REASONS FOR JUDGMENT ON APPEAL

Date: October 30, 2018

Information No.: 2011 999 00 2052160Z

Ontario Court of Justice

Her Majesty the Queen v. Daniel Loewen

Before: The Honourable Justice G. Griffin

Location: Napanee, Ontario

Date of Hearing: October 30, 2018

GRIFFIN, J. (Orally)

Daniel Loewen was charged with drive handheld communication device contrary to section 78.1(1) of the Highway Traffic Act on March 15th, 2017.

On December 20th, 2017 the trial took place with the Justice of the Peace concluding that Mr. Loewen's evidence was not credible and that she was satisfied that the prosecutor had proven the case beyond a reasonable doubt and conviction was registered. Mr. Loewen has appealed the conviction on six separate grounds with the three main grounds of appeal being:

1. The Justice of the Peace erred in categorizing the offence as absolute liability;
2. The Justice of the Peace erred in failing to consider the exception set out in section 78.1(3); and
3. The Justice of the Peace erred in properly applying the test for credibility.

As this matter was commenced by a Form 1 certificate of offence the conduct of the appeal is governed by section 136 of the Provincial Offences Act which provides in section 136(2) that "an appeal shall be conducted by means of a review".

THE EVIDENCE

The Crown called one witness, namely Sergeant Martin of the Ontario Provincial Police while the defence evidence was comprised of Mr. Loewen's testimony.

Crown Evidence

Sergeant John Martin is a member of the OPP Highway Safety Division. On March 15th, 2017 he set up for distracted driving offences as there was a distracted driving campaign underway. He was in an unmarked police car at the Carton Metals entrance at the City of Quinte West. He was parked facing south monitoring north and southbound traffic.

At 11:23 he observed a gold Western Star Transport travelling northbound on Glen Miller Road. As it approached him he observed the driver pick up a large Smartphone from a holder on the dash in his right hand. The driver looked at the screen and he held it up approximately 14 inches from his face. The vehicle in question was right beside where Sergeant Martin was parked when he made the observations he did.

He pulled out behind the motor vehicle and stopped it on Highway 401. Daniel Loewen provided a valid driver's licence. Sergeant Martin noticed a large LG Smartphone back in the holder on the dash of the truck and it looked to be the same as the Smartphone Mr. Loewen had had in his right hand as he drove by Sergeant Martin where he had placed the police vehicle for the purposes of monitoring cell phone use.

He was in a slightly elevated location and there was nothing to interfere with his sight lines. He never lost sight of the vehicle in question from when he first observed it to when he saw the smart phone in Mr. Loewen's hand when he stopped him.

Mr. Loewen would have been travelling 40 to 50 kilometres per hour when he passed by and he would have been approximately 50 feet away from where Sergeant Martin saw Mr. Loewen holding the Smartphone. When he stopped Mr. Loewen the Smartphone was back in the holder on the dash which is where he had observed Mr. Loewen remove it from while he was driving, that is, reach up with his right hand and remove it.

The holder that the Smartphone was located in was on the dash of the vehicle. Sergeant Martin does not recall a large gearshift inside Mr. Loewen's vehicle. Sergeant Martin testified that it was not the gearshift he had observed Mr. Loewen touching as he actually watched Mr. Loewen remove the smart phone from the holder and hold it up in front of his face.

Sergeant Martin believes he saw Mr. Loewen with the Smartphone for two to three seconds. He never saw the screen on the phone. There may have been a light tint on Mr. Loewen's vehicle but it did not obstruct the officer's view. His police vehicle has tint as well but he can see clearly without any problems. He does not remember the gearshift of Mr. Loewen's vehicle as if, or if it glowed.

Defence Evidence

Mr. Daniel Loewen testified that he began working about 8:30 that morning and his cell phone was in the holder in the vehicle. He was at the water plant in Trenton at about 9 a.m. He waited until about 10 a.m. when a forklift showed up and unloaded his vehicle. He left the water treatment plant about 11:15 a.m. and pulled out onto the street when he was pulled over. He was on his way to Niagara Falls to pick up another load.

At the water treatment plant he had had his cell phone out of the holder as he walked up to the plant door to call someone to offload him. Once back in his truck he put the phone back into the holster. He never took it out after that time.

He had received instructions from dispatch that his next load was going to be in Niagara. He answered this call by use of his headset. The call came in and he answered by hitting the answer button on the phone which was sitting in the holster. The holster is on his dash of the vehicle about a foot to the right of his face. The holster is fastened to the dash.

The telephone call with dispatch was about three minutes. As he drove and talked with dispatch using his headset he approached a signal light and was turning left. He was shifting gears when the conversation came to an end so he reached over and pressed the off button with his finger.

His gear shifter is somewhat taller as it would be right at his shoulder when he's seated behind the wheel. Depending on which gear he is in it'd be 14 to 20 inches from him. About another 12 inches from the shifter is where the holster is on the dash which holds his phone. The shifter is black and the top of the knob of the shifter has a glow light on it.

He steers with his left hand and uses his right hand to shift gears. Around the city his right hand is on the shifter as he is required to slow down and speed up. On the day in question when he passed the officer his right hand would have been on the shifter. He was doing 40 to 45 kilometres an hour and he had not got his speed up to the speed limit at that point so he was shifting gears.

The phone in the holster is right in front of the shifter. When he drove by the police officer his phone was on the holster and when he was stopped the phone was on the holster.

The day in question was overcast. His windows would have had some slush on them as the day before there had been a snowstorm. He has a phone and a holster because it's the law. He did not see the officer parked at the location as he was watching the road, traffic lights and trying to get out of the city.

When the officer testified that he saw a phone being held 14 inches from the driver's face he could not have as Mr. Loewen testified he was holding the shifter, gearing up. Mr. Loewen testified he never had the cell phone in his hand as he was driving. His windows would have been up at that time and they do have a slight tint. The headset he was wearing is a Bluetooth that goes over his head.

In cross-examination Mr. Loewen allowed his cell phone does not look like a gearshift knob as his phone is flat and the gearshift is round. Mr. Loewen did have a photograph of the gearshift on his cell phone and it was shown in court with Mr. Loewen acknowledging that his cell phone does not look like the gearshift knob.

The Justice of the Peace examined the photograph on Mr. Loewen's cell phone. In re-examination more photographs from Mr. Loewen's cell phone were looked at, with the Justice of the Peace requesting that Officer Martin look at two of the photographs.

Officer Martin testified that when looking at the photographs, which would have been taken from the passenger's side looking into the cab of the truck and not the driver's side which is where he would have made his observations, he is certain that Mr. Loewen was holding a cell phone in his hand as he drove by Officer Martin's location.

Neither the cell phone, and more importantly, the photographs that were viewed by the two witnesses and the Justice of the Peace were made an exhibit on the trial and accordingly were not available for the purpose of the appeal.

THE DECISION OF THE JUSTICE OF THE PEACE

Her Worship began her Reasons for Judgment by stating "this is an offence of absolute liability, that means the law is mandatory". She then went on to review the evidence concluding that with respect to Officer Martin's evidence, "I accept the evidence as credible and reliable. The defendant's assertion of driving holding his gearshift seeks to contradict the credible, visual and reliable evidence. Upon consideration I cannot accept the defendant's evidence as I find he was not credible. The Court can only conclude that he was holding his hand-held communication device that was located in his truck. He testified from interest. Having heard all the evidence the Court is satisfied the prosecutor has proven a case beyond a reasonable doubt. A conviction will be registered."

MY ANALYSIS

Issue 1: Classification of the Offence

The Appellant respectfully submits that the Justice of the Peace erred in categorizing the offence as absolute liability offence. Section 78.1 reads as follows:

"78.1 (1) Hand-held devices prohibited - Wireless communication devices - 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."

This offence is obviously a public welfare offence as Justice Dickson as long ago as 1978 in the Supreme Court of Canada decision of R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299 made it clear that there is a presumption that public welfare offences are strict liability offences.

Certainly the Justice of the Peace in this case did not engage in the categorization process outlined by Justice Dickson when trying to determine if an offence should be classified as a strict liability or absolute liability offence.

In R. v. Chadwick, [2011] O.J. No. 3748, Justice of the Peace Anderson concluded that this offence is an absolute liability offence but did not engage in the categorization analysis set out by Justice Dickson.

In R. v. Marujo, [2015] O.J. No. 6683, Justice of the Peace Deckert pointed at the various trial level courts that have interpreted this offence as either being strict liability or absolute liability and then at paragraph 9 wrote as follows:

"In this case, neither the prosecution nor the defence made any legal arguments pertaining to the issue of the categorization of the offence. In particular, I did not receive any submissions from the prosecutor as to why 78.1(1) of the Highway Traffic Act should be interpreted in favour of an absolute classification. The presumption that this public welfare offence is one of strict liability has not, therefore, been rebutted."

Certainly absent some proper analysis of the issue of how the offence should be categorized, I would agree with Justice of the Peace Deckert that the presumption that a public welfare offence should be categorized as one of strict liability unless properly rebutted is appropriate.

As Justice MacPherson in the Ontario Court of Appeal writes at paragraph 43 of R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732:

"The second important feature of Sault Ste. Marie is its strong presumption in favour of strict liability in an interpretive contest between strict and absolute liability. This presumption has been affirmed in subsequent case law, including Chapin and Tetreault, and deepened by the Supreme Court's post Sault Ste. Marie declaration the coupling absolute liability offences with the punishment of imprisonment violates section 7 of the Canadian Charter of Rights and Freedoms. See reference re Motor Vehicle Act (British Columbia) section 94(2), [1985] 2 S.C.R. 486."

In R. v. Grech-Vennare [2013] O.J. No. 2387, Justice of the Peace Opalinski in finding section 78.1(1) to be an absolute liability offence, did engage in a categorization process and concluded it was an absolute liability offence, however the Justice of the Peace made significant use of the textbook, The Law of Traffic Offences, 3rd edition, Carswell, see 2009 by Hutchison, Rose and Downes but she did not consider in my view the fundamental principle set out in the Ontario Court of Appeal such as in such decisions as R. v. Kanda, 2008 ONCA 22, 88 O.R. (3d) 732 and R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091, that to displace the presumption of an offence being a strict liability offence requires not that it could be an absolute liability offence but that the correct interpretation requires that it can only be an absolute liability offence.

In R. v. Srecko [2016] O.J. No. 4329, Justice of the Peace Kowarsky concluded that section 78.1(1) of the Highway Traffic Act is an absolute liability offence and once again does not refer to the Ontario Court of Appeal decisions of R. v. Kanda 2008 ONCA 22, 88 O.R. (3d) 732, and in particular Justice MacPherson's comments found at paragraph 20 through 26 which makes clear, contrary to Justice of the Peace Kowarsky's thoughts, that Part 6 of the Highway Traffic Act has illustrations of three categories of regulatory offences.

Justice Doherty in the Ontario Court of Appeal decision of R. v. Raham 2010 ONCA 206, [2010] O.J. No. 1091, at paragraph 34 writes as follows:

"The analytical template described in Sault Ste. Marie sets out four 'primary considerations' to be used when determining the proper categorization of the offence: The overall regulatory pattern of which the offence is a part; the subject matter of the legislation; the importance of the penalty; and, the precision of the language used."

When one considers the Ontario Court of Appeal decisions of Kanda and Raham a consideration of the overall regulatory pattern does not assist in the classification of drive hand-held communication device as strict or absolute liability.

The subject matter of the legislation, namely preventing distracted driving, in my view supports the classification of the offence as strict liability. Such an approach ensures that a person driving a motor vehicle must not engage in behaviour that distracts their attention from the serious task of driving but does not punish the driver who can establish a defence of due diligence. I would note however though, it would be very rare that a person would be able to prove they took all reasonable care to avoid the prohibited act of holding or using a handheld communication device.

The penalty pursuant to section 78.1(6.1) is a fine of not less than $300 and not more than $1,000 with 3 demerit points. However, as of January 1st, 2019, there are amendments in place that will see the fine increase to a minimum $500 and not more than $1,000 for a first offence and up to $3,000 for a third offence. More importantly there will be automatic driver's licence suspensions upon conviction even for a first offence.

The belief on the part of the provincial legislature that automatic driver's licence suspensions will soon be required as part of the penalty provisions signifies the serious nature of the offending conduct. The importance in the penalty in my view supports the classification of the offence as strict liability.

The precision of the language used really is not determinative of whether the offence shall be classified as absolute or strict liability. Upon careful consideration I would adopt paragraph 38 of Justice Doherty's decision of R. v. Raham, 2010 ONCA 206, [2010] O.J. No. 1091:

"In this case, the presumption in favour of a constitutional interpretation means that if the offence charged against the respondent can reasonably be interpreted as a strict liability offence it must be so interpreted even if it could also reasonably be interpreted as an absolute liability offence."

I therefore conclude that the Justice of the Peace did err when she categorized the offence as an absolute liability offence as it should be categorized as a strict liability offence.

In both the decisions of the Ontario Court of Appeal, namely R. v. Raham 2010 ONCA 206, [2010] O.J. No. 1091 and R. v. Kanda, 2008 ONCA 22, 88 OR (3d) 732, when it was determined that the offence under consideration should be categorized as a strict liability offence rather than an absolute liability offence new trials were ordered so an opportunity to advance a due diligence defence could take place if so desired.

Issue 2: Failure to Consider Section 78.1(3) Exception

In this case the appellant has also raised the concern that the Justice of the Peace erred in failing to consider the exemption under section 78.1(3). Section 78.1(3) reads as follows:

"78.1(3) Hands-Free mode allow - 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."

The Justice of the Peace made no mention whatsoever in her Reasons for Judgment on this issue. I agree that the appellant was entitled to know whether she considered this exemption as it was his evidence at all times he was using the device in a hands-free mode.

Well it is certainly clear the Justice of the Peace did not find the appellant to be credible and that she was only able to conclude that he was holding his handheld communication device as he testified from interest such a conclusionary finding does not assist the appellant in determining whether she considered section 78.1(3) or why his evidence was not believed.

Issue 3: Credibility Assessment

The Supreme Court of Canada in the 2010 decision of R. v. Laboucan, 2010 SCC 12, [2010] 1 S.C.R. 397 is helpful in this regard. At paragraphs 13 and 14 Madam Justice Charron wrote:

"Counsel for Mr. Laboucan argues that it is inherently wrong in every case to consider an accused's interest in the outcome of the trial, as no useful inference can be drawn from that fact. She therefore urges the Court to adopt an absolute prohibition against considering the accused's motive to lie in assessing his or her credibility as a witness. In most cases I would agree with counsel that this factor is simply unhelpful and as a general rule triers of fact would be well advised to avoid that path altogether, lest they unwittingly err by making the impermissible assumption that the accused will lie to secure an acquittal. However, I would not adopt an absolute rule as proposed..."

In this case the Justice of the Peace did not provide any reasons as why she did not believe the appellant when he testified, that he was never holding the cell phone as it was in the holster when he drove by Officer Martin, other than to use her words "he testified from interest".

Unfortunately the effect of such language in the absence of any clear indication of why she disbelieved the appellant leads to a conclusion that the presumption of innocence was seriously diminished. That is, as the appellant, as the accused, should not be believed as he is testifying from interest so he will be untruthful so as to be found not guilty.

CONCLUSION

In light of the characterization of the offence as an absolute liability offence rather than a strict liability offence, as well as the failure to address clearly the exemption being advanced by the defence, as well as the inadequacy of the reasons as to why the defence evidence was not believed, along with the concern of whether there was a denial of the presumption of innocence, the appeal against conviction is allowed and a new trial should take place to satisfy the ends of justice and a new trial is ordered before a Justice of the Peace other than the Justice of the Peace who conducted the trial on December 20th, 2017.