Court Information
Court: Ontario Court of Justice
Date: 2018-10-25
Court File No.: Halton – Burlington 1260-7477028B
Location: Provincial Offences Court – Burlington, Ontario
Parties
Between:
Her Majesty the Queen
— AND —
Maria Borges
Judicial Officer
Before: Justice of the Peace Kenneth W. Dechert
Counsel
For the Prosecution: A. Senkus
For the Defendant: Maria Borges (Self-represented)
Hearing Dates
Heard on: April 13, 2018 and June 15, 2018
Reasons for Judgment released on: October 25, 2018
Statutes, Regulations and Rules Cited
Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, subsections 1(1), 78.1(1), 78.1(3) and 78.1(6).
Cases Cited
- Regina v. Charlebois, [2016] O.J. No. 7059 (Ont. C.J.)
- Regina v. Cinous, 2002 SCC 29
- Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.)
- Regina v. Hibbert
- Regina v. Kazemi, 2013 ONCA 585
- Regina v. Kurtzman (1991), 4 O.R. (3d) 417
- Regina v. Latimer, 2001 SCC 1
- Regina v. Perka
- Regina v. Pizzurro, [2013] O.J. No. 4299 (Ont. C.A.)
- Regina v. Raham, 2010 ONCA 206
- Regina v. Sault Ste. Marie (City)
- Regina v. Stelco Inc.
JUDGMENT
K.W. DECHERT, J.P. (orally):
INTRODUCTION
[1] Under Certificate of Offence no. 1260-7477028B the defendant, Maria Borges, stands charged that she on the 22nd day of July, 2017, at Queen Elizabeth Way southbound, north of North Shore Boulevard, in the municipality of Burlington, did commit the offence of "drive – hand-held communication device", contrary to the Highway Traffic Act, subsection 78.1(1).
[2] The trial of the said charge began before me on the 13th day of April, 2018, when the defendant entered a plea of not guilty to the charge. On that date, I received the evidence of Police Constable Kevin Westhead of the Ontario Provincial Police, tendered on behalf of the prosecution and the defendant's testimony-in-chief. The trial was then adjourned to June 15th, 2018, for continuation. On that date, the prosecutor cross-examined the defendant and the parties presented their final legal arguments. The proceeding was then adjourned to October 25th, 2018 for judgment.
[3] The prosecutor, the City of Burlington, was represented by Ms. A. Senkus. The defendant was self-represented.
THE LAW
(i) Relevant Statutory Provisions
[4] The defendant is charged with the offence of "drive – hand-held communication device" contrary to subsection 78.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, hereinafter referred to as "the H.T.A." That subsection reads as follows:
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.
[5] Subsection 78.1(3) of the H.T.A. establishes an exemption from liability for the subject offence, if the defendant is using the subject device in "hands-free mode". Under subsection 78.1(6) of the H.T.A., the provisions of subsection 78.1(1) of the H.T.A. 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.
[6] The terms "highway" and "roadway", which are relevant to this proceeding, are defined in subsection 1(1) of the H.T.A., as follows:
1(1)
'highway' includes a common and public highway, street, avenue, parkway, driveway, square, place, bridge, viaduct or trestle, any part of which is intended for or used by the general public for the passage of vehicles and includes the area between the lateral property lines thereof;
'roadway' means the part of the highway that is improved, designed or ordinarily used for vehicular traffic, but does not include the shoulder, and, where a highway includes two or more separate roadways, the term 'roadway' refers to any one roadway separately and not to all of the roadways collectively.
(ii) Relevant Common Law
[7] In his decision in Regina v. Raham, 2010 ONCA 206, Doherty J.A. opined that offences created by the H.T.A. "are properly regarded as public welfare offences". Following the reasoning articulated in Regina v. Sault Ste. Marie (City), Mr. Justice Doherty noted that public welfare offences are "prima facie strict liability offences".
[8] In his decision in Regina v. Sault Ste. Marie (City), supra, Dickson J. determined that public welfare offences could fall in to any one of three categories: mens rea offences, strict liability offences or absolute liability offences. The text of subsection 78.1(1) of the H.T.A. does not contain language indicative of an offence requiring proof of mens rea, and therefore the offence created by that subsection may only be categorized as one of either strict or absolute liability.
[9] During the course of final submissions in this proceeding, the prosecutor submitted that the subject offence is, properly, one of strict liability. Therefore, the presumption in favour of a strict liability classification, rather than absolute liability, has not been rebutted by the prosecution. Furthermore, in her Provincial Offences Act appellate level decision in Regina v. Charlebois, Leroy J. determined the offence of "drive - hand-held communication device" to be a strict liability offence. I am bound by that decision.
[10] In light of my determination that the offence is one of strict liability, if the prosecution is able to prove all of the elements of the subject prohibited act, beyond a reasonable doubt, it is open to the defendant to seek to be excused from liability for the offence by proving that she "took all reasonable care". In describing the defence of "reasonable care" in Sault Ste. Marie, Dickson J. noted that it involved concepts of due diligence and/or mistake of fact and a consideration of "what a reasonable man would have done in the circumstances". In this regard, the jurist noted that the said defence was available "if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event".
[11] Accordingly, in this proceeding if the prosecution proves, beyond a reasonable doubt, that the defendant committed the offence, then the fault element of negligence is automatically imported into the offence and the defendant will be found guilty, unless she is able to prove, on a balance of probabilities, that in committing the offence she either exercised due diligence or acted on the basis of a reasonable mistake of fact. If she is able to establish either of these defences, her presumed negligence is rebutted and she will be excused of liability for the offence.
[12] In his decision in Regina v. Pizzurro, [2013] O.J. No. 4299 (Ont. C.A.), at paragraph 8, Goudge J.A. stated as follows:
Section 78.1(1) [of the H.T.A.] applies to two kinds of devices: hand-held wireless communication devices (that is, cell phones) and other devices prescribed by regulation. Section 78.1(7) gives the Minister the power to make regulations prescribing devices for the purposes of s. 78.1(1).
[13] In light of this statement, I am of the view that I am able to take judicial notice that a cell phone is a "hand-held wireless communication device" in the context of subsection 78.1(1) of the H.T.A.
[14] Furthermore, in his companion judgment in the case of Regina v. Kazemi, 2013 ONCA 585, Goudge J.A. determined that the word "holding" as contained in the text of subsection 78.1(1) of the H.T.A., means "having it in one's hand" for any period of time. In reaching his decision in this regard, Mr. Justice Goudge made the following comments, at paragraphs 14 and 15 of the judgment, pertaining to the purpose of the offence created by subsection 78.1(1):
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 ensures 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 there to 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.
THE EVIDENCE
(i) The Testimony of Police Constable Kevin Westhead
[15] Constable Westhead testified in this proceeding on April 13, 2018. He testified with the assistance of his investigative notes to refresh his memory.
[16] The officer stated that on July 22nd, 2017 at approximately 7:43 a.m., he was conducting cell-phone enforcement by patrolling the Queen Elizabeth Way (Q.E.W.) in an unmarked police vehicle. He advised that at the material time, he was travelling in the second lane from the left of four southbound lanes of the Q.E.W., at a location north of North Shore Boulevard, in the City of Burlington. I am able to take judicial notice of the fact that the Queen Elizabeth Way is a public – controlled access highway located in the Province of Ontario, which runs through part of the City of Burlington. When I consider that fact in the context of the totality of evidence in this proceeding, I am of the view that the Queen Elizabeth Way, at the subject location constitutes a "highway", within the meaning of the H.T.A.
[17] The constable advised that at the said time, he observed a silver-coloured Volkswagen Golf motor vehicle travelling in lane one, "directly to his left". He stated that he observed the female driver of this motor vehicle holding a black-coloured cell-phone in her right hand, "in a walking talkie style fashion". He noted that the driver appeared to be talking into the phone.
[18] Officer Westhead testified that he made his observations through his "clear" driver's side window and through the front passenger side window of the Volkswagen vehicle, when he was right beside the vehicle. He advised that as it was a "clear, bright day", his view of the driver was clear and unobstructed. He went on to advise that he made his observations while he paced the subject motor vehicle, travelling at a rate of speed of approximately 110 kilometres per hour, noting that he saw the driver utilize her cell-phone for a span of approximately 8 to 10 seconds.
[19] He advised that upon making his observations he effected a vehicle stop on the left shoulder of the Q.E.W. and approached the driver's side window. Upon speaking with the female driver, he noticed the same black cell-phone which he had observed earlier, located on the front passenger seat of the said vehicle. He was able to identify the brand of the cell-phone as an "i-phone". The driver identified herself through an Ontario driver's licence as the defendant Maria Borges. The officer then charged Ms. Borges with the subject offence.
[20] In describing the manner in which the defendant was holding the cell-phone at the material time, Constable Westhead noted that the defendant's arm was at a 45 degree angle relative to her face and that she was holding the phone 3 to 4 inches from her face. The officer stated that he felt that she was talking into the phone, as her lips moving.
[21] In concluding his testimony, Constable Westhead noted that at the relevant time, the weather was clear and warm and the road conditions were dry. He described the traffic conditions at the subject time as being "moderate" but swiftly moving.
(ii) The Testimony of Maria Borges
[22] During the course of her testimony, Ms. Borges admitted that she committed the subject prohibited act by holding her cell-phone in her right-hand while she was driving her Volkswagen motor vehicle on the Queen Elizabeth Way. She testified that approximately 10 to 15 minutes after she began to travel on the said highway, she noticed that her cell-phone was beginning to slip in downward manner within the spring-loaded cell-phone holder, which was mounted on the dashboard of her vehicle.
[23] Ms. Borges stated that approximately 10 seconds after she noticed the cell-phone begin to slip within the holder, she instinctively grabbed the cell-phone as she feared that it was about to fall out of the holder and onto the floor. She took this step because she was concerned that the phone would land in the area of her feet and dangerously interfere with her driving conduct.
[24] Ms. Borges testified that after she took the cell-phone from the holder, she held it for a period of 5 to 6 seconds before placing it on the passenger seat. She indicated that during that period of time, just before she was pulled over by the police officer, she continued to talk with her friend with whom she had been speaking through the phone's speaker, to advise him that the phone had been slipping out of its holder and that she needed to end the telephone connection.
[25] Ms. Borges testified that she did not, at the material time, intend to hold the phone. She stated that her actions in grabbing the phone from the holder were precipitated by the fact that the phone was slipping out of its holder, and her fear that that the phone would fall to the floor, near her feet, thereby distracting her from her driving activities on the subject high-speed highway. She seeks to be excused of liability for this offence, submitting that her actions were necessary for her safety, to prevent a foreseeably dangerous circumstance from transpiring. Additionally, she submits that she acted responsibly, by taking all reasonable steps to avoid committing the subject offence.
[26] Ms. Borges testified that at the time of the offence she was travelling on the Q.E.W. from her residence in Oakville, to a destination in Grimsby. She advised that while she had planned this trip by mapping out the route in her mind, she did not feel confident in finding her destination without the assistance of a friend who had agreed to provide her with verbal directions through her cell-phone, while the phone was mounted on the dashboard in its plastic holder.
[27] Ms. Borges advised that she began her journey to Grimsby in the morning of July 22nd, 2017. She stated that the weather at the time was "sunny and nice" and that the traffic on the Q.E.W. was light.
[28] Ms. Borges advised that prior to leaving her residence, she placed her cell phone in the cell-phone holder affixed to one of the vents located in the central part of the dashboard of her vehicle. She felt that she had placed her cell-phone securely in that holder, however, she admitted that she did not conduct an inspection of the integrity of the holder. She felt that the slow slippage of the cell-phone within the holder was caused by the general "jerking" motion of the vehicle as it changed lanes or "bounced" over pot holes on the highway. In that regard, she did not believe that the cell-phone holder was defective at the relevant time.
[29] Ms. Borges further testified that she called her friend prior to leaving her residence on the cell-phone and then placed the phone on "speaker" mode as it rested in the holder, so that she could speak with her friend and receive directional guidance from him as she travelled towards Grimsby.
[30] Ms. Borges stated that as she travelled from the westbound Q.E.W. to the southbound – Niagara-bound Q.E.W. in Burlington, with her friend's assistance, she became more confident with the route that she was travelling. She advised that as she became more confident, she began to change lanes from the slower right-hand lanes, increasing her speed to between 100 and 110 kilometres per hour and moving into the "fast" left-hand lane, beside the left shoulder of the roadway.
[31] Ms. Borges stated that once she noticed the cell-phone slipping in the holder, she panicked and instinctively grabbed the phone. At that time, Ms. Borges remarked to her friend, in a frightened tone of voice, "Oh my God, the phone is slipping" and that she needed to end the connection immediately. She advised that before she ended the phone call with her friend, she sought confirmation from her friend that she needed to use the Christie Street exit from the Q.E.W. to reach her chosen destination.
[32] Ms. Borges testified that shortly after she placed the cell-phone on the seat, she noticed the flashing lights of the police cruiser. She followed the directions of the police officer to pull over on the left-hand shoulder of the highway.
[33] She stated that after she received the ticket for the subject offence, the police officer helped her merge from the left shoulder of the highway, back onto the southbound lanes of the Q.E.W. She advised that she needed the help of the officer to help her move back onto the highway, as she was scared of the high speed of traffic in that area at that time.
[34] During cross-examination, Ms. Borges admitted that the cell-phone holder was clipped to a vent in the centre of the dashboard, above a number of dials and buttons related to the operation of her radio and the convertible roof. She acknowledged that at the relevant time, the cell-phone holder was situate to the right of the steering wheel and the brake and accelerator pedal. She stated that her actions in grabbing the phone, which she felt was about to fall out of the holder, was informed by her perception that the phone could fall to the floor and bounce to the left, in the area of her feet, thereby creating an emergency on the highway. At that time, Ms. Borges felt that she needed to grab the cell-phone to avert a possibly dangerous situation, for her own safety.
[35] Ms. Borges testified that it took her 1 second to grab the phone from the holder at the material time, but that she continued to hold it for a further 5 seconds so that she could explain the emergency situation to her friend and ease his concern as to the safety risks associated with the phone slipping out of its holder. Ms. Borges acknowledged that if she had immediately placed the phone down on the passenger seat, she would have only held the phone for a total of 2 seconds. She admitted that her additional verbal interaction with her friend while she was holding the phone, prior to placing it down on the passenger seat, took another 4 seconds.
[36] During cross-examination, Ms. Borges acknowledged the fact that there was a shoulder adjacent to the left-hand lane of the roadway of the Q.E.W. She explained that once she noticed the cell-phone slipping in the holder, her mind was focussed on the phone. She advised that she was, at that time, too nervous to attempt to move her vehicle off of the roadway onto the left shoulder and stop it on the shoulder without impeding traffic, in order to legitimately move the cell-phone out of the holder and onto the passenger seat or elsewhere in the vehicle. Ms. Borges acknowledged that she was a "nervous" highway driver, and that she lacked the confidence to move her vehicle from a high-speed live lane of traffic onto an adjacent shoulder, in order to address emergency situations on the highway.
[37] At the material time, Ms. Borges feared that the cell-phone slipping from the holder could result in a dangerous emergency situation on the highway. She acknowledged that her fear in that regard was informed by a previous experience where her cell-phone had actually fallen from the holder onto the floor of the vehicle, and in the area of her feet. Ms. Borges stated that although this incident caused her great stress and anxiety, she was able to successfully manage the emergency by immediately pulling over onto a residential side street to pick-up the phone from the area of her feet.
[38] Ms. Borges testified that her fear for her safety caused by the slipping cell-phone was enhanced by the fact that it took place on a controlled access highway where vehicles were travelling at high rates of speed, and where she was unable to easily and safely pull over and stop her vehicle, in order to retrieve the fallen cell-phone.
[39] Finally, Ms. Borges testified that her general fear of driving was associated with a motor vehicle accident which she experienced approximately 3 years ago. She advised that following the said accident, she became a nervous highway driver. She asserted that the accident has continued to inform her ability to react to challenging circumstances, which she might experience in the course of highway driving.
[40] Ms. Borges stated that when she noticed the subject cell-phone slipping down in its holder, she experienced overwhelming fear that the falling phone would significantly interfere with her ability to control her vehicle while travelling at a high rate of speed. She felt that her personal safety was imminently in peril. She argued that she then acted instinctively to grab the cell-phone before it fell out of the holder, as a means of averting the immediate risk to her safety, which she perceived to be a natural consequence of the cell-phone falling to the floor of her vehicle.
[41] During her testimony, Ms. Borges emphasized that while she knew that it was wrong to hold a cell-phone while driving; in these circumstances, she felt that she had to stop the phone from falling as a means of preventing a dangerous event from transpiring, for her own safety.
THE ISSUES
[42] In my view, based upon the totality of the evidence in this proceeding, the prosecution has proven the following elements of the subject offence, beyond a reasonable doubt:
That on the 22nd day of July, 2017, at 7:43 a.m., the defendant, Maria Borges was driving a Volkswagen automobile on the Queen Elizabeth Way, southbound, north of North Shore Boulevard, in the City of Burlington;
That a Volkswagen automobile is a motor vehicle within the meaning of the H.T.A.;
That the Queen Elizabeth Way is a highway within the meaning of the H.T.A.;
That at the said time, while driving the said Volkswagen automobile, Ms. Borges was holding a cell-phone, a hand-held wireless communication device, in her right hand.
[43] I am, therefore, satisfied that the prosecution has met its burden of proving the essential elements of the prohibited act, as stated in subsection 78.1(1) of the H.T.A., beyond a reasonable doubt. Accordingly, the fault element of negligence is automatically imported into the subject offence and the defendant will be found guilty of the offence unless she is excused of liability therefor, through the operation of any common law defence or, by establishing on a balance of probabilities that in committing the offence she either exercised due diligence or committed the offence on the basis of a reasonable mistake of fact.
[44] Ms. Borges submits that she should be excused of liability for the offence on the basis of the common law defence of "necessity". She argues that she has met her evidential burden to establish an air of reality to each of the required elements of the said defence and that the prosecution has failed to disprove those elements beyond a reasonable doubt.
[45] In the alternative, Ms. Borges argues that she has met her legal burden to prove, on a balance of probabilities, that in committing the offence, she exercised reasonable care. In fact, she maintains that she took all reasonable steps to avoid committing the offence and therefore exercised due diligence.
[46] She submits that by operation of the due diligence defence, she has rebutted her presumed negligence in committing the subject offence, and must, therefore, be excused of liability for the offence.
[47] Accordingly, the remaining issues in this proceeding are as follows:
Whether the defendant should be excused of liability for the subject offence based upon the defence of necessity; and
Whether the defendant has proven the defence of due diligence, on a balance of probabilities, and should, therefore, be excused of liability for the offence.
ANALYSIS
(i) The Defence of Necessity
[48] The common law defence of necessity was formally recognized in Canada, in the Supreme Court of Canada decision in Regina v. Perka. In his decision in that case, Dickson J. defined the defence, in part, as follows:
…It rests on a realistic assessment of human weakness, recognizing that a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts, whether of self-preservation or of altruism, overwhelmingly impel disobedience. The objectivity of the criminal law is preserved; such acts are still wrongful, but in the circumstances they are excusable. Praise is indeed not bestowed, but pardon is, when one does a wrongful act under pressure which, in the words of Aristotle in the Nichomachean Ethics …"overstrains human nature and which no one could withstand".
[49] He went on to describe the offence as follows:
…At the heart of this defence is the perceived injustice of punishing violations of the law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong bit it is excused because it was realistically unavoidable.
[50] At a later point in his decision, he generally described the limitations of the defence as follows:
If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognized, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale. The rationale, as I have indicated, is the recognition that it is inappropriate to punish actions which are normatively "involuntary". …
[51] In its decision in Regina v. Latimer, 2001 SCC 1, the Supreme Court refined the general parameters of the defence of necessity, as originally enunciated in Regina v. Perka, supra. In that decision, the Court stated that in order to establish the defence, the accused must adduce sufficient evidence to "give an air of reality" to each of the three requirements of the defence. Those requirements were defined as follows:
There must be an urgent situation of clear and imminent peril;
There must be no reasonable legal alternative to disobeying the law; and
There must be proportionality between the harm inflicted and the harm avoided.
[52] As stated in Regina v. Latimer, supra, at paragraph 35, in evaluating whether an accused has met his/her evidential burden in respect of this defence, the trial judge must first determine "whether there is sufficient evidence that, if believed, would allow a reasonable jury – properly charged and acting judicially – to conclude that the defence applied and acquit the accused". In paragraph 36, the Court went on to note that "[f]or the necessity defence, the trial judge must be satisfied that there is evidence sufficient to give an air of reality to each of the three requirements."
[53] In Regina v. Cinous, 2002 SCC 29, the Supreme Court of Canada stated the evidentiary test for this defence as being "whether there is evidence on the record upon which a properly instructed jury acting reasonably could acquit".
[54] In discussing the first requirement of the necessity defence in Latimer, the Supreme Court stated as follows:
…In short, disaster must be imminent, or harm unavoidable and near. It is not enough that the peril is foreseeable or likely; it must be on the verge of transpiring and virtually certain to occur. …
[55] In commenting on the scope of the second requirement, the Court noted that "if there was a reasonable legal alternative to breaking the law, there is no necessity". The jurists recognized that an "accused need not be placed in the last resort imaginable, but must have no reasonable legal alternative".
[56] Finally, in discussing the issue of the proportionality between the harm inflicted and the harm avoided, the Supreme Court in Latimer, stated as follows:
Evaluating proportionality can be difficult. It may be easy to conclude that there is no proportionality in some cases, like the example given in Perka of the person who blows up a city to avoid breaking a finger. Where proportionality can quickly be dismissed, it makes sense for a trial judge to do so and rule out the defence of necessity. But most situations fall into a grey area that requires a difficult balancing of harms. In this regard, it should be noted that the requirement is not that one harm (the harm avoided) must always clearly outweigh the other (the harm inflicted). Rather, the two harms must, at a minimum, be of comparable gravity. That is, the harm avoided must be either comparable to, or clearly greater than, the harm inflicted. …
[57] In addition to defining the three requirements of the necessity defence, the Court in Latimer went on to determine the standard of measure for those requirements; objective or subjective? The Court concluded that the first two requirements; imminent peril and no reasonable legal alternative, needed to be assessed using a "modified objective test". This standard is an objective one which takes into consideration "personal characteristics that legitimately affect what may be expected" of an accused. The Court went onto adopt the standard enunciated by Lamer C.J. in his decision in Regina v. Hibbert, at paragraph 59, as follows:
it is appropriate to employ an objective standard that takes into account the particular circumstances of the accused, including his or her ability to perceive the existence of alternative courses of action.
[58] On the other hand, the Court in Latimer noted that the third requirement of proportionality needed to be "determined on a purely objective standard". In reaching this conclusion, the jurists, at paragraph 34, stated, in part, as follows:
The evaluation of the seriousness of the harms must be objective. A subjective evaluation of the competing harms would, by definition, look at the matter from the perspective of the accused person who seeks to avoid harm, usually to himself. The proper perspective, however, is an objective one, since evaluating the gravity of the act is a matter of community standards infused with constitutional considerations…
[59] In considering the evidence in this proceeding in the context of the three requirements of the necessity defence, I am of the view that the defendant has failed to establish an air of reality to both the second and third requirements. She cannot, therefore, be excused of liability for the subject offence, based upon the common law defence of necessity.
[60] I find, however, that at the moment that the defendant chose to grab the cell-phone out of the holder in order to prevent it from slipping out of the holder on to the floor of the car, she perceived that she was in a situation of imminent peril or danger; the first of three requirements associated with the necessity defence. She genuinely feared that if the cell-phone fell onto the floor in the area of the brake and accelerator pedals of the car, she would not be able to control her vehicle at highway speeds, thereby risking her life and that of other users of the Queen Elizabeth Way.
[61] In reaching that conclusion, I have evaluated the imminent peril requirement, using the modified objective standard. There is no question that at the material time, the defendant perceived that she was facing a real risk of danger, if the cell-phone fell to the floor. This was a reasonable assessment of the situation considering the defendant's personal circumstances and attributes.
[62] While the average careful driver might not perceive imminent peril to his/her safety in similar circumstances, the reasonableness of Ms. Borges' fear must be considered in the context of her personal characteristics and attributes. In this regard, it is noted that, at the material time, Ms. Borges argued that she would regularly experience extreme episodes of stress and anxiety associated with driving a motor vehicle on controlled access highways (like the Queen Elizabeth Way). This psychological condition affected her ability to deal with emergency situations on the highway, either rationally or pragmatically.
[63] Furthermore, the defendant had experienced a similar circumstance of a cell-phone falling out of a holder and onto the floor of her vehicle prior to July of 2017. She indicated that she was able to deal with that circumstance as it took place on a residential street in Oakville, where she was able to calmly pull her vehicle over to the curb on a quiet side street. She expressed her specific fear of pulling over on a highway where vehicles would be passing her at high rates of speed, noting that if she did stop on the shoulder of the highway she would not have the courage to move her vehicle back onto the travelled portion of the highway, without someone to assist her in such a manoeuvre.
[64] Finally, it is noted that Ms. Borges' significant fear of highway driving, is informed by the fact that she was involved in a motor vehicle accident approximately 3 years prior to the time of her testimony in this proceeding. In this regard, she testified that this circumstance made her "more nervous" in operating her vehicle on a highway, rather than on a city street.
[65] When I balance the specific circumstances of Ms. Borges' driving experience on the Queen Elizabeth Way of July 22nd, 2017 with her general emotional difficulties relative to highway driving, her experience relative to cell-phones falling out of their holders as well as the fact that she was involved in a motor vehicle accident about 3 years ago, I am of the view that her perception of the slipping cell-phone incident as an incident that would put her in imminent peril or danger, is a reasonable one. I am persuaded by the totality of the evidence, assessed on the basis of the modified objective test, that the defendant has demonstrated an air of reality to this first requirement of the necessity defence.
[66] The second requirement of the defence is that "there must be no reasonable legal alternative to disobeying the law". I am obliged, by law, to assess this requirement through the lens of the modified objective standard. As stated above, I find that the defendant has failed to adduce sufficient evidence to prove this element on a prima facie basis. I have come to this conclusion based upon the fact that at the material time, Ms. Borges could have pulled off of the roadway and onto the shoulder in order to legitimately grab the phone and ameliorate her concerns relative to her own safety at that time.
[67] Ms. Borges would have been able to hold her cell-phone in her car when the car was off of the roadway and on the shoulder, as long as the vehicle was stopped and it was not impeding traffic. She did not, therefore, have to grab the phone while she was operating her motor vehicle on the highway, at a rate of speed of approximately 100 kilometres per hour, and thereby disobey the law. If the defendant had taken the step of pulling onto the left shoulder of the highway before grabbing the cell-phone, she would have lawfully held and interacted with her cell-phone at that time.
[68] When I consider the fact that at the material time, the defendant was driving her motor vehicle at highway rates of speed, in the left (or fast) lane of the Q.E.W., in the context of clear and dry weather conditions and light traffic, the option of pulling off of the highway and stopping the vehicle on the shoulder of the highway before handling the cell-phone, constituted a reasonable and legal alternative to the action which the defendant actually took in grabbing and holding the cell phone on the highway, for a period of 5 to 6 seconds.
[69] There is no question that at the material time Ms. Borges was frozen in terror at the prospect of the cell-phone falling to her feet, thereby creating an imminent emergency on the highway. However, immediately before she grabbed the phone from the dashboard mount, she appeared to be comfortable in her driving activities in the fast lane of the highway. Ms. Borges testified that she first noticed the cell-phone slipping down in the holder about 10 seconds prior to actually grabbing the phone. At this time, she was travelling in the left lane directly adjacent to the left shoulder of the highway.
[70] It would appear that at the material time, Ms. Borges had both the ability and the clear opportunity to turn left onto the shoulder at the time that she first noticed the phone slipping in the holder. She had the skills to turn her vehicle onto the adjacent shoulder and there was no evidence that she was experiencing significant anxiety in driving her vehicle on the Q.E.W., such that she was not able to execute a turning manoeuvre onto the left shoulder and stop on the shoulder; to address what she believed to be an emergency on the roadway.
[71] The defendant's illegal actions in grabbing the cell-phone while driving on the highway was not reasonable in the circumstances. There was a legal alternative to breaking the law. She could have and should have turned onto the left shoulder before touching the cell-phone in the mount. The defendant's actions in grabbing the cell-phone were taken in circumstances where the phone was about to fall out of the holder. Prior to this time, the defendant was calm and confident in her driving abilities and she could have logically turned onto the shoulder to deal with the slipping cell-phone.
[72] The defendant's personal attributes as a generally nervous highway driver are not enough to detract from the objectively reasonable steps that the defendant could have undertaken, to pull off of the roadway in order to safely handle the cellphone, which was the root of the perceived emergency on the highway. In my view, the defendant had a reasonable legal alternative to her illegal actions in grabbing the cell-phone while driving on the highway. She decided to break the law rather than taking the logical step of leaving the highway in order to deal with the cell-phone.
[73] In summary, the defendant had a reasonable legal alternative to the actions she took. She failed to take the legal course of action when it was available to her and there was, therefore, no necessity in taking the illegal course of action which she did.
[74] Finally, it is clear that the defendant failed to establish an air of reality to the third requirement of the necessity defence; the proportionality element, sufficient to put the defence of necessity into issue. In evaluating the seriousness of the competing harms, I have, as required by law, applied a purely objective standard.
[75] In this regard, I conclude that the harm which the defendant avoided; that being the possibility that the cell-phone could have fallen out of the holder and on to the floor of the vehicle, thereby affecting her ability to safely operate her vehicle, was outweighed by the harm inflicted; that being the danger posed to the public by the defendant's distracted driving activities.
[76] The key aspect of my decision in this regard is the fact that at the material time, the defendant not only grabbed the cell-phone to, ostensibly, prevent it from falling to the floor, but persisted in talking on the phone for a period of about 4 seconds. The defendant avoided the harm by grabbing the phone when she observed it slipping in the holder. She did not, however, place the phone down on the passenger seat, immediately after grabbing it. Instead, she decided to use the phone to continue to talk with her friend, in order to confirm directions and to assure her friend that she was fine despite the stress associated with the slippage of the cell-phone within the holder.
[77] The emergency was averted when Ms. Borges grabbed the phone from the holder. She should have immediately placed the phone on the passenger seat of her vehicle. She did not need to continue to hold it and talk into it.
[78] Ms. Borges inflicted greater harm to her safety and that of others, when she continued to hold the phone and talk into the phone, after she had extracted it from the holder. That act of extraction only took 1 to 2 seconds. On the other hand, by continuing to hold the phone and by continuing to use the phone to talk with her friend, her attention was drawn from her driving activities, thereby inflicting greater harm to the public than the harm which was initially avoided by saving the phone from falling to the floor.
[79] In summary, in the subject circumstances, the harm inflicted to the public related to the distraction caused by the cell-phone in the defendant's right hand and the defendant's utilization of it to talk with her friend, outweighs the harm to the accused and the public, which was avoided by preventing the phone from falling to the floor. In light of the facts of this case, the harm avoided and the harm inflicted are not of comparable gravity.
[80] As the defendant has failed to demonstrate an air of reality to the proportionality requirement, the necessity defence has not been placed in issue to be determined by the trier of fact. The defendant may not, therefore, rely on the common law of defence of necessity in order to be excused of liability for the subject offence.
(ii) The Defence of Due Diligence
[81] The subject offence is properly classified as an offence of strict liability. Accordingly, once the prosecution has proven all of the elements of the prohibited act, beyond a reasonable doubt, the fault element of negligence is presumed and the defendant will be found guilty of the regulatory offence unless he/she is able to establish, on a balance of probabilities that, in committing the offence he/she took all reasonable care.
[82] As stated in Regina v. Sault Ste. Marie, supra, the defence that the accused took all reasonable care (the defence of due diligence), "involves a consideration of what a reasonable man would have done in the circumstances". In the said decision, Dickson J. stated that the defence of reasonable care "will be available if the accused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent or if he took all reasonable steps to avoid the particular event".
[83] In Regina v. Kurtzman (1991), at paragraph 37, Tarnopolsky J.A. stated that "the due diligence defence must relate to the commission of the prohibited act, not some broader notion of acting reasonably".
[84] In Regina v. Stelco Inc., at paragraph 29, Whitten J. noted that "due diligence imports a standard of objective reasonableness, a honest subjective belief is not enough".
[85] In the case of Regina v. Courtaulds Fibres Canada, [1992] O.J. No. 1972 (Ont. Prov. Ct.), at pages 6 and 7, Fitzpatrick J. made the following comments pertaining to the law of due diligence:
Reasonable care and diligence do not mean superhuman efforts. They mean a high standard of awareness and decisive, prompt and continuing action. To demand more, would, in my view, move a strict liability offence dangerously close to one of absolute liability.
[86] In the case at bar, Ms. Borges submits (in the alternative to the defence of necessity) that in committing the subject offence she exercised reasonable care, by taking all reasonable steps to avoid the particular offence. She argues that she has proven this defence of due diligence, on a balance of probabilities, and therefore seeks to be excused of liability for the offence.
[87] I am of the view that the defendant has failed to prove the defence of due diligence, on the basis of the said civil standard of proof. My opinion in that regard is based upon the fact that immediately prior to the time that she grabbed the cell-phone while driving, Ms. Borges noticed that the phone was slipping down in the holder. At that time, she could have taken immediate steps to pull her motor vehicle off the roadway and stop on the left shoulder, in order to be able to legitimately handle her cell-phone and to prevent a possible emergency. Therefore, she failed to take all reasonable steps to avoid the particular event of holding a cell phone while driving a motor vehicle on a highway.
[88] Furthermore, the integrity of the cell-phone holder was a foreseeable issue, given that Ms. Borges had experienced an event in the past whereby her cell-phone had fallen out of the dashboard cell-phone holder, causing her ongoing stress and anxiety.
[89] During the course of her testimony, the defendant advised that on the morning of July 22nd, 2017, prior to embarking on her trip to Grimsby, she did not conduct an inspection of the cell-phone holder unit. Had she conducted such an inspection, she might have discovered that the spring mechanism for the holder had deteriorated, such that it could not continue to adequately hold a cell-phone. Without conducting an inspection of the holder unit prior to the start of her journey on that date, she failed to demonstrate the requisite decisive, prompt and continuing action needed to ensure that her cell-phone could be securely placed or mounted to the motor vehicle at all times and in the context of all adverse weather and road conditions.
[90] In her decision in Regina v. Charlebois, supra, at paras. 18 and 19, Madam Justice Leroy made the following comments pertaining to the operation of the defence of due diligence in the context of any reasonable steps taken by the driver of a motor vehicle to pull off the highway and stop, in order to handle or interact with a cell-phone:
In this case, I find that Ms. Charlebois did not take all reasonable care to avoid committing this offence. I agree with the prosecutor there were other options open to her, short of immediately picking up the device [cell-phone] from the floor. For example, even though the road was busy, she could have pulled over to the side of the road and parked before reaching down to pick up the device from the floor. That the device posed an immediate or greater danger than the potential for distracted driving while on the floor until Ms. Charlebois parked before picking it up is mere and unpermitted speculation.
Further, it could be said that all reasonable care would require Ms. Charlebois to place the device on the seat once she picked it up, instead of interacting with it as she did.
[91] For the reasons stated above, I am of the view that the defendant has failed to show, on a balance of probabilities that in committing the subject offence, she exercised due diligence by taking all reasonable steps to avoid the particular event. She is not, therefore, excused from quasi-criminal liability for the subject offence.
THE DECISION
[92] The prosecution has proven all of the essential elements of the actus reus of the offence of "drive hand-held communication device", contrary to subsection 78.1(1) of the H.T.A., to the standard of proof beyond a reasonable doubt.
[93] The defendant has failed to establish an air of reality to each of the elements of the common law defence of necessity. She is not, therefore excused of liability for the subject offence based upon that defence.
[94] The defendant has failed to meet her onus of proof in respect of the defence of due diligence, to the standard of proof on a balance of probabilities. She is not, therefore, excused of liability for the subject offence based upon that defence.
[95] Maria Borges is, therefore, found guilty of the subject offence and a conviction is registered.
Released: October 25, 2018
Signed: "Justice of the Peace Kenneth W. Dechert"