Ontario Court of Justice

Date: 2022 02 28 Court File No.: Certificate No. 1260-999-00-0116013X

Between:

REGIONAL MUNICIPALITY OF HALTON

— AND —

ANDREW MCNALLY

Before: Justice Scott Latimer

Heard on: February 11, 2022 Reasons for Decision released on: February 28, 2022

Counsel: Lauren Boyd, agent for the Respondent Frank Alfano, agent for the Appellant, Mr. McNally

LATIMER J.:

[1] The appellant was found guilty at trial of driving with a handheld communication device contrary to section 78.1(1) of the Highway Traffic Act. He appeals that finding on the basis that the Justice of the Peace who heard his trial misapplied the burden of proof and, alternatively, reached an unreasonable verdict. The respondent disagrees on both counts.

[2] I view the legal issues in a slightly different manner than the parties. This case was not so much about what Mr. McNally was doing but why he was doing it, and whether that purpose could be proven to fit within the exemption set out in s. 14(1) of Regulation 366/09. For the reasons that follow, the appeal is allowed and a new trial is ordered.

I. Facts

[3] Section 78.1(1) of the HTA prohibits, inter alia, the driver of a motor vehicle on a public highway from using a hand-held wireless communication device. Mr. McNally was driving his truck on the QEW while using a cellphone mounted to the right of his steering wheel. On these facts, everyone at trial agreed.

[4] Where the prosecution and defence parted company was why he was touching the mounted device. No doubt with an eye towards the s. 14(1) exemption, the prosecution sought to prove as voluntary an utterance from the appellant that he was “setting up his GPS and didn’t realize he couldn’t touch [his phone]”. Mr. McNally testified that this was an inaccurate reproduction of what he was trying to communicate – he was attempting to tell the officer that he was trying to answer a phone call and, when he was so doing, his GPS would not have been visible on the screen. However, the officer was “quite argumentative” and would not let him “finish a single sentence”, so he was unable to provide the entirety of this information to the officer. Both the utterance and the explanation were admitted for the trier of fact’s ultimate consideration.

II. The Issue That Needed to Be Resolved

[5] Section 78.1(1) of the HTA obligated the prosecution to prove beyond a reasonable doubt that Mr. McNally was using his cellphone while it was mounted to the right of the steering wheel. That was not an issue here. What mattered was what should have been the next step in the analysis.

[6] The Legislature has created an exemption from regulatory liability for cellphone usage similar to what occurred in this case. Section 14(1) of Regulation 366/09 reads:

Exemption for pressing buttons

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.

[7] Contrary to the appellant’s submissions, the prosecution did not have to disprove this exemption beyond a reasonable doubt. Section 47(3) of the Provincial Offences Act states that “the burden of proving that an… exemption…prescribed by law operates in favour of the defendant is on the defendant”. This is a persuasive burden that Mr. McNally would have been obligated to satisfy on a balance of probabilities: see R. v. Singh, 2016 ONCJ 618, at paras. 17-18.

[8] I return to what I said at the beginning: this case was not about what Mr. McNally was doing, but why he was doing it. That is why the prosecution led the utterance. If the trial court accepted that he was touching his mounted phone to set up his GPS, he would have been outside the exception and guilty of the charge. No doubt that is also why Mr. McNally testified: if he could establish, on a balance of probabilities, that he was touching the device to answer a phone call he would be exempt from s. 78.1(1) liability.

[9] The respondent’s difficulty on appeal is that the Reasons for Judgment do not address the above Regulation, either directly or implicitly. The trial justice reviewed the officer’s evidence, including the GPS utterance, and then “expressed sympathy” for the appellant’s situation. He then adverted to two cases that discussed the elements – but not the exemption – in s. 78.1(1) before moving to a review of the appellant’s testimony.

[10] While reviewing, he stated:

I know what he is saying that he was trying to reconnect the call. He is looking at the road, he is looking over, he is trying to tap it at the same time but that is all around what I think the legislation is saying you cannot do. If we were talking about one time here, hit it, boom, that’s it. But over a period of – a sustained period of time, I think that is what the legislation is trying to curb.

And that is where I am left in this matter so based on the evidence that I have heard, I do find the defendant guilty of the charge of drive handheld communication device.

[11] The respondent submits that it is implicit in this passage that the trial justice is considering Regulation 366/09. Perhaps. It is also equally possible that he is referring to the broader “distracted driving” legislation and making an open-ended assessment about what sort of conduct should be caught by s. 78.1(1). There is no mention of the Regulation, the s. 14(1) exemption, whose burden it is, and whether he accepts the officer’s evidence about GPS use or the appellant’s evidence about receiving a phone call while trying to keep his eyes on the road. In the absence of knowing with any degree of certainty what the trial justice was deciding and why he was deciding it, the finding of guilt cannot be upheld.

III. Remedy?

[12] The appellant seeks an acquittal, on the basis that his conduct falls squarely within the s. 14(1) exemption. As I have tried to explain in these Reasons, that depends on whether the next trial court accepts his explanation for what he said at the roadside. If he was touching his phone to operate a GPS application, he is not exempt from liability. If he can establish that he was answering a phone call, he very well may be able to meet his persuasive burden. In the circumstances, the appropriate remedy is to order a new trial.

[13] I am aware that I have resolved this case without addressing the main submission of both parties during oral argument: whether s. 14(1) permits only the pressing of a single button, or several buttons. As it is unnecessary to the resolution of this appeal, I will leave that issue for another day. [1]

IV. Disposition

[14] The appeal is allowed and a new trial is ordered. I trust the prosecution will consider whether a re-trial is in the interests of justice given the particular facts of this allegation, the amount of time and likely expense the defendant has incurred to this point, as well as the current COVID-19 pandemic-influenced backlog. If necessary, however, the parties shall arrange a date to have the matter returned to the trial court.

Released: February 28, 2022 Justice Scott Latimer

[1] Although at first blush, neither side’s argument is particularly attractive. The prosecution’s submission that only one button may be pressed ignores the sub-heading’s use of the word “buttons”, as well as the reality that, as identified by Justice Duncan in City of Mississauga v Muraca, 2018 ONCJ 551, “the exemption section is meaningless unless some interpretative latitude is applied. For example, it speaks of “pressing a button” while strictly speaking there are no buttons on cell phones. Instead, the user presses an image or a word or an icon. If these things can be “buttons”, can a “pressing” include a “swiping” or a “scrolling”?”

The appellant’s submission, that an unlimited number of button presses would inevitably be caught by the exemption, is equally uncompelling. I suspect that whenever this issue gets resolved it will be with an eye towards the legislative intent behind these provisions in the first place, i.e., to combat distracted driving while at the same time promoting the use of safe “hands-free” communication devices.