Court Information

Date: May 16, 2018

Provincial Offences #: 6863578B

Ontario Court of Justice

Her Majesty the Queen v. Victoria Ambrose

Before: Justice of the Peace L. Phillipps

Location: Guelph, Ontario

Appearances

P. Cassata – Provincial Prosecutor

C. Lawson – Agent for the Defendant

Reasons for Judgment

PHILLIPPS, J.P. (Orally):

Victoria Ambrose was charged with a single count under the Highway Traffic Act, Section 78.1(1), drive hand-held communication device. She was issued a Part I Offence Notice and the matter proceeded to trial on April 24th, 2018.

In this matter the onus is on the prosecution, and the standard is beyond a reasonable doubt. The evidence is, for the most part, admitted.

Facts

Ms. Ambrose was driving her motor vehicle on South Ring Road in the City of Guelph when a University of Guelph police officer noticed the glow of a device she was using from his cruiser stopped directly beside and to her right. Both the defendant and the officer were facing a red light. The officer observed Ms. Ambrose to be looking up and down at the handheld communication device approximately four times over the course of his observations.

The officer testified that he saw the traffic signal turn green and the two cars in front of Ms. Ambrose moved forward but she did not. He activated the ditch light on the cruiser light bar which shone into Ms. Ambrose's car and she began to drive forward. The officer testified that his observations of the use of the device totaled 20 seconds and I accept this testimony as it is consistent with the description of his observations of the other vehicles in the use of his light.

The officer pulled Ms. Ambrose over a short time later and learned that the device she was using was an Apple watch. Ms. Ambrose confirms this in her testimony. The evidence before me is that an Apple watch is capable of receiving and transmitting electronic data. Ms. Ambrose testified that the watch was not connected to her phone which was in the car with her at the time.

Whether it was actually connected to another device at the time of the offence is not a determining factor. It is the holding, or use of the device that the court must determine.

Ms. Ambrose testified that despite the capabilities of the Apple watch she was merely checking the time which requires touching the screen to activate and deactivate it. It is apparent that she chose this method over the use of the clock in her automobile.

The Law

Section 78.1(1) – No person shall drive a motor vehicle on a highway while holding or using a handheld wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Entertainment Devices

Subsection (2): No person shall drive a motor vehicle on a highway while holding or using a handheld 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.

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

Purpose of the Legislation

The source and purpose of this legislation is cited in the appeal decision of R. v. Whalen, 2014 ONCJ 233. Justice Epstein gave careful consideration to the over-arching purpose of the legislation which I intend to quote extensively from his decision as it not only assists in understanding the law, but is also binding upon this court.

I begin at paragraph 10 of that decision.

Section 78(1) was added to the Highway Traffic Act with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, Statutes of Ontario, 2009 c.4. On third reading, on April 22, 2009, the Minister of Transportation described the purpose of the amending legislation this way:

Our eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of handheld 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, drivers should focus on one thing and one thing only: driving.

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

His Honour further sets out beginning at paragraph 16 of his decision:

It is my view that this analysis is perhaps moot in any event since s.78.1(1) makes it an offence to drive while "holding" or "using" a cell phone. It was clear from the officer's evidence that the Appellant was "using" the phone when observed.

At paragraph 17:

The issue then becomes whether the Appellant is exempt from liability by virtue of s.78.1(3), which permits a person driving a motor vehicle to use a cell phone "in hands-free mode". It is my view that "hands-free mode" in this age of digital technology does not simply mean "without hands". Rather, the term refers to a manufacturer's designed adaptation which permits the cell phone to be used without being held by the operator and without physically entering such data as phone numbers. Most units (either portable or built into the car) are activated by the driver's voice so the driver speaks and hears the call's voice through a speaker.

Paragraph 18:

This interpretation is consistent with s.14(1) of the Regulations which permit a driver to press a button on a hand-held communication device to initiate or end cell phone calls provided that the device is securely mounted to the motor vehicle.

I pause here to note the interpretation of the exemption provided in this decision. Continuing at paragraph 18 of the decision:

Section 14(2) permits an operator to press a button on a device that is worn on the driver's head or hung over or placed inside the driver's ear or is attached to the driver's clothing and is linked to a hand-held wireless communication device.

At paragraph 19:

This interpretation is entirely consistent with the legislature's purpose in enacting this legislation. When the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4 was introduced to the House on November 20, 2008 the Minister of Transportation said as follows:

We are simply asking drivers not to use hand-held wireless communication and electronic entertainment devices while driving. The use of hands-free wireless communications devices, such as an earpiece or Bluetooth set up to work with your cellphone or BlackBerry, will still be allowed. GPS units mounted on a dashboard will still be permitted.

See: Ontario Legislative Assembly, Official Report of the Debates (Hansard), 39th Parliament, 1st Session, (20 November 2008) (Hon. James Bradley).

I also rely on R. v. Kazemi, 2013 ONCA 585 at paragraph 14:

Road safety is best ensured by the 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.

Findings

I am satisfied by the evidence that the Apple watch was used while Ms. Ambrose was driving a motor vehicle on a highway. The law is clear that driving occurs even when motor vehicles are stopped at red lights, and I cite the Ontario Court of Appeal decision York Regional Municipality v. Tassone, 2007 ONCA 2015.

I am satisfied that there is no obligation upon the Crown to show that the device was actually connected to a source of electronic communication at the time of the offence, only that the device is capable of doing the things contemplated in the legislation. The Crown did so in this case and it was confirmed in part by the defendant.

The key to determining this matter is distraction. It is abundantly clear from the evidence that Ms. Ambrose was distracted when the officer made his observations. He testified that she was looking up and down repeatedly over the 20 seconds that he made his observations. He observed the red light turn to green and the two cars in front of Ms. Ambrose move ahead while her vehicle remained motionless in the live lane of traffic. It is clear that it was only when the interior of the motor vehicle was illuminated by the officer that the defendant was jolted into the reality of the operation of her motor vehicle.

Ms. Ambrose's account of conducting a time check is not consistent with the observations made by the officer and the level of distraction observed. Checking one's time piece is normally done in a moment, even if it had to be touched to be activated. One would envision such a time check to entail looking toward the watch, touching the display to activate, reading the time, touching the display to deactivate, looking up. A process that would only take a few seconds. This is not what happened according to both the officer and the defendant. Both presented evidence of three or four movements of the head up and down during the use of the device.

Despite the Apple watch being smaller than a cellular phone, on the evidence it is a communication device capable of receiving and transmitting electronic data. While attached to the defendant's wrist it is no less a source of distraction than a cell phone taped to someone's wrist. It requires the driver to change their body position and operate it by touch. It was the defendant's own testimony of the process of looking down to touch activate the screen, looking down to read the display, looking down to deactivate the screen. It is this distraction from the business of driving that the law is intended to curtail.

It is submitted on behalf of the defendant that the Apple watch is akin to a Bluetooth headset. I find that there are marked differences between these devices. One is worn on the head or clothing in accordance with the Regulations, while the other is wrist worn and has a screen upon which information is displayed where others do not.

It is also clear that the exemptions permitted by parliament contemplate receiving or sending audio communication—tele-communication that is—rather than devices capable of receiving or sending texts. The intention of keeping eyes up and on the road while using the device is not accomplished with the use of the Apple watch.

I reject the submissions of the defence that mounting the watch to one's wrist satisfies the requirements of the exemptions in Section 14 of Ontario Regulation 366/09. That Regulation contemplates devices that are "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".

As I have already noted the decision in R. v. Whalen interprets the wording as "provided that the device is securely mounted to the motor vehicle".

The evidence is that there were a series of motions and observations made in order to view the Apple watch, not that it was accomplished by way of a quick glance. Nor is the evidence that the actions were to make, answer or end a cell phone call or involved a two-way radio as contemplated by the legislative exemption.

In this case I find that Ms. Ambrose was distracted from driving as the result of the use of a hand-held communication device for which an exemption does not apply. The prosecution has proven their case beyond a reasonable doubt. Accordingly, I find the defendant guilty.

Submissions as to Penalty

MR. CASSATA: Thank you, Your Worship. I'm just seeking the set fine of $400.

MR. LAWSON: Thank you for your in-depth judgment, Your Worship. If we could ask for 90 days to satisfy that judgment.

THE COURT: There will be a fine of $400, 90 days to pay.

MR. LAWSON: And the address is the same to the best of my knowledge.

THE COURT: Thanks very much.

MR. CASSATA: Thank you, Your Worship.