Ontario Court of Justice

Date: December 14, 2021 Court File No.: Cornwall, ON 3911-999-0-2330355Z-00

In the Matter of an appeal under subsection 135 of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended.

Between:

HER MAJESTY THE QUEEN Respondent

— AND —

DILJOT SETHI Appellant

Before: Justice D.A. Kinsella

Reasons for Judgment released on December 14, 2021

Counsel: L. Riviere, Prosecutor M. Beaupre, agent for the appellant, Diljot Sethi

On appeal from a conviction by Justice of the Peace Marchand on January 15, 2020.

KINSELLA J.:

Overview

[1] On February 24, 2019 Diljot Sethi was charged with operating a motor vehicle while holding a handheld communication device, contrary to section 78.1 of the Highway Traffic Act (“HTA”).

[2] The matter proceeded to trial in front of Justice of the Peace Marchand. Mr. Sethi was represented by Ms. Beaupre and testified on his own behalf. The learned Justice of the Peace found Mr. Sethi guilty and imposed a $500.00 fine and costs.

[3] Mr. Sethi appeals on the basis that the learned justice of the peace erred in his reasons for judgment. He alleges that the learned justice of the peace was wrong in his conclusion that, even if he accepted the testimony of Mr. Sethi, that testimony was sufficient to support a finding of guilt under the legislation.

Evidence at trial

[4] There was no issue at trial that Mr. Sethi was operating a tractor-trailer on February 24, 2019 or that he was in possession of a handheld communication device.

[5] Constable Marc Gadbois was called as the sole witness for the prosecution. He testified that he was on duty operating an unmarked vehicle, a Tahoe SUV. Shortly before 4 pm, he was travelling eastbound on Highway 401. As he was passing a red tractor-trailer, he could see something in the driver’s right hand. He believed it was an iPhone in a black case and noted that the screen was towards the driver’s window, so he had a good view.

[6] As he was parallel to the vehicle, Cst. Gadbois noted that there was a white charging cable attached to the phone. He could see that the driver’s mouth was moving, which led him to believe that the driver was speaking into the phone, as he was holding the phone near his upper chest. Cst. Gadbois also noted that the screen was black.

[7] He stopped the tractor-trailer and identified Mr. Sethi as the driver. He noted that Mr. Sethi was in possession of the iPhone he had seen through the window, although the power cable was now on the floor of the vehicle. Mr. Sethi produced his electronic logbook on his phone.

[8] Mr. Sethi testified that he did have a cell phone in his tractor-trailer that he kept in a magnetic holder on his dashboard. He testified he used his phone to keep track of his electronic logbook, but that he does not use it “for calling.” He testified that he would need to remove the cell phone from the mount when he stops, but that he had not removed it from the mount that day. He also denied that his phone had been plugged in, as it was fully charged so that was not necessary.

[9] Mr. Sethi testified that he had touched the phone to check his log, as he was approaching a weigh scale and the log had not been working earlier. He wanted to see if the problem had been fixed so he would not get a ticket. He also wanted to check his hours of service to make sure that he had not gone over. He said the only thing the officer could have seen was him touching the phone, as he did not have it in his hand.

[10] In his ruling, Justice of the Peace Marchand made it clear that he accepted the testimony of the police officer as to what he had observed. His Worship also noted that, since Mr. Sethi had testified, he had to apply the principles as set out in R. v. W.(D.), [1991] 1 S.C.R. 742, although he did not expressly set out the test.

[11] The learned justice of the peace noted that there were several inconsistencies with Mr. Sethi’s testimony. He went on to set out the requirements of s. 78.1(1) of the HTA. His worship then concluded:

“I do not believe entirely Mr. Sethi’s testimony, but even if I did, I am satisfied that the usage that he described he did would be against Section 78.1 of the Highway Traffic Act by virtue of touching the screen of a communication device while driving.”

Scope of Appellate Review

[12] This appeal is pursuant to Section 135 of the Provincial Offences Act. An appeal under section 135 of Part I offences is conducted by means of a review. This is quite different than appeals from proceedings under Part III, as this court’s ability to intervene is not limited. This court is not required, for example, to find that the judgement at trial was unreasonable, unsupported by the facts, or erroneous in law. The language that defines the conduct of the appeal under s. 136(1) speaks in terms of a broad-based review with generous allowances to all parties to ensure that the issues are fully and effectively defined and fairly and completely considered. A judge sitting on appeal is entitled to consider all the evidence and come to her own conclusion (see R. v. Michaud, 2015 ONCA 585).

[13] Despite these broad powers, there are some practical limitations. As noted by Justice Duncan in Regina v. Gill, [2003] O.J. No. 4761, at paragraph 10, “it could not have been the intention of the legislature that the Provincial Offences Appeal Court re-try every case.” Considerable deference should be given to the trial justice’s findings unless they are unreasonable.

Section 78.1 and Related Regulations

[14] Section 78.1 reads as follows:

(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.

[15] There are exceptions. Under subsection (3), a person is permitted to use such a device provided it is in hands-free mode.

[16] Further exceptions are provided for in the regulations, specifically Ontario Regulation 366/09, s14(1) which states:

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.

[17] Of note, the regulation is quite specific that the driver is only permitted to press a button on the hand-held device to “make, answer or end a cell phone call”. It does not grant any exception to access other applications on the hand-held device.

Conclusion

[18] Mr. Sethi’s testimony was clear that he was not using his cell phone as a phone; rather he testified that when he touched his screen (in other words, pressed a button on the hand-held device), he was doing so only to access his electronic logbook. That is not a permitted exception.

[19] The learned justice of the peace was correct in his assessment, therefore, that Mr. Sethi’s evidence, if accepted, would still amount to an offence contrary to section 78.1(1) of the HTA.

[20] The evidence supported the conviction. The appeal is therefore dismissed.

Released: December 14, 2021 Signed: Justice D.A. Kinsella