Ontario Court of Justice

Date: 2022·03·11 Newmarket

Between:

RAVID DAHAN-MOTEK Appellant

— AND —

THE REGIONAL MUNICIPALITY OF YORK Respondent

Provincial Offence Appeal

Heard: March 11, 2022 Delivered: March 11, 2022

Counsel: Ms. C. Galin, counsel for the Respondent Ms. R. Dahan-Motek, on her own behalf

Kenkel J.:

[1] Ms. Dahan-Motek was convicted at trial of Driving with a Handheld Communication Device contrary to s 78.1 of the Highway Traffic Act, RSO 1990 c H8.

[2] She appeals her conviction on several grounds:

• The Justice of the Peace accepted her evidence that she wasn’t making a phone call.
• The Justice of the Peace accepted her evidence that she didn’t touch the phone.
• The Justice of the Peace was biased against her as Ms. Dahan-Motek became upset due to the long wait that day and did not accept the resolution offered by the prosecutor.

[3] The task of an appellate court is to review the trial transcript and the reasons for judgment to determine whether the finding is unreasonable and cannot be supported by the evidence, or whether there was an error of law, or whether there was a miscarriage of justice – s 120 Provincial Offences Act RSO 1990 c P33. This court is not permitted to re-try the case.

[4] I’ve reviewed the trial transcript and the reasons for judgment, and I can find no evidence of bias on the part of the presiding Justice of the Peace. On the contrary, the court provided extensive instructions to the appellant regarding the conduct of the trial. When Ms. Dahan-Motek said she had a “high temper” and it was hard for her to keep quiet in court given her feelings about the case, the Justice of the Peace explained to her that it was in her interest to hold her temper in check and focus on the case. The Justice of the Peace assured her that the court understood her position and “wasn’t bothered” by her reaction.

[5] Ms. Dahan-Motek is correct that the Justice of the Peace accepted her evidence that she was not making a telephone call, but she is not correct that the Justice of the Peace accepted her evidence that she never touched her phone. On the contrary, the Justice of the Peace carefully reviewed all of the evidence of the officer who saw her holding her phone along with the circumstantial evidence that the phone was not in a holder when the officer came to the driver’s window but was tucked under her leg. That circumstance was inconsistent with Ms. Dahan-Motek’s evidence but supported the officer’s observations.

[6] The court reviewed the whole of the evidence at trial and applied the appropriate legal test. The finding was available on the evidence.

[7] The appeal is dismissed.

Delivered: 11 March, 2022. Justice Joseph F. Kenkel