Court Information

Date: September 3, 2019

Ontario Court of Justice

Between: Her Majesty the Queen — and — Franchino DeLuca

Before: Justice W. Rabley

Heard: August 22, 2019

Reasons for Appeal Judgment: September 3, 2019

Counsel

D. Dyer — Provincial Prosecutor

M. Pasquale — for Franchino DeLuca

Judgment

RABLEY J.:

[1] Franchino DeLuca was convicted after a trial held by Her Worship Justice of the Peace Radulovic of the offence of operating a motor vehicle while holding a handheld communication device.

[2] The Appellant submits that the Justice of the Peace did not have a sufficient basis to make a finding of guilt because the Prosecution had not proven beyond a reasonable doubt that the device observed by the investigating officer was a cell phone.

[3] On the day of the offence, Constable Sturgeon was on routine patrol when he passed by Mr. DeLuca's motor vehicle. The officer observed Mr. DeLuca for 5 seconds while the Defendant had his head down looking at the bottom of his steering wheel at "what appeared to be a cell phone or hand-held communication device". During this time, the officer also observed Mr. DeLuca occasionally look up in order to follow the road.

[4] Constable Sturgeon stopped the vehicle 30 seconds to a minute later and he observed a Blackberry cell phone located on the centre console attached to a cord when he approached Mr. DeLuca's vehicle.

[5] Constable Sturgeon testified that he could not see whether or not the screen of the device was lit and he offered that he did not see Mr. DeLuca scrolling on it with his thumbs. These factors did not alter his opinion.

[6] The officer was not asked and did not testify as to whether or not anything like a handheld device other than the Blackberry was found in the motor vehicle.

[7] When challenged by counsel as to how certain Constable Sturgeon was that the device that he observed was a cell phone, the officer stated that he was "100% sure". In support of his opinion, the constable testified that he was very familiar with cell phones and that he had been handling them for approximately 19 years.

[8] Justice of the Peace Radulovic found the officer to be a credible and reliable witness. Mr. DeLuca elected to not call evidence. The only evidence as to what Mr. DeLuca had in his hand at the time was that of Constable Sturgeon. The Court found the Appellant guilty.

[9] Counsel for Mr. DeLuca submits that the Justice of the Peace erred in concluding that the Prosecution had proven beyond a reasonable doubt that the item in the Appellant's hand was a cell phone. His argument is that the officer was equivocal about what he observed when he first stated in evidence that he saw what "appeared" to be a cell phone.

[10] The Appellant relies upon the decision of Judge Allen in the case of R. v. Mina, [2016] O.J. No. 7308. That case also dealt with a hand held device. His Honour found that the officer had testified that the device he observed "appeared to be a cell phone." Judge Allen concluded "That should have been the end of the matter."

[11] The Appellant's submission is that the language used by Constable Sturgeon is the same as that used by the officer in R. v. Mina. Therefore, the Court should come to the same conclusion as Justice Allen.

[12] With respect, I do not agree. In the Mina case, the defendant testified that the device in her hand observed by the investigating officer was an iPod and not her cell phone. She brought the Ipod, as well as her pink cell phone to the court to buttress her testimony.

[13] In my view, it is clear that Justice Allen was of the opinion that the officer was uncertain when he testified that the device he observed "appeared" to be a cell phone. From a review of the evidence in that case, it would appear that there was good reason for His Honour to draw such a conclusion.

[14] In this case, the only evidence regarding the device in Mr. DeLuca's hand was given by Constable Sturgeon who was 100% certain that it was a cell phone. The fact that a Blackberry cell phone was observed within a very short period of time on the console of the vehicle and that Mr. DeLuca did not seem to have anything else in his hands or within clear visibility of the officer to suggest that the device was something else, gives support to the conclusion drawn by the officer at the scene.

[15] The fact that the officer was being careful in his language when making his observations does not undermine his opinion. In my view, there is nothing wrong with a police officer making an observation and describing it in such a manner that leaves open the possibility that he may have observed something else. It is for a court to assess the officer's credibility after cross-examination and a review of the surrounding circumstances to determine if the officer's opinion was a reasonable one.

[16] The Defendant chose not to give evidence. The onus always rests with the prosecution to prove the case beyond a reasonable doubt, but trial courts are entitled to make reasonable inferences and look at the surrounding circumstances.

[17] In this case, Mr. DeLuca had his head down looking at the device. He was looking up from time to time to ensure that he stayed on the roadway. I would take judicial notice that this is common behaviour for someone who is looking at a cell phone while driving. A Blackberry cell phone was found within reach of Mr. DeLuca at the time the motor vehicle was stopped which had been initiated by the officer within 30 seconds to a minute after his initial observations. Constable Sturgeon was familiar with cell phones and was 100% certain that Mr. DeLuca had a cell phone in his hand.

[18] The issue for me to determine in this case is whether or not it was open for Her Worship Radulovic to find that the device was a cell phone and whether the Prosecution proved this fact beyond a reasonable doubt. Her Worship found that the officer was a credible and reliable witness and accepted his opinion that the device in Mr. DeLuca's hand was a cell phone. I am of the view that there is no reason to conclude that such findings were inappropriate, especially in light of the surrounding circumstances and the findings of fact that Her Worship made.

[19] With great respect to the able submissions of counsel for Mr. DeLuca, in my view, Justice of the Peace Radulovic was correct in making the findings that she did and they are supported by the evidence before her. The Appeal will be dismissed.

Released: September 3, 2019

Justice Wayne G. Rabley