R. v. Fernandes-Salema, 2019 ONCJ 67

CITATION: R. v. Fernandes-Salema, 2019 ONCJ 67

DATE : February 5, 2019

HER MAJESTY THE QUEEN

v

Jorge Fernandes-Salema

Ontario Court of Justice

Toronto, Ontario

A. Katsev for the Prosecution

C. Zenko Agent for the Defendant

Before: J. Opalinski J.P.

Heard: September 11, 2018

Delivered: February 5, 2019

INTRODUCTION:

1. The defendant, Jorge Fernandes-Salema (hereinafter referred to as the defendant) is charged on the 24^th^ day of September, 2017 at 3:14 pm., at 2243 Kipling Avenue, in the City of Toronto, with the offence of drive hand-held communication device contrary to section 78.1(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8.

2. The defendant entered a plea of not guilty on September 11, 2018. The court heard evidence from both Toronto Police Officer Brian Rendon and the defendant.

CHARGES:

3. Section 78.1(1) of the Highway Traffic Act, supra, provides that:

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.

ISSUE:

4. The issue before the court is: whether or not the defendant did drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages in contravention of section 78.1(1) of the Highway Traffic Act, supra. Specifically, when the cell phone is in a mounting device and is being used and the mounting device is being held, does this contravene the said section?

ARGUMENT FOR THE PROSECUTION:

5. The prosecution submits that the officer’s evidence is clear and concise. While driving one car length behind the defendant, he observed the defendant operating a motor vehicle while holding a black cellular device and then observed him to put it down onto his lap. When the defendant was stopped, the black cellular device which was in his lap, was the same device that the officer had observed in the defendant’s hand. There was no mounting device in the car when the officer pulled the defendant over. The defendant was in contravention of section 78.1(1) of the Highway Traffic Act, supra.

ARGUMENT OF AGENT FOR DEFENDANT:

6. The agent for the defendant has made an argument that the officer believed that the object in the defendant’s hand was a smart phone and that he believed the defendant to be Face Timing as the object was facing the defendant, the screen was, lit, and due to the height of the object and how the defendant was holding it, he must have been doing so.

The defendant’s black device had fallen from the air conditioning unit where it was mounted and he moved it to the passenger’s seat. The phone and mounting device had never dislodged from each other. Pursuant to R. v. D.W. the court should dismiss the charges against the defendant as it is the prosecution’s responsibility to prove beyond a reasonable doubt that the object in question was a handheld communication device and that it was this object that was in the defendant’s hand while he was operating his motor vehicle. The prosecution has not met this onus.

EVIDENCE FOR THE PROSECUTION:

7. The court heard evidence from Toronto Police Officer Brian Rendon.

8. The evidence of Officer Rendon may be summarized as follows:

(a) On September 24th, 2017 at approximately 3:14 pm, Officer Rendon was traveling northbound on Kipling Avenue in lane number two. There was a blue Caravan motor vehicle with clear windows that had no tint in front of him, driven by a male driver wearing a white shirt. The officer was no more than one car length behind the defendant’s motor vehicle.

(b) The officer observed the driver of the vehicle, being the defendant, holding a cell phone in his right hand, raise it up to the height of his shoulder. The phone was facing towards him and he believed the defendant to be Face Timing as the screen was facing him. Upon activating his lights, the defendant was seen to lower the phone toward his lap.

(c) As the officer approached the driver’s door, he observed a black smart phone, which was rectangular in shape, and was most likely either an Iphone or a Samsung, to be on the driver’s lap.

(d) The defendant was asked for his driver’s licence, insurance and ownership and was able to identify himself with an Ontario driver’s licence. The vehicle he was operating was a blue Dodge Caravan with a licence plate number of BZBL 205.

(e) The Officer indicated when the DVD was played, that one can see in the DVD that the driver has raised his hand and he believes that the driver had a cell phone in his hand, which is raised at his shoulder level facing him. The phone is raised and facing the driver who continues to be on the phone for a period of twelve seconds, until the officer activated his lights, which were activated eight seconds after the defendant was first observed to be holding the cell phone. At that point, the DVD shows the driver lowering the phone in front of him. The car is pulled over and the phone is down.

(f) In cross examination, the officer precisely described that the in car camera is mounted to the dashboard in the middle of the motor vehicle. What the camera records is not the identical view that the officer has as he is seated taller than the in car camera and as such was able to see that the defendant was wearing a white shirt.

(g) However, the video did clearly show that the cell phone went up, and, then once the vehicle was stopped the cell phone went down. If the cell phone were mounted, it would have been stationary and could not have been moved. A mounted cell phone does also emit light, but it does not move for safety reasons.

(h) The officer also indicated that he believed the defendant to be Face Timing as the screen was facing him and his head was turned toward and looking at the phone. Consequently, the officer concluded that the defendant was either Face Timing or working on something on his cell phone. The DVD shows that the cell phone is above the dashboard. For it to have been mounted in a stationary position, it would have to have been mounted on the windshield and not the dashboard. From the distance in which the officer observed the defendant, he was able to see that the defendant was looking toward the phone, but was unable to read any text messages or see any photos or anything else that was on the screen. The officer did not see any mounting device in the defendant’s vehicle, not on the window or anywhere else.

EVIDENCE FOR THE DEFENCE:

9. The defendant’s evidence may be summarized as follows:

(a) On September 24^th^, 2017, he was moving to a new house located at 2257 Kipling Avenue. He was driving a blue Dodge Caravan.

(b) There is a supporting device for his phone on the exit of his air conditioning vent and it was falling. As a result, the defendant took it with his hand because it was falling from the supporting device. It was black in colour. The defendant then elaborated that the device keeps his phone in place and he was taking it out of the exhaust of the air conditioning duct because it was falling down and coming off. He had the phone in his hand because it was falling down and he had to grab the phone. He does have a Bluetooth in his car, which is in the sunscreen that you pull down from the car.

(c) In cross examination, the defendant confirmed that he took the phone and the device into his hands to place it on the passenger’s seat. When he was ordered to stop, the defendant was grabbing the phone because it was falling. In re-examination, the defendant first stated that the phone and mounting device were not together, and then clarified that the phone and supporting device were together when he put them on the passenger’s seat.

THE LAW:

10. The defendant is charged with the offence of drive hand-held communication device pursuant to section 78.1(1) of the Highway Traffic Act, supra.

11. CATEGORIZATION OF OFFENCE – Prior to continuing any meaningful analysis of the case law with regard to the offence of drive hand-held communication device, the court must determine which category of offences this offence falls into.

12. R. v. Sault Ste. Marie (City), 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299, sets out the three categories of offences. These three categories of offences are mens rea, strict liability and absolute liability. Dickson J stated:

13. “Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be proved by the prosecution either as an inference from the nature of the act committed, or by additional evidence;

14. Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited act prima facie imports the offence, leaving it open to the accused to avoid liability to proving that he took all reasonable care. This involves consideration of what a reasonable man would have done in the circumstances. The defence 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. These offences may properly be called offences of strict liability.

15. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.”

16. This court must ask the question: Is the offence that the defendant is charged with a mens rea, strict liability or absolute liability offence? As Justice Dickson points out in R. v. Sault Ste. Marie, supra, for an offence to be categorized as a mens rea offence it should have contained words that purport some mental element such as ‘willfully,’ ‘with intent’, ‘knowingly’ or ‘intentionally’. These are typically criminal offences whereas public welfare offences are prima facie strict liability offences. While the majority of public welfare offences are presumed to be strict liability offences, in the absence of language to the contrary, there are some offences that are still referred to as absolute liability offences.

17. Hutchinson, Rose & Downes in The Law of Traffic Offences 3^rd^ Edition, Carswell c. 2009, state that while there is a presumption that regulatory offences will be classified as strict liability offences, ‘in determining whether an offence ought to be interpreted as one of absolute liability rather than strict liability, the courts will examine: the overall regulatory pattern adopted by the Legislature; the subject matter of the legislation; the importance (or severity) of the penalty; and the precise language used in the statute creating the offence.’ (at p. 17) Further ‘if the language would seem to invite no possible exception to enforcement this will speak in favour of a finding of absolute liability. If it is impossible or impracticable to enforce the prohibition if the offence is classified as strict liability, then the courts will be inclined to accept the prosecutor’s contention that it is properly considered to be an offence of absolute liability’. (at p.17-18) The more complex the language of the statute, the more inclined the court will be to find the offence a strict liability offence which gives the defendant an opportunity to raise a defence of due diligence. ‘If universal compliance is essential or important to the proper operation of the regulatory regime in question, then the court will be more inclined to conclude that the offence is one of absolute liability.’ If there is a possibility of imprisonment, then the offence should not be categorized as an absolute liability offence. If the legislative language clearly sets out that an offence is an absolute liability offence, this will be sufficient to make it so, although the mere use of such words as shall do not in and of itself make an offence an absolute liability offence. (at p. 18)

18. The court in the decision of R. v. Chadwick, [2011] O.J. No. 3748, found that the wording of the section purports that the offence is an absolute liability offence and as such ‘the prosecutor is only required to prove, beyond a reasonable doubt, that the defendant committed the offence of driving with a hand-held device’. (at para 8)

19. At the same time the court in the decision of R. v. Petrovic, [2012] O.J. No. 4185, held a contrary position citing that section 78.1(1) should be regarded as a strict liability offence. The court merely adopted the position taken in Regina v. Marrocco, 2012 ONCJ 535 (Ont. C.J.) (at para 15), and the position reflected by the Supreme Court of Canada in Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12, whereby it was held that “absolute liability offences still exist, but they have become an exception requiring clear proof of legislative intent”. (at para 13)

20. If one looks at the 4 points referred to by Hutchinson, Rose & Downes in The Law of Traffic Offences supra, the wording of section 78.1(1) of the Highway Traffic Act supra, at the time of the offence, would invite no possible exception to enforcement; it is not complex in its nature; the penalty does not carry with it the possibility of incarceration; and the precise language of the legislation does explicitly use wording such as ‘shall’ which purports an offence of absolute liability when read in its totality.

21. Hutchinson, Rose & Downes in The Law of Traffic Offences supra at p. 14 further point out that while the prosecution must prove beyond a reasonable doubt the actus reus of the defendant and defences that operate ‘to negate the mental aspect of the offence such as mistake of fact have no application’, the defendant may have the benefit of calling certain defences which ‘operate to defeat the guilty act’ such as involuntariness, automatism, duress, necessity, insanity, de minimis non curat lex, self-defence and act of God. By raising any of these defences which are open to the defendant, the defendant need only raise a doubt to be entitled to an acquittal. (at p. 15)

22. In R. v. Kazemi, 2013 ONCA 585, [2013] O.J. No 4300 (CA), the Court of Appeal made reference to the ordinary meaning of the word “holding” a cell phone. The court of appeal held that the meaning of the word “holding” a cell phone is having it in one’s hand. ‘The New Shorter Oxford Dictionary, 1993 defines “to hold” as “to have a grip on” or “to support in or with the hands”. There is no suggestion that only if one has the cell phone in one’s hand for a sustained period of time is one holding the cell phone.’ (at para 11)

23. The court went on to highlight the purpose of amending the legislation which was to stop the use of hand-held communication devices such as cell phones while driving. This is being done for one reason only and that is safety on the roads as drivers, while using the road, should concentrate on one thing only and that is to drive. (at para 13) Thus the purpose and intent of the legislation was to stop people from being distracted when driving by talking or texting while driving.

24. The Court of Appeal concluded that the only way to ensure road safety is through a complete prohibition on having a cell phone in one’s hand or using it at all while driving. Any holding of the cell phone, no matter the length of time it is held, constitutes holding. Only such an interpretation leaves certainty and conforms with the purpose of the legislation.

25. In R. v. Decuzzi, [2018] O.J. No. 2171, the court went into a comprehensive analysis of the type of non-expert evidence that is admissible, the testing of the credibility of that evidence with regard to its admissibility and what the prosecution must establish in order to meet its onus of proving that the elements of the offence have been made out beyond a reasonable doubt.

26. In citing the textbook, entitled The Law of Evidence, seventh edition (Irwin Law Inc., 2015) with regard to lay opinion evidence, ‘Numerous apparent statements of fact are arguably no more than expressions of opinion; things like age, height, weight, the identification of people or things, the speed of vehicles, distance, whether someone is happy or angry, all call for judgment to be made about what has been observed and for conclusions to be drawn. Obviously, it is common for witnesses to testify about such things’. (at para 28) The officer’s evidence was characterized as ‘non-expert opinion’ evidence and is admissible under the ‘lay opinion evidence rule’. (at para 40) However, for that evidence to be relied upon, it must be credible and reliable.

27. There is a distinction drawn in the law between ‘credibility’ and reliability’. ‘Credibility is about the honesty of the witness. Evidence showing that a witness has been corrupted, has a motive to mislead or has discreditable character will be relevant to credibility. Reliability is a term used to describe the accuracy of evidence.’ It relates to the ‘kinds of things that can cause even an honest witness to provide inaccurate information. The reliability of a witness can be affected, for example by (1) inaccurate observations, (2) memory problems, or (3) a failure by the witness to communicate observations accurately’. (at para 34)

28. Justice Cory in Regina v. Lifchus (1997), 1997 CanLII 319 (SCC), 3 S.C.R. 320 (S.C.C.), defined the phrase “beyond a reasonable doubt” as not ‘an imaginary or frivolous doubt’, but a doubt based on reason and common sense and not sympathy or prejudice. Even if you believe that the accused is probably guilty, if the Crown has not satisfied the court beyond a reasonable doubt that the accused is guilty based on the evidence, the court cannot convict the accused of the offence. (at para 57) Justice Iacobucci refined the ‘reasonable doubt standard in Regina v. Starr, 2000 SCC 40, [2000] 2 S.C.R. 144 (S.C.C.), to be a standard that ‘falls much closer to absolute certainty than to proof on a balance of probabilities’. (at para 58-59)

29. Ultimately, the court in R. v. Decuzzi, supra, found that when applying the test set out in Regina v. Lifchus, supra, and as refined in Regina v. Starr, supra, did not accept the officer’s lay opinion evidence that the object the officer observed the defendant to be holding, was a cell phone. As such that the elements of the actus reus had not been established beyond a reasonable doubt. The evidence was insufficient and circumstantial and would have established that the defendant was holding a cell phone on a balance of probabilities but the standard is one of beyond a reasonable doubt and this standard was not met.

ANALYSIS:

27. This court finds that it is necessary to look at each part of section 78.1(1) of the Highway Traffic Act, supra, in order to establish an appropriate test to be applied to determine whether or not the elements of the offence have been made out beyond a reasonable doubt, by the prosecution.

28. The questions that the court should ask are as follows:

First, is the person driving a motor vehicle on a highway;

Second, is she/he doing so while holding or using a hand-held wireless communication device or other prescribed device;

29. Consequently, the person must be driving a motor vehicle on a highway while either holding or using a hand-held communication device. If the prosecution cannot prove beyond a reasonable doubt through the evidence they adduce that an individual is driving a motor vehicle on a highway while holding or using a hand held wireless communication device, then the elements of the offence have not been made out.

30. This court accepts that the Court of Appeal in R. v. Kazemi, supra, has established an absolute prohibition in having in one’s hand or using a cellphone while driving. It does not matter for what duration of time one has or is using the cellphone.

31. The defendant is asking the court to accept that even if we do not believe his evidence, that he was holding a mounting device, the prosecution still has not proven beyond a reasonable doubt that the object in the defendant’s hand was a cell phone and is asking the court to apply R. v. W.D. to render a dismissal of the charge. The defendant indicated that there was a mounting device and it was mounted in his air conditioning unit. The mounting device was falling from the air conditioning unit, he caught it and placed it on the passenger’s seat. In cross-examination, the defendant gave evidence that the phone and the supporting device had separated while the mounting device had fallen out of the outlet for the air conditioning unit. Yet, in re-examination, the defendant clarified that the phone and the supporting device were together and he put them on the passenger’s seat as the supporting device containing the cellphone, had fallen from the air conditioning slot.

32. Has the prosecution proven the actus reus beyond a reasonable doubt? The court has heard the evidence of Officer Rendon and had the opportunity to watch the DVD. The officer very clearly and succinctly indicated that he was one car length behind the defendant’s vehicle and was able to observe the defendant who was driving a blue Dodge Caravan, which is a motor vehicle. The Dodge Caravan is a minivan and does not have any tinted windows. Consequently, the defendant was seated in an elevated position, higher than that of the officer. From the officer’s vantage point he was able to see the defendant driving and he observed the defendant to be holding a cell phone in his right hand. The defendant’s head was turned toward the cell phone, which was illuminated, and the officer concluded that given the position of the defendant’s head, the manner in which he was holding the cell phone and how it was illuminated, that he was Face Timing. The black object being held by the defendant was a cell phone and when the officer executed the stop, the black cell phone on the defendant’s lap was the same one he had observed the defendant to be holding. There was no mounting device in the defendant’s vehicle.

33. When viewing the DVD, the court finds that it does show the defendant to be holding a cell phone in his right hand and that after the lights in the officer’s vehicle were activated, the defendant is seen putting the cell phone down. The DVD further confirms the visual evidence of the officer. He indicated that while his observation was from a different angle than the angle recorded by his dashboard camera, which is located in his vehicle, is stationary and cannot be adjusted, the defendant was holding up and slightly to his side, a black cell phone and there was no mounting device to be seen. This video shows the defendant holding the cellphone and not a mounting device or a cell phone in a mounting device in his hand, for twelve seconds. The lights of the officer’s vehicle went on eight seconds after the handheld device, being the cell phone, had already been in the defendant’s hand. What is material to the offence is not what the defendant may have been doing with the cell phone, i.e. Face Timing, but that he was holding it.

34. The court accepts this evidence, in that the defendant was holding a black cell phone alone, in contravention of section 78.1(1) of the Highway Traffic Act, supra. The officer’s lay opinion evidence is credible and reliable. Unlike the officer’s evidence in R. v. Decuzzi, supra, where he opined that the device was a cell phone but in cross-examination could not say for certain whether or not it was a cell phone or an Ipod as he could not distinguish between the two and had only observed the defendant for approximate 3 to 4 seconds, in our case Officer Rendon was clear and unequivocal that the device that he had observed the defendant to be holding, was a black cell phone. Moreover, the defendant in his own evidence and under both cross-examination and re-examination did not deny that there was a cell phone. He merely distinguished that the cell phone was in a mounting device and that this mounting device had fallen from its mounting in the air conditioning slot; and it was for this reason that he caught the two devices together in his hand, held them and placed them on the passenger’s seat beside him.

35. However, if the court were to accept the defendant’s evidence that the cell phone was in a mounted holding device when it fell and was caught by the defendant, then does this manner of holding a cell phone not contravene section 78.1(1) of the Highway Traffic Act, supra? This court finds that by using and holding a cell phone which is inside a mounted holding device, the defendant is still in contravention of the legislation. If he were to have had only the mounted holding device in his hand, he would not have been in contravention of the legislation as it is not a wireless communication device.

DISPOSITION:

36. For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant operated a motor vehicle while holding and using a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages on September 24, 2017. The court finds the defendant guilty of contravening section 78.1(1) of the Highway Traffic Act, supra.

Dated the 5^th^ day of February, 2019, at the City of Toronto

“J. Opalinski”

Joanna Opalinski J.P.