Court Information

Date: April 20, 2018

Ontario Court of Justice Central West Region Brampton, Ontario

Between:

CITY OF MISSISSAUGA

-and-

GIACOMO MURACA

Reasons for Judgment

Duncan J.

Facts and Charge

[1] The defendant was charged on a certificate of offence with breaching section 78.1(1) of the Highway Traffic Act – using cell phone while driving. He was convicted following trial and now appeals that conviction.

[2] A police officer testified that while he was stopped at a red light in an unmarked police car he witnessed the defendant stopped in an adjacent lane holding a cell phone and apparently scrolling through it. When the light changed, he pulled the defendant over and issued him the ticket.

Defendant's Evidence

[3] The defendant testified that at all times his cell phone was situated in a mounting frame affixed to the dashboard and was never in his hand. His car was equipped with Bluetooth and he usually activated calls by voice command without touching the phone. But on the occasion in question this usual practice did not work, so when stopped, he touched the phone itself to make sure the Bluetooth connectivity of the phone was turned on. He "pressed the Bluetooth" (Transcript P 14) or "scrolled up and pressed the Bluetooth" (P15) or "scrolled and touched" (P 19) "the Bluetooth button" (P19). He never did say whether he found Bluetooth to have been on or off, whether he made any change to it or whether he was able to complete his call.

The Hands-Free Exemption

[4] Counsel for the defendant at trial and on appeal relied on the hands-free exemption in Regulation 366/09:

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. O. Reg. 366/09, s. 14 (1).

Trial Judge's Decision

[5] The learned trial judge in her reasons for judgment twice mentioned that she found the defendant to have been "honest and candid" in his evidence. However she concluded:

In my analysis of this particular case I have made a note of the regulation and in this case I believe the legislation is very clear that it is to make, answer or end a phone call and it is very clear about pressing buttons. In your testimony sir you mentioned you were scrolling and I understand that was in order to make a phone call but I believe you also said that you did not remember and as a result there is unreliability to the testimony that you gave. I believe the officer. The officer is a trained investigator. He had 30 to 40 seconds to observe you and it was on that clear date. Therefore, I am satisfied that based on the evidence that I do accept the crown has proven beyond a reasonable doubt that you were driving a motor vehicle on a highway or holding or using a handheld wireless communication device and I find you guilty of this offence. Okay. All right.

Appellate Analysis

Inadequacy of Reasons

[6] With great respect and appreciating the work load and minimal opportunity for Justices of the Peace hearing traffic matters to craft reasons for judgment, it is my view that the reasons fail to reveal the path of reasoning to conviction: R v Sheppard 2002 SCC 26, [2002] 1 SCR 869.

[7] There were two paths available – to find that the defendant held the phone in his hand or that he used the phone in its mount in a way that did not bring him within the exemption. But it is unclear what the court found with respect to the main issue in the case, that is, whether the phone was in hand or whether it was mounted. The acceptance of the police officer's evidence would suggest one finding but the finding that the defendant was honest and candid would suggest the opposite.

Credibility and Burden of Proof

[8] To the extent that it could be concluded that the trial judge found that despite the defendant's honesty he was nevertheless unreliable – this seems to be solely based on the observation that the defendant acknowledged a lack of memory about something. But the transcript reveals that the only time the defendant said that he didn't remember was with respect to a question whether he touched the phone with his left hand or right. (P 17). In my view it would be unreasonable to conclude from such a peripheral non-memorable point that the defendant, though honest, was unreliable on the main point of conflict – whether the phone was in his hand or not. Further, such a thin basis for an adverse credibility finding, if that's what occurred, leads me to conclude that the learned trial Justice lost sight of the burden of proof on this issue and failed to give the benefit of reasonable doubt to the defendant. [1]

[9] Accordingly, if the conviction was based on a finding that the defendant held the phone, in my respectful view the conviction cannot stand.

The Exemption Issue

[10] Alternatively, if the path to conviction was based on using the phone, the issue became whether the defendant fell within or outside the conduct described in the exemption. Unfortunately, the learned trial Justice made no clear finding on this point. The Respondent submits that I should make the finding myself – that the defendant did more than push a button. By his own admission he scrolled to get to the button.

[11] While on the face of it the Respondent seems to be on solid ground, one must also consider that the exemption section is meaningless unless some interpretative latitude is applied. For example it speaks of "pressing a button" while strictly speaking there are no buttons on cell phones. Instead the user presses an image or a word or an icon. If these things can be "buttons", can a "pressing" include a "swiping" or a "scrolling"?

[12] I have not been provided with any case law where this exact point has been decided and its resolution is not without difficulty. The Court would benefit from the views of the trial court, where these cases are frequently heard and would further benefit from a more complete record as to what exactly is involved in the action in question and in particular whether it involves a risk of greater distraction than a mere pressing of a button. For this reason I decline the Respondent's suggestion.

Decision

[13] In the result, the appeal is allowed; a new trial is ordered. The prosecution may consider that a re-trial might not be in the interests of justice having regard to the time and expense that the defendant has incurred to this point in time. The respondent can arrange a date with counsel for the defendant to attend before the trial court.

April 20, 2018

B. Duncan J.

L. Castellucci for the Appellant M. Commisso for the Respondent City

Footnote

[1] The burden was on the prosecution to prove beyond a reasonable doubt that the defendant had the phone in his hand or that he used the phone if it was in the mount. If the latter was proven, only then did the burden switch to the defendant, by virtue of s 47 of the Provincial Offences Act, to prove that he was within the exemption.