarily for some momentary purpose, such being stopped under such circumstances being an incident in the operation of a motor vehicle which may be fairly described as driving it.

I have found R. v. Jacobs, supra, not to be of assistance to the appellant in light of the view I take of R. v. Faer, supra.

I have read R. v. Faer, supra, R. v. Lussier, supra, as cited in R. v. Faer, supra, R. v. Pielle, 18 M.V.R. 46 and R. v. Coultis, 66 C.C.C. (2d) 384. What Culliton, C.J.S., said in R. v. Faer, supra, with respect to s. 236 creating two separate and distinct offences neither of which is included in the other did not at all answer the present question. In light of the comments of Culliton, C.J.S., in R. v. Faer, supra, since "care or control" is not included in "driving", if the Crown charged "driving" and failed to prove "driving", it cannot resort to "care or control" as an included offence and ask conviction. On the other hand, Culliton, C.J.S., in R. v. Faer, supra, clearly stated that "the evidence of driving may be sufficient to prove either of the two offences ..." and clearly approved of R. v. Lussier, supra, and R. v. Miller, supra.

Logically, a person who drives an automobile has care or control of it. Driving, ordinarily, involves an element of control. It is, ordinarily, impossible to drive an automobile without having care or control of it, although the converse is possible. One can, ordinarily, be convicted of having care or control of an automobile if one is in fact the driver of it. Care or control can exist whether the motor vehicle is in motion or not. That the appellant was driving the motor vehicle immediately before he was stopped was admissible to show that he had care and control of the automobile. There is nothing in R. v. Faer, supra, to stand in the way of that conclusion. Indeed, there is everything in R. v. Faer, supra, to support that conclusion. The commission of the offence of "driving" necessarily entails the commission of another offence namely "care or control".

[59] Therefore, as courts in other jurisdictions in Canada and the Court of Appeal in York (Regional Municipality) v. Tassone, 2007 ONCA 215, [2007] O.J. No. 1109, have held, the term "driving", when broadly interpreted in conjunction with the purpose of the legislation and in regards to the context of the statutory wording set out in s. 78.1(1) of the HTA, would include being stopped temporarily on a highway for a red light when the vehicle is not in the park mode, and that drivers would face the same distraction while holding a cellphone whether the motor vehicle is in motion or stopped temporarily on a highway for a red light.

(vi) What is the legislative purpose behind the s. 78.1(1) ban against holding or using a hand-held communication device while driving on a highway?

[60] In R. v. Kazemi (2013), 117 O.R. (3d) 300, 2013 ONCA 585 (O.C.A.), at paras. 12 to 15, Goudge J.A., writing for the Court of Appeal for Ontario had held that road safety is best ensured by a complete prohibition on having a cell phone in one's hand while driving, since a complete prohibition would also best focus a driver's undivided attention on driving and eliminates any risk of the driver being distracted by the information on the cell phone. Moreover, Goudge J.A. also remarked that a complete prohibition on having a cell phone in one's hand while driving would remove any temptation to use the cell phone while driving and prevents any possibility of the cell phone physically interfering with the driver's ability to drive:

In my view, this interpretation of "holding" best ensures the attainment of the objective of the HTA, which is to protect those who use the roads of Ontario: see R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 33.

This interpretation also best serves the legislature's purpose in enacting the provision in which "holding" appears. Section 78.1(1) was added to the HTA with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4. On third reading, on April 22, 2009, the Minister of Transportation described the purpose of the amending legislation this way:

[O]ur eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cellphones 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, driver should focus on one thing and one thing only: driving.

See: Ontario, Legislative Assembly, Official Report of the Debates (Hansard), 39th Parl., 1st Sess., (22 April 2009) (Hon. James Bradley).

Road safety is best ensured by a complete prohibition on having a cell phone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cell phone. It removes any temptation to use the cell phone while driving. And it prevents any possibility of the cell phone physically interfering with the driver's ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cell phone in his or her hand while driving.

The interpretation of "holding" offered by the appeal judge requires that there be some sustained physical holding. Any holding for a shorter period of time, with the accompanying risks to road safety and driver attention, would be exempt from the prohibition. With respect, I do not think this accords with the ordinary meaning of the word. Nor does it properly reflect the object of the HTA or best achieve the legislature's purpose in enacting the section. Moreover, such an interpretation would leave the uncertainty of how long the physical holding must be sustained to be caught by the provision. It would create the enforcement challenge of requiring continued observation of the driver for that period of time if the prohibition is to be effective.

(vii) Conclusion on whether the defendant had been "driving on a highway" within the meaning of s. 178.1(1)?

[61] As there is no evidence that the defendant had put his commercial transport truck into the "park mode" while stopped at the red traffic light, and since the purpose behind the prohibition against driving while holding a hand-held communication device is for public safety by preventing drivers from being distracted by the information on their cellphones and other similar electronic devices, and as driving a motor vehicle would encompass being stopped temporarily on a highway, then being stopped temporarily for a red traffic light, when the vehicle has not been put into the park mode, would constitute driving on a highway within the meaning of s. 78.1(1) of the HTA.

(viii) Is there evidence that the defendant was using a hands-free device at the time?

[62] Furthermore, there is no evidence that the defendant had been using a hands-free device at the time in question so as to exempt the defendant under s. 78.1(3) of the HTA from the application of s. 78.1(1). Officer Eustace, on the other hand, had testified that even though there had been a hands-free device connected by Bluetooth to the truck, Officer Eustace said that the driver of the commercial transport truck had not been using the hands-free device nor did he recall seeing a hand-free device being worn by the driver.

(ix) Does the defendant fall within the exemptions set out in subsecs. 78.1(4), (5), or (6) of the HTA?

[63] Section 78.1 of the HTA also provides exemptions to the ban against holding or using a hand-held communication or prescribed device while driving a motor vehicle on a highway. However, s. 47(3) of the Provincial Offences Act, R.S.O. 1990, c. P.33, places the burden of proof on the defendant to prove on a balance of probabilities that the statutory exemption or exception operates in favour of the defendant:

Burden of proving exception, etc.

47(3) The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information.

[64] In respect to the exemptions HTA, a motorist may be exempt from the application of s. 78.1(1), if the motorist meets the criteria set out in s. 78.1(4) or (5) or (6):

Exceptions

78.1(4) Subsection (1) does not apply to,

(a) the driver of an ambulance, fire department vehicle or police department vehicle;

(b) any other prescribed person or class of persons;

(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances.

Same

78.1(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services.

Same

78.1(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

The motor vehicle is off the roadway or is lawfully parked on the roadway.
The motor vehicle is not in motion.
The motor vehicle is not impeding traffic.

[65] In respect to the exemption under s. 78.1(4), the defendant has to be either the driver of an ambulance, fire department vehicle or police department vehicle; or any other prescribed person or class of persons; or a person holding or using a device prescribed for the purpose of this subsection; or a person engaged in a prescribed activity or in prescribed conditions or circumstances. There is, however, no evidence that the defendant is a driver of a motor vehicle prescribed under s. 78.1(4) or a driver of a motor vehicle providing emergency services such as described in s. 78.1(4).

[66] And, in respect to the exemption under s. 78.1(5), the defendant would have to have been using a hand-held communication device to contact ambulance, police or fire department emergency services. However, there is no evidence that the defendant had been using the hand-held communication device to contact ambulance, police or fire department emergency services.

[67] Finally, in respect to the exemption under s. 78.1(6), three conditions are required to be met before the exemption would apply. Firstly, there is no evidence the commercial truck being driven by the defendant had been off the roadway or lawfully parked. Secondly, Officer Eustace had testified that when he had observed the defendant holding and typing on the hand-held communication device, the commercial truck being driven by the defendant had been still moving before it stopped for the red light. And thirdly, even though the defendant's commercial truck had been stopped for a red light, the truck had still stopped in a live lane of traffic and there is no evidence that the defendant's truck had not been impeding traffic.

[68] Hence, because there is no evidence that the defendant meets any of the criteria set out in ss. 78.1(4), (5), or (6) of the HTA, then the defendant had not been exempt from the application of s. 78.1(1) and would have been barred from holding or using a hand-held device while he had been driving the commercial truck on Dixie Road on August 16, 2016 at 2:59 p.m.

(x) Does the defendant fall within the exemptions set out in the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09?

[69] Similarly, under the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09, a motorist may view a display screen visible to the motorist if the motor vehicle being driven is a commercial motor vehicle or the motorist is engaged in performing their duties as courier delivery drivers, roadside assistance service drivers, or licensed taxicab or limousine drivers and the device being used is a properly secured or mounted device that is a mobile data terminal display or a device which displays information on the conditions, use, or immediate environment of the vehicle, or displays information of the road or weather conditions, or is an ignition interlock device, or is a car audio control that displays only text or static images, or a hand-held device that displays only text or static images and is connected directly into and operates using the audio system controls of the motor vehicle, under ss. 6, 7 and 8 of that Regulation:

Exemption for certain commercial activities

6(1) Drivers of commercial motor vehicles may drive a commercial motor vehicle on a highway with a mobile data terminal display screen in the vehicle visible to the driver.

(2) The following persons, while engaged in the performance of their duties, may drive a motor vehicle on a highway with a mobile data terminal display screen in the motor vehicle visible to the driver:

Drivers of motor vehicles clearly identified as courier delivery vehicles.
Drivers of roadside assistance service vehicles.
Drivers of taxicabs and limousines licensed by a municipality or airport authority to provide passenger service.

Exempt devices

7. The display screens of the following devices may be visible to any driver in a motor vehicle driven on a highway:

A device that displays, i. information on the conditions, use and immediate environment of the vehicle, or ii. information on road or weather conditions.
An ignition interlock device.
A car audio control that displays only text or static images.
A hand-held device that displays only text or static images and is connected directly into and operates using the audio system controls of the motor vehicle.

Requirement that display screens be secure

8. The exemptions in sections 2, 3, 4, 5, 6 and 7 apply only if the display screen of the computer, mobile data terminal or other device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion.

[70] In addition, there were time-limited or transition exemptions that expire on January 1, 2018, for certain commercial activities under ss. 12 of the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09, for which a motorist may be exempt from the application of s. 78.1, such as the circumstances where the device that the driver of a commercial motor vehicle is holding or using is a two-way radio, or the motorist is engaged in performing their duties as courier delivery drivers, roadside assistance service drivers, or licensed taxicab or limousine drivers, streetcar drivers, drivers of road building machines, or if the driver is using the commercial motor vehicle for personal purposes without compensation:

Time-limited exemption for certain commercial activities

12(1) Drivers of commercial motor vehicles may drive a commercial motor vehicle on a highway while holding or using a two-way radio.

(2) The following persons, while engaged in the performance of their duties, may drive a motor vehicle on a highway while holding or using a two-way radio:

Drivers of motor vehicles clearly identified as courier delivery vehicles.
Drivers of roadside assistance service vehicles.
Drivers of taxicabs and limousines licensed by a municipality or airport authority to provide passenger service.
Drivers of street cars.
Drivers of road-building machines.

(3) Subsection (1) does not apply if the driver is using the commercial motor vehicle for personal purposes without compensation.

(4) This section is revoked on January 1, 2018.

[71] Furthermore, there are exemptions for motorists to push buttons on devices under s. 14 of the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09, for which a motorist may be exempt from the application of s. 78.1, if the motorist is pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position or while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio or a hand microphone or portable radio:

Exemption for pressing buttons

14(1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position.

(2) A person may drive a motor vehicle on a highway while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio or a hand microphone or portable radio.

[72] However, there is no evidence that any of the exemptions listed in the HTA or the Regulations apply to the defendant so as to exempt the defendant from the application of s. 78.1(1) of the HTA.

[73] Specifically, in respect to the exemptions set out in the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09, there is no evidence that the defendant had been using a mobile data terminal display screen that is secured or mounted in the cab of the commercial truck, since holding or typing onto a hand-held communication device is evidence that the device had not been secured or mounted in the cab of the truck. Nor is there evidence that the defendant had been using a two-way radio at the time in question. Furthermore, there is no evidence that the defendant had only been touching buttons on a device that is worn on the defendant's head or ear or attached to his clothing that is connected to a hand-held communication device to answer or end a call, since holding and typing on a hand-held communication device does not fall within the exemption of touching buttons on an exempted device. In addition, there is no evidence that the defendant was working for a courier company or operating a taxi or limousine or operating a roadside assistance vehicle at the time in question.

[74] Hence, because there is no evidence that the defendant meets any of the exemptions set out in the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09, then the defendant had not been exempt from the application of s. 78.1(1) and would have been barred from holding or using a hand-held device while he had been driving the commercial truck on Dixie Road on August 16, 2016, at 2:59 p.m.

(xi) Conclusion on whether the prosecution has proven that the defendant had committed the actus reus of the offence for the charge of "drive with hand-held communication device" beyond a reasonable doubt?

[75] Officer Eustace had testified to observing the defendant holding a hand-held communication device, he referred to as a "phone" in the defendant's left hand and typing onto it with his right hand and then gazing at it while the commercial transport truck had been stopped for a red traffic light, southbound on Dixie Road at Midway Boulevard in the City of Brampton, which is the act of driving within the meaning of s. 78.1(1) of the HTA. Ergo, since Officer Eustace's observation is credible and has not been contradicted, then this evidence is proof beyond a reasonable doubt that the defendant had been driving on a highway while holding and using a hand-held communication device.

(2) Has The Defendant Established The Defence Of Due Diligence On A Balance Of Probabilities In Respect To The Charge Of "Driving With Hand-Held Communication Device"?

[76] In respect to the defence of due diligence for the defendant's charge of "drive with hand-held communication device", there is no evidence that the defendant has established on a balance of probabilities that he had believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he had taken all reasonable steps in the circumstances to avoid the particular event of holding and using a hand-held communication device while driving a motor vehicle on Dixie Road. Therefore, the prosecution has proven beyond a reasonable doubt that the defendant has committed the offence of "drive with hand-held communication device", contrary to s. 78.1(1) of the HTA.

(B) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Is Guilty Of Committing The Offence Of "Fail To Surrender Completed Daily Inspection Report" Contrary To S. 107(7) Of The HTA?

[77] The defendant's charge for "fail to surrender completed daily inspection report" is set out in s. 107(7) of the HTA. Under that provision, it is an offence for a driver of a commercial motor vehicle, upon the demand of a police officer or officer appointed for carrying out the provisions of the HTA, to fail to surrender the inspection schedule and reports forthwith that he or she is required to have in his or her possession under s. 107(6) of the HTA:

Driver to surrender reports

107(7) The driver of a commercial motor vehicle shall, upon the demand of a police officer or officer appointed for carrying out the provisions of this Act, forthwith surrender the inspection schedule and reports that he or she is required to have in his or her possession by subsection (6).

[78] Moreover, s. 107(6) provides that at all times while in control of a commercial motor vehicle on a highway, the driver of that vehicle shall have in his or her possession the daily inspection schedule for the commercial motor vehicle and for any vehicle drawn by the commercial motor vehicle, as well as the "completed" daily inspection reports and the under-vehicle inspections, if applicable, for the commercial motor vehicle and drawn vehicle:

Driver to carry inspection schedule, reports

107(6) At all times while in control of a commercial motor vehicle on a highway, the driver of the vehicle shall have in his or her possession the daily inspection schedule for the commercial motor vehicle and for any vehicle drawn by the commercial motor vehicle and the completed daily inspection reports and under-vehicle inspection reports, if applicable, for the commercial motor vehicle and drawn vehicle.

[79] In addition, s. 107(9) of the HTA provides that no person shall drive a commercial motor vehicle on a highway unless a daily inspection of the commercial motor vehicle has been conducted as required by the regulations and an inspection report for each inspection has been completed. And, if the driver of the commercial motor vehicle did not personally conduct the pre-trip inspection, then s. 107(10) of the HTA requires that the person, other than the driver of the commercial motor vehicle, who actually conducts the daily inspection or under-vehicle inspection provide the driver with a completed inspection report. Furthermore, for the purpose of s. 107(9), the driver of the commercial motor vehicle may then rely on that inspection report prepared by the person who had actually conducted the daily inspection, as proof that the inspection to which it relates was conducted as required by the regulations, unless the driver has reason to believe otherwise:

Prohibition – driving without completing inspections, reports

107(9) No person shall drive a commercial motor vehicle on a highway unless a daily inspection of the commercial motor vehicle and any vehicle drawn by the commercial motor vehicle and, if required by the regulations, an under-vehicle inspection or inspections, have been conducted as required by the regulations and an inspection report for each inspection has been completed.

Where inspection conducted by person other than driver

107(10) Where a person other than the driver of the commercial motor vehicle conducts the daily inspection or under-vehicle inspection and provides the driver with a completed inspection report, the driver may rely on the inspection report for the purpose of subsection (9) as proof that the inspection to which it relates was conducted as required by the regulations, unless the driver has reason to believe otherwise.

[80] Moreover, s. 18(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07, legally allows any record or document that is required to be created, kept or surrendered by section 107 of the HTA or under that Regulation, to be made, kept or surrendered in electronic format if it meets the requirements set out in s. 18 of the Regulation. And, under s. 18(3), upon the demand of a police officer or officer appointed for the purpose of carrying out the provisions of the HTA, a driver of a commercial motor vehicle who carries a daily inspection report, under-vehicle inspection report, or inspection schedule in electronic format is required to produce, at the driver's option, an electronic display of the report or schedule that is readable from outside the vehicle; a printed copy of the report or schedule signed by the driver; or a handwritten copy of the report or schedule signed by the driver:

Electronic records

18 (1) Any record or document that is required to be created, kept or surrendered by section 107 of the Act or this Regulation may be made, kept or surrendered in electronic format if it meets the requirements of this section.

(2) An electronic record or document must meet every requirement of section 107 of the Act and of this Regulation, except that it is not required to have a signature.

(3) Upon demand of a police officer or officer appointed for the purpose of carrying out the provisions of the Act, a driver who carries a daily inspection report, under-vehicle inspection report or inspection schedule in electronic format shall produce, at the driver's option,

(a) an electronic display of the report or schedule, that is readable from outside the vehicle;

(b) a printed copy of the report or schedule, signed by the driver; or

(4) Despite section 17, an operator may keep a record or document that is in electronic format at any place if it can be readily accessed by the operator from the operator's principal place of business in a format that would allow a printed copy of the record or document to be generated as required by subsection (5).

(5) Upon demand of a police officer or officer appointed for the purpose of carrying out the provisions of the Act, an operator who has in their possession a record or document in electronic format shall generate a printed copy of the record or document, signed by the person who makes the copy.

(1) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed The Actus Reus Of The Offence For The Charge Of "Fail To Surrender Completed Daily Inspection Report"?

[81] When the defendant was stopped by Officer Eustace on August 16, 2016, at 2:59 p.m. on Dixie Road just south of Midway Boulevard, Officer Eustace had made a demand for the pre-trip inspection report for the commercial transport truck that the defendant was driving. The defendant did not provide a printed copy of the pre-trip inspection report signed by the driver or a handwritten copy of the report signed by the driver to Officer Eustace and did not mention that there may have been electronic version of the pre-trip inspection report in the electronic log book, until after Officer Eustace had returned to the commercial truck, some 15 minutes after Officer Eustace had gone back to his vehicle to do checks on the documents and information that were actually provided by the defendant to Officer Eustace. However, the defendant, after informing Officer Eustace about the existence of the electronic log book, did provide Officer Eustace full and complete access to the electronic log book mounted on the dashboard in the cab of the commercial transport truck. Moreover, Officer Eustace had said that he is familiar with electronic log books and after he had been given access to the electronic log book by the defendant, had scrolled and navigated through the menus and pages of the electronic log book, looking for the truck's pre-trip inspection report for that day, but had been unable to find a pre-trip inspection report with the statutorily-required information in electronic form.

[82] However, in response to the charge of "fail to surrender completed daily inspection report", the defendant contends he did not fail to surrender the pre-trip inspection report, since the defendant had provided full and complete access to the electronic log book set up in the cab of the commercial truck. But, providing access to the electronic log book is only part of complying with s. 107(7) of the HTA because s. 107(6) also requires that the pre-trip inspection report contain the information mandated by s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07, which the prosecution submits the defendant had failed to provide to Officer Eustace.

(a) Did the defendant surrender a "completed" daily inspection report?

[83] The defendant submits that he did inform Officer Eustace about the electronic log book mounted on the dashboard in the cab of the commercial transport truck and had provided Officer Eustace full and complete access to that electronic log book. However, Officer Eustace testified that he had been unable to find all of the required information in electronic form that is required to be in a pre-trip inspection report and that the information he did find in the electronic log book had not been contained in one general area, but that Office Eustace had to scroll through different menus to find some of the required information.

[84] Officer Eustace also said he had scrolled and navigated through the menus and pages of the electronic log book, but had not been able to find the information recorded in the electronic log book that is required to be provided in a pre-trip inspection report under s. 7(1) of the Commercial Motor Vehicle Inspections Regulation. Moreover, Officer Eustace said that the defendant had also scrolled through the menus and pages of the electronic log book and had not been able to show Officer Eustace the necessary information that has to be contained in the pre-trip inspection report for that white-coloured commercial Volvo transport truck for that day. In particular, Officer Eustace had said that the information for the date and time of the pre-trip inspection, the location of where the pre-trip inspection had been conducted, the odometer reading of the commercial truck, and a statement signed by the defendant or the person who actually conducted the pre-trip inspection, if the defendant was not the person who conducted the pre-trip inspection of the commercial transport truck, that the inspection had been conducted in accordance with the Commercial Motor Vehicle Inspections Regulation, had not been provided to Officer Eustace by the defendant in paper or electronic form.

(i) Short-form wording of the charge includes reference to the full text of the statutory provision?

[85] Furthermore, the defendant's submission that he since he had allowed Officer Eustace full and complete access to the electronic log book as evidence that the defendant did "surrender" the pre-trip inspection report to Officer Eustace, and as such, did not fail to surrender the inspection report, appears to rely literally on the "short-form wording" of the charge on the Certificate of Offence, which states that the defendant committed the offence of "fail to surrender completed daily inspection report", for the only elements of the offence that have to be proven by the prosecution.

[86] In respect to the use of short-form wordings of offences for Part I Certificates of Offences, they are specifically authorized by s. 5 of the Proceedings Commenced By Certificate Of Offence (HTA), R.R.O. 1990, Reg. 950, which states that the "words or expressions set out in Column 2 of a Schedule may be used in a certificate of offence, offence notice or summons to designate the offence described in the provision set out opposite in Column 3 of the Schedule under the Act". Hence, the legally recognized short form wording to designate the s. 107(7) HTA offence has been established under Schedule 43 as three separately worded offences of "fail to surrender inspection schedule", "fail to surrender completed daily inspection report", and "fail to surrender completed under-vehicle inspection report", whereby one of these three short-form worded charges established for s. 107(7) has been laid against the defendant:

Schedule 43

Highway Traffic Act

Part	Column 1 Item	Column 2 Offence	Column 3 Provision
VI Equipment	125.	Drive without proper headlights — motor vehicle	subsection 62(1)
	222.	Drive — hand-held communication device	subsection 78.1(1)
	303.1	Fail to surrender inspection schedule	subsection 107(7)
	303.2	Fail to surrender completed daily inspection report	subsection 107(7)
	303.3	Fail to surrender completed under-vehicle inspection report	subsection 107(7)

[87] Moreover, in regards to the use of the short form wording for an offence on a Certificate of Offence, the majority for the Court of Appeal for Ontario in Ontario (Ministry of Transportation) v. Don's Triple F Transport Inc., 2012 ONCA 536, [2012] O.J. No. 3754, has held that the short-form wording of a charge that is set out in the Schedules under the Proceedings Commenced By Certificate Of Offence Regulation (Provincial Offences Act), R.R.O. 1990, Reg. 950, made pursuant to s. 13(1) of the Provincial Offences Act, R.S.O. 1990, c. P.33, also encompasses a reference to and the necessary consideration of the wording and the full description of the offence set out in the charging provision. In addition, Feldman J. for the majority of the Court of Appeal held, at paras. 44 to 49 of Ontario (Ministry of Transportation) v. Don's Triple F Transport Inc., that the use of the prescribed short-form wording for the charge established under O. Reg. 950, which necessarily incorporates the full description of the charge in the charging provision is sufficient for all purposes to describe the offence. In particular, Feldman J.A. had held that by using the prescribed short-form wording for the particular offence, the Certificate of Offence complies with the Provincial Offences Act and in accordance with the words of s. 13(2) of that Act, is "sufficient for all purposes to describe the offence designated" and that information is sufficiently provided to the accused by the specific reference to the statutory provision under which the charge had been laid. As such, Feldman J.A. concluded that the description of the offence in the charging document had been sufficient because it complied with the short-form wording that the statute states is sufficient for all purposes to describe the offence:

In accordance with R.R.O. 1990, Regulation 950, made pursuant to s. 13(1) of the POA, the Certificate of Offence used the prescribed short form for an offence under s. 68.1(1) of the HTA:

Permit operation of commercial motor vehicle not equipped with working speed-limiting system

It also identified the date of the offence, the address of the location where it occurred, the name and address of the accused, the licence plate and National Safety Code numbers associated with the vehicle, as well as the fact that it was a commercial vehicle. Importantly, it also refers specifically to the offence section of the HTA, s. 68.1(1). That section requires that the commercial vehicle be equipped with "a speed-limiting system that is activated and functioning in accordance with the regulations" (emphasis added).

In my view, by using the prescribed short form, the Certificate of Offence complies with the POA, and, in accordance with the words of s. 13(2), it is therefore "sufficient for all purposes to describe the offence designated".

I am further satisfied that the charging document meets the three objectives identified by W.D. Drinkwalter and J.D. Ewart in Ontario Provincial Offences Procedure (Toronto: Carswell, 1980): identification of the offence; identification of the transaction; and reasonable information with respect to the act or omission.

My colleague suggests that had the words "in accordance with the regulations" been added to the short form, that may have been sufficient to provide reasonable information. In my view, that information is sufficiently provided by the specific reference to s. 68.1(1) of the HTA, which contains those exact words.

To summarize, I am satisfied that the description of the offence in the charging document is sufficient because it complies with the short form that the statute states is sufficient for all purposes to describe the offence. In my view, compliance with these provisions makes any further analysis unnecessary.

[88] Furthermore, ss. 13(1), (1.1), and (2) of the Provincial Offences Act provides the statutory authority and the power for the Lieutenant Governor in Council to make regulations to use any word or expression to designate an offence in a form prescribed under s. 13(1.1) (a) of the Provincial Offences Act and that the use of any such word or expression authorized by the regulations to designate an offence on a form prescribed under s. 13(1.1)(a) is sufficient for all purposes to describe the offence designated by such word or expression:

Regulations

13 (1) The Lieutenant Governor in Council may make regulations,

(b) authorizing the use in a form prescribed under clause (1.1) (a) of any word or expression to designate an offence.

Same, Attorney General

(1.1) The Attorney General may make regulations,

(a) prescribing the form of certificates of offence, offence notices and summonses and such other forms as are considered necessary under this Part;

(b) respecting any matter that is considered necessary to provide for the use of the forms under this Part.

Sufficiency of abbreviated wording

(2) The use on a form prescribed under clause (1.1) (a) of any word or expression authorized by the regulations to designate an offence is sufficient for all purposes to describe the offence designated by such word or expression.

Idem

(3) Where the regulations do not authorize the use of a word or expression to describe an offence in a form prescribed under clause (1.1) (a), the offence may be described in accordance with section 25.

[89] Ergo, if the statutory short-form wording prescribed for the offence is used on the Certificate of Offence to describe the charge, then reference to the charging provision is necessarily incorporated for establishing what the elements of the offence would be that the prosecution has to prove beyond a reasonable doubt in order to obtain a conviction for that specific charge. As such, s. 107(7) of the HTA requires the defendant to surrender to the enforcement official, when such a demand is made by the enforcement official, a "completed" daily inspection report with the specific information listed under s. 7(1) of the Commercial Motor Vehicle Inspections Regulation. Accordingly, surrendering a report to the enforcement officer on demand is only one part of the defendant's legal obligation under s. 107(7). He is also required to ensure that the daily pre-trip inspection report had been properly completed according to the HTA and its regulations with all the legally required information.

(b) Was the electronic version, if any, of a daily inspection report that may have been contained in the electronic log book complete with the items of information listed under s. 7(1) of the Commercial Motor Vehicle Inspections Regulation?

[90] The prosecution submits that the defendant had not completed the daily inspection report fully or properly, since s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07, sets out the information that must be included in a daily pre-trip inspection report, and since Officer Eustace had testified that he did not observe particular information in the electronic log book of the location where the pre-trip inspection for that day had been conducted, the date and time of when the pre-trip inspection had been conducted, the odometer reading for the commercial transport truck, and a statement signed by the person who conducted the pre-trip inspection of the commercial truck that the defendant had been operating or signed by the defendant, if he was not the person who conducted the pre-trip inspection of the commercial transport truck, that the commercial truck had been pre-trip inspected that day in accordance with the Commercial Motor Vehicle Inspections Regulation.

[91] Moreover, s. 107(6) of the HTA provides that the driver of a commercial motor vehicle shall, upon the demand of a police officer or officer appointed for carrying out the provisions of this Act, surrender forthwith the inspection schedule and "completed" reports that he or she is required to have in his or her possession:

Driver to carry inspection schedule, reports

[92] Now, as to what information has to be included in the daily pre-trip inspection report of a commercial motor vehicle, s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07, lists the items of information that are legally required to be included in completing the daily pre-trip inspection report. These required items of information include such items as the date and time that the pre-trip inspection had been conducted; the name of the city, town, village or highway location where the pre-trip inspection was conducted; the odometer reading of the commercial motor vehicle; and a statement that a pre-trip inspection had been conducted of the commercial motor vehicle in accordance with the Regulation and signed by the person who conducted that pre-trip inspection or a statement signed by the driver that the commercial vehicle had been pre-trip inspected in accordance with this Regulation if the driver was not the person who conducted the pre-trip inspection:

Daily inspection report

7 (1) The report completed when the daily inspection is completed must include the following:

The licence plate number and plate jurisdiction of the vehicle.
The operator's name.
The date and time of the inspection.
The city, town, village or highway location where the inspection was conducted.
The printed name of the person who conducted the inspection.
For a commercial motor vehicle, the odometer reading of the vehicle.
Any major and minor defects found during the inspection or, if none were found, a statement that no major or minor defects were found.
A statement, signed by the person who conducted the inspection, that the vehicle was inspected in accordance with this Regulation.

(2) If the driver of the commercial motor vehicle is not the person who conducted the daily inspection of the commercial motor vehicle or trailer, the driver shall sign the daily inspection report for the commercial motor vehicle or trailer before driving the commercial motor vehicle or drawing the trailer.

(3) An operator shall supply the driver or other person who conducts daily inspections with daily inspection report forms.

[93] Therefore, since s. 7(1) of the Commercial Motor Vehicle Inspections Regulation sets out what information is required to be included in a completed daily pre-trip inspection report, then the defendant simply providing Officer Eustace full and complete access to the electronic log book, without having a completed pre-trip inspection report in the electronic log book containing all the required information listed in s. 7(1) of the Commercial Motor Vehicle Inspections Regulation, is not sufficient to satisfy the defendant's obligations under s. 107(7) of the HTA of surrendering to Officer Eustace, upon demand, the completed daily pre-trip inspection report that the defendant is required to have in his possession under s. 107(6).

[94] Moreover, the defendant had failed to provide a "completed" pre-trip inspection document in written or electronic form to Officer Eustace containing the date and time when the pre-trip inspection had been conducted; the name of the city, town, village or highway location where the pre-trip inspection had been conducted; the odometer reading for the commercial transport truck; and a statement that the vehicle was inspected in accordance with the Regulation, signed by the person who conducted the inspection or signed by the defendant if he was not the person who conducted the pre-trip inspection, which are the items of information listed in s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O. Reg. 199/07, that are required to be included in the completed daily pre-trip inspection report.

[95] Ergo, since Officer Eustace's testimony about not receiving a pre-trip inspection report with the required statutorily-required information in paper or electronic form has not been contradicted or undermined in cross-examination, then the prosecution has met its burden in proving beyond a reasonable doubt that the defendant has committed the actus reus for the offence of "fail to surrender completed daily inspection report", under s. 107(7) of the HTA.

(2) Has The Defendant Established The Defence Of Due Diligence On A Balance Of Probabilities In Regards To The Charge Of "Fail To Surrender Completed Inspection Report"?

[96] In regards to any due diligence defence for the charge of "fail to surrender completed daily inspection report", there is no evidence adduced that the defendant had believed in a mistaken set of facts which, if true, would render the act or omission innocent, or that he had taken all reasonable steps in the circumstances to avoid the particular event of failing on demand to surrender a completed daily pre-trip inspection report to Officer Eustace. Therefore, the defendant has not proven on a balance of probabilities that he has a due dilgence defence, so as not to be convicted of committing the offence under s. 107(7).

[97] Ergo, the prosecution has proven beyond a reasonable doubt that the defendant has committed the offence of "fail to surrender completed daily inspection report", contrary to s. 107(7) of the HTA.

6. DISPOSITION

[98] Consequently, based on the totality of the evidence, the prosecution has proven beyond a reasonable doubt that the defendant, Kirubakaran Balasubramaniam, is guilty of committing the offence of "drive with hand-held communication device", contrary to s. 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, and guilty of committing the offence of "fail to surrender completed daily inspection report", contrary to s. 107(7) of the Highway Traffic Act, R.S.O. 1990, c. H.8. As such, convictions will be entered for both offences against Kirubakaran Balasubramaniam.

Dated at the City of Brampton on September 27, 2017.

QUON J.P.

Ontario Court of Justice

Footnote

[1] The Canadian Press, "Distracted driving causes more collisions than speeding and intoxication combined: OPP", thestar.com (Wednesday, August 30, 2017), The Toronto Star Website, Online: https://www.thestar.com/news/canada/2017/08/30/distracted-driving-causes-more-collisions-than-speeding-and-intoxication-combined-opp.html:

Ontario Provincial Police say distracted driving causes more collisions than speeding and alcohol- and drug-related collisions combined.

The OPP says there have been 6,360 collisions on roads it patrols since Jan. 1 compared with 4,700 collisions due to speeding and 1,158 crashes due to a driver drinking alcohol or taking drugs.

They say 47 people have died this year because of an inattentive driver, which is an increase from the 39 who died at the same time last year.

OPP Commissioner Vince Hawkes says this is further evidence that people who talk on their phones, text or are distracted in another way take a toll on the safety of other drivers around them.

…

Distracted driving has led to more deaths than both speeding and alcohol and drugs on OPP-patrolled roads every year since 2009 with the exception of 2012.

Court Information

Reasons for Judgment

Charges

Counsel

Cases Considered or Referred To

Statutes, Regulations and Rules Cited

Exhibits Entered

1. INTRODUCTION

2. BACKGROUND

3. THE CHARGES

Charge (1) #8338526B:

Charge (2) #8338527B:

4. ISSUES

(A) For the "drive with hand-held communication device" charge:

(B) For the "fail to surrender completed daily inspection report" charge:

5. ANALYSIS AND DECISION

(A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Is Guilty Of Committing The Offence Of "Drive With Hand-Held Communication Device"?

(1) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence For The Charge Of "Drive With A Hand-Held Communication Device"?

Hand-held devices prohibited

Wireless communication devices

Entertainment devices

Hands-free mode allowed

Exceptions

Same

Same

Penalty

Regulations

Definition

(a) Was The Defendant Holding Or Using A Hand-Held Communication Device, Considering That There Is Evidence That There Were 3 Electronic Devices In The Cab Of The Truck?

(b) The prosecution is not required to provide a detailed description or distinguishing features of the impugned device in order to prove that the impugned device is a hand-held communication device.

(c) The prosecution does not have to prove that the "phone" being held by the defendant is capable of receiving or transmitting telephone communications, electronic data, mail or text messages

(d) As The Defendant Was Observed Operating A Motor Vehicle On Dixie Road and Stopped At A Red Light, Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Had Been "Driving On A Highway" Within The Meaning Of S. 78.1(1) Of The HTA?

(i) The ruling in R. v. McConnell

(ii) For "fail to wear seatbelt" charges in Ontario, the Court of Appeal for Ontario has held that being stopped at a red light is "driving on a highway".

(iii) the R. v. McConnell case is distinguishable from the case at bar

(iv) Other courts in Ontario have held that a motorist that is stopped at a red traffic light has committed the offence of "drive with hand-held communication device" under s. 78.1(1) of The Highway Traffic Act

(v) How have other jurisdictions decided the issue of whether a motorist is "driving on a highway" when they are stopped at a red traffic light while using or holding a hand-held communication device?

(vi) What is the legislative purpose behind the s. 78.1(1) ban against holding or using a hand-held communication device while driving on a highway?

(vii) Conclusion on whether the defendant had been "driving on a highway" within the meaning of s. 178.1(1)?

(viii) Is there evidence that the defendant was using a hands-free device at the time?

(ix) Does the defendant fall within the exemptions set out in subsecs. 78.1(4), (5), or (6) of the HTA?

Burden of proving exception, etc.

Exceptions

Same

Same

(x) Does the defendant fall within the exemptions set out in the Display Screens And Hand-Held Devices Regulation, O. Reg. 366/09?

Exemption for certain commercial activities

Exempt devices

Requirement that display screens be secure

Time-limited exemption for certain commercial activities

Exemption for pressing buttons

(xi) Conclusion on whether the prosecution has proven that the defendant had committed the actus reus of the offence for the charge of "drive with hand-held communication device" beyond a reasonable doubt?

(2) Has The Defendant Established The Defence Of Due Diligence On A Balance Of Probabilities In Respect To The Charge Of "Driving With Hand-Held Communication Device"?

(B) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Is Guilty Of Committing The Offence Of "Fail To Surrender Completed Daily Inspection Report" Contrary To S. 107(7) Of The HTA?

Driver to surrender reports

Driver to carry inspection schedule, reports

Prohibition – driving without completing inspections, reports

Where inspection conducted by person other than driver

Electronic records

(1) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed The Actus Reus Of The Offence For The Charge Of "Fail To Surrender Completed Daily Inspection Report"?

(a) Did the defendant surrender a "completed" daily inspection report?

(i) Short-form wording of the charge includes reference to the full text of the statutory provision?

Schedule 43

Highway Traffic Act

Regulations

Same, Attorney General

Sufficiency of abbreviated wording

Idem

(b) Was the electronic version, if any, of a daily inspection report that may have been contained in the electronic log book complete with the items of information listed under s. 7(1) of the Commercial Motor Vehicle Inspections Regulation?

Driver to carry inspection schedule, reports

Daily inspection report

(2) Has The Defendant Established The Defence Of Due Diligence On A Balance Of Probabilities In Regards To The Charge Of "Fail To Surrender Completed Inspection Report"?

6. DISPOSITION

Footnote

This Proceeding

Judge

Counsel

Parties

Areas of Law