Court Information

Ontario Court of Justice

Date: 2019-05-23

Court File No.: Niagara Provincial Offences Court

Parties

Between:

Her Majesty the Queen

— AND —

Alan Templain

Judicial Officer and Counsel

Before: Justice of the Peace Mary A. Shelley

Heard on: 3 April 2019

Reasons for Judgment released on: 23 May 2019

Counsel:

• Phillip Riley, for the Crown
• Mark Evans, for the defendant Alan Templain

Reasons for Judgment

JUSTICE OF THE PEACE SHELLEY:

[1] Alan Templain was charged on 3 September 2017 for driving with a hand held communication device. The evidence before the court comes from Sergeant Irving of the NRPS and Mr. Templain who elected to give evidence in his defence.

[2] There is no dispute as to date time and place or that Mr. Templain was holding something in his left hand.

[3] When he was pulled over by Sergeant Irving, there was a conversation. In my view, what transpired was a classic breakdown in communication. The Sergeant asked if Mr. Templain was making an emergency call which would be an exception to section 78.1 (1). Mr. Templain, who saw the officer when Mr. Templain was parked and speaking on the phone, answered the Sergeant honestly. No, he was talking to his brother. The Sergeant thought that Mr. Templain meant he was talking on the phone while he was driving into or in the tunnel. That was consistent with the Sargent's observations. The Sergeant issued the ticket.

[4] It wasn't until later that Mr. Templain examined the ticket and found that the offence alleged had taken place at East Main and the 406, and not in a parking lot where he actually had the conversation with his brother on the cell phone. His evidence was that he wasn't talking on the phone at that location in the tunnel. What he believes the officer saw was him, as he entered the tunnel at East Main and the 406, holding a speaker device that he uses with his phone. It had fallen onto the floor. This device, he explained, mounts on the vents of the dashboard with a clip. The phone affixes to the clip by a magnet. The speaker can be activated with the touch of a button in order to use the cell phone whilst driving.

[5] Sergeant Irving said he initially observed Mr. Templain from behind as he drove his motor vehicle on East Main toward the tunnel. He said he saw Mr. Templain through the rear window of Mr. Templain's car operating the motor vehicle with an object in his left hand being held to his left ear. In order to confirm his suspicions of what he thought he saw, he pulled into the right lane and drove next to Mr. Templain. He observed Mr. Templain through the cruiser driver's side window and Mr. Templain's passenger window. His evidence was that the cell phone was to the left ear and that Mr. Templain's lips were moving. He then dropped back behind Mr. Templain and pulled him over. On cross, Sgt. Irving acknowledged that he made no observations of Mr. Templain until in the tunnel. He agreed there was something in Mr. Templain's left hand in the tunnel. He didn't take a photo of any device. In re-examination Sgt. Irving acknowledged that he didn't see a cell phone after the stop or to be more precise, he didn't have it noted and he doesn't recall.

[6] This charge is a strict liability offence. On the actus reus, has prosecution proven the actues reus of the charge beyond a reasonable doubt? R. v. W.D. needs to be applied to the evidence heard from Sergeant Irving and Mr. Templain. Although it is open to me to find that both are credible, when it comes to R. v. W.D. and the test as it is to be applied, I need go no further than the first step. I accept the evidence of the accused. He was holding a speaker that he used as a hands free cell phone device. He was completely candid and credible. The officer's evidence leaves a reasonable doubt in my mind that Mr. was talking on a cell phone. The officer said he made his observations in the tunnel. He made his observation from Mr. Templain right hand side that he was holding something in his left hand. These observations were made across the width of the Mr. Templain's vehicle of something on Mr. Templain's left hand side, while driving in a tunnel. He didn't see any type of cell phone after pulling Mr. Templain over. I'm left with a reasonable doubt that Mr. Templain was talking on a cell phone.

[7] But the story doesn't end there.

[8] Like R. v. Rasty, [2017] O.J. No. 4606, and R. v. Charlebois, [2016] O.J. No. 7059, Mr. Templain had something in his hand. In this case, a wireless device capable of connecting with his cell to enable him to at least, receive calls made to his hand held wireless device.

[9] In Rasty it was an iPod entertainment device and the defendant at trial admitted she was listening to music. In Charlebois, the defendant admitted at trial that a wireless speaker had fallen from her visor and she retrieved it from the floor.

[10] Prosecution submits that I can find Mr. Templain guilty of the lesser included offence of 78.1 (2). Prosecution relies on R. v. Rasty. In that decision on OCJ Appeal, the evidence of the defence was, as I've already said, that she was holding an iPod; an entertainment device; she was listening to music. In Rasty, prosecution then asked for an amendment on the certificate to s. 78.1 (2). The justice of the peace didn't amend, but convicted under s. 78.1 (2) as a lesser included offence. She was upheld on Appeal. But what the judge said upon upholding the conviction was that section 78.1 (1) and section 78.1 (2) "seem so intertwined that I cannot see this not being a lessor included offence".

[11] The case before this court is different. No amendment was sought. In these circumstances, I can't find Mr. Templain is guilty of a lesser included offence of holding an entertainment device as contemplated in that section. This was a speaker device which on its own, doesn't do anything.

Legal Framework

[12] It is worthwhile at this point to review the Law with regard to cell phones, wireless communication devices and prescribed devices.

[13] The Legislation Act section 64 which sets out that Acts and Regulations under Acts shall be given liberal interpretation so as not to defeat the purpose of the legislation.

[14] The applicable section with regard to exceptions for pressing buttons is under the regulation called

[15] Display Screens and Hand held devices O.Reg. 366/09

Exemption for pressing buttons is found at section 14:

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. (the emphasis is mine)

Section 78.1 of the Highway Traffic Act reads:

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. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

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. 2009, c. 4, s. 2.

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. 2009, c. 4, s. 2.

[16] We see that there is no definition of a hand held wireless communication device or prescribed device in the Act or the Regulation.

[17] Use of hand held devices is prohibited. But, there are exceptions.

[18] In Charlebois at trial, the justice of the peace didn't accept the officer evidence. But, she found that the speaker device and the actions of the defendant while she was driving and "scrolling" through options on her wireless speaker didn't fall into any exceptions allowed under regulation. She convicted and was upheld on Appeal.

[19] Quoting from Charlebois, Madam Justice LeRoy, on appeal, beginning at paragraph 12:

12 While I agree with the agent for Ms. Charlebois who argued, "Motorists have been encouraged by the authorities to utilize a Bluetooth and not use or handle cell phones while driving, in accordance with the law," in my view, the intent of the legislation goes beyond merely precluding hand-held cell phone use. I come to that conclusion because the legislation could have easily included the words "cell phone" or defined the words "hand-held wireless communication device" to include or to be limited to cell phones.

13 The question is was the legislation intended to include a Bluetooth device like the one in this case, and as used by Ms. Charlebois in this case. It could be difficult initially to come to that conclusion, given the words of the Minister introducing the legislation, who clearly stated that a Bluetooth device set to work with a cell phone will be permitted. However, his words do not form part of the legislation, which used instead the broad and undefined language "hand-held wireless communication device". As I understand it, the Bluetooth device in this case is both a speaker and a microphone that permits the driver to hear a telephone caller and in turn to speak to the caller. It thereby permits the driver to hear and respond in a hands-free manner to phone communications received and transmitted to a cell phone. The Bluetooth device itself is not receiving and transmitting the call. Rather, it is allowing the call to flow through it and to be amplified for the driver. It allows the driver's hands to be free of the cell phone and thus free to drive without that distraction in hand. Without the cell phone wirelessly connected to it, the Bluetooth device has no power to receive or transmit anything.

14 In this case, however, it was connected to the cell phone and, in that way, it was capable of notifying the driver the cell phone was receiving or transmitting a call. It is, therefore, a device used to facilitate communication. It is, therefore, broadly speaking, a communication device. While it is intended to be used hands-free and while the intent of the legislation is to permit it being used under those circumstances, it can be used as a hand-held device and when it is, in my view, it contravenes the legislation. In my view, when Ms. Charlebois took that device into her hand, held it and interacted with it, even briefly, by pushing buttons, she was using a wireless communication device and it was then hand-held". (end quote)

[20] For our purposes, Mr. Templain picked up the speaker and held it. It may seem that his actions are de minimis. But we know from R. v. Kazemi, [2013] ONCA 585, that holding is the issue. The ordinary meaning of holding does not require sustained contact.

[21] In Charlebois, on appeal, Madam Justice LeRoy held that the exemption created by the regulation contemplates the Bluetooth device in this case. The device is a wireless communication device. Although it can't be used on its own, its purpose is to communicate wirelessly, the calls that are received by another wireless device.

[22] In keeping with that, I find that the wireless speaker that Mr. Templain was using was, in the broad interpretation of the Highway Traffic Act and the O. Reg. 366/09, a "wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications" and "wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication".

[23] Further to that, O. Reg 366/09 section 14 requires for a device to be exempt while driving a motor vehicle using a wireless communication device it must be "placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion". Although Mr. Templain had the device attached as it was supposed to be, it was still capable of moving while the car was in motion. He hit a dip or a bump and the device fell. He picked it up. It was not secure.

[24] There was no direct evidence before this court that the speaker was, at the time Mr. Templain was holding it, connected to his cell and ready for use in the way that he explained that it worked in his evidence. There was evidence that he had been on the phone earlier. There was evidence that the device was positioned for use when it fell. Mr. Templain's evidence was that he bought this device specifically to use it so he wouldn't get charged for using his cell phone while driving. In my view, it is reasonable to infer that when the speaker fell off of the clip and it was held by Mr. Templain, the speaker was connected to the phone in order for Mr. Templain to use it in connection with his phone.

[25] And what if that inference isn't made? If this speaker was not connected and not capable of transmitting wireless communication, how is it any different than a donut, a pack of cigarettes or as defence submitted, a cup of coffee?

[26] Here's how it's different. In R. v. Pizzurro, [2013] ONCA 584, the respondent never disputed that the cell phone that he was holding was a wireless communication device. But, it wasn't working; not capable of transmitting anything. The Court of Appeal makes a point of referencing subsection (7) of section 78.1 HTA which gives the Minister the power to make regulations prescribing devices for the purposes of s. 78 (1). In a way, subsection (7) contemplates that technological advancements may outpace advancements in the Law and that those technological advancements should not defeat the intention of the legislature which is to ensure road safety and driver attentiveness to driving.

[27] At paragraph 9 & 10, the Court of Appeal gets to the bottom line: Judge Goudge speaking for the Court:

9 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 cell phones. 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, cell phones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them.

10 Moreover, to impose the requirement that a cell phone 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.

[28] In the case before this Court, this is a speaker used to connect to the hand held device in order to use it hands free. Mr. Templain brought it with him to court and showed it during his evidence. It works with the push of a button. Whether the speaker was connected to his phone is beside the point. "To impose the requirement that it was capable of receiving or transmitting would be unreasonable both for enforcement and prosecution. The legislature could not have intended that result". I find it to be a wireless communication device. Holding it isn't permitted.

[29] For all of those reasons, I'm satisfied beyond a reasonable doubt that he is guilty of the actues reus driving while holding a wireless communication device.

Due Diligence Defence

[30] This is a strict liability offence. Having found that the actues reus is made out beyond a reasonable doubt, the question then becomes has defence proved on the balance of probabilities, he was duly diligent and took all reasonable precautions in the circumstances to prevent impugned act? I find as follows, the speaker that Mr. Templain had attached to the vent on his dashboard was not secure contrary to O. Reg 366/09, s 14. The last sentence of that section is conjunctive using the word 'and' two times. Mr. Templain's speaker was not "placed securely in or mounted to the motor vehicle so that it did 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". Mr. Templain picked up the speaker when it fell and held it. It was open to him to leave the speaker where it was until he exited the tunnel and could safely pull over to retrieve it. That would've been the reasonable, duly diligent thing to do in the circumstance. Defence has not proved on the balance of probabilities that he was duly diligent in the circumstances.

Conviction

[31] For those reasons, there is a finding of guilt and a conviction registered.

Released: May 23, 2019

Signed: Justice of the Peace M. A. Shelley