Ontario Court of Justice

Date: 2024 02 23 Court File No.: Halton POA

Between:

Regional Municipality of Halton — And — Gabriella Vermeer

Before: Justice Scott Latimer

Heard on: February 16, 2024 Reasons for Judgment released on: February 23, 2024

Counsel: Frank Alfano.................................................................................................. for the appellant Christopher Zenko.................................................................................... for the respondent

Latimer J.:

[1] The law in Ontario prohibits the use of cell phones while driving. At this Highway Traffic Act trial, an officer testified to the following:

… I observed a female driver operating a hand-held communication device. The device I observed was rectangular in shape and similar to an iPhone, and attached to the bottom of the device was a white cord. During my observations, I saw the female was holding the device in her right hand and her lips appeared to be moving as if she was in conversation.

[2] The trial justice was ultimately satisfied beyond a reasonable doubt that the appellant was the driver in question, and that she was holding a “hand-held wireless communication device” while operating her motor vehicle: see section 78.1 of the Highway Traffic Act. She was found guilty and sentenced to a $550 fine.

[3] Her appeal raises the following two questions:

(1) Did the Justice of the Peace reverse the burden of proof by adverting to the absence of defence evidence? (2) Was her verdict reasonable?

I. The Justice of the Peace did not reverse the burden of proof

[4] This was a single witness case. No defence evidence was called. The officer testified she saw the appellant holding and interacting with a device that was “similar to an iPhone”. Her recollection of events was challenged in cross-examination, and it was argued that her inability to recall certain surrounding details (e.g. the appellant’s hair color) diminished the weight her other observations should receive. It was argued the prosecution had failed to discharge their onus to prove the offence beyond a reasonable doubt.

[5] The Justice of the Peace reserved judgment and reviewed the transcript before delivering Reasons for Judgment. She indicated that she was satisfied, on the totality of the evidence, that all elements of the offence had been made out; in particular, that the item seen in the appellant’s hand was a “hand-held communication device”.

[6] The appellant takes issue with a particular portion of her Reasons, reproduced below, that relate to his cross-examination of the officer regarding the possibility that what she observed was a voice recorder or MP3 player in the appellant’s hand:

I have given careful and judicial consideration to the submissions of both Ms. Boyd and Mr. Alfano. I note that Mr. Alfano suggested a number of alternatives to the evidence presented but I heard no evidence to support these theories. Mr. Alfano is, in my opinion, correct in his interpretation of Lifchus where in the case there the court must be satisfied beyond a reasonable doubt and it is not just a matter of probabilities.

[7] It is submitted that, in noting the absence of evidence regarding these alternatives, the Justice of the Peace reversed the burden of proof.

[8] Upon consideration, I am not satisfied that the Justice of the Peace fell into error in the above passage. I say so for the following reasons.

[9] First, her Reasons make clear her understanding that the prosecution bore the burden of proof, on a reasonable doubt standard, regarding whether the device in the appellant’s hand was a hand-held communication device.

[10] Second, and most importantly, the alternatives suggested by Mr. Alfano, such as the appellant, in 2021, using a hand-held voice recorder while driving on a public roadway, are not grounded in the evidence or reasonable: R v. Villaroman, 2016 SCC 33, [2016] 1 SCR 1000, at para. 37; R v. Pham (2005), 203 CCC (3d) 326 (Ont. C.A.), aff’d 2006 SCC 26, 209 CCC (3d) 351 (SCC), at para. 22 (C.A.). In the absence of some evidentiary basis to tether the purported inference, it simply amounts to unfounded speculation. [1] The trial justice’s observation as such occasioned no legal error.

II. The verdict was reasonable

[11] On this ground of appeal, the appellant raises much the same argument she pursued at trial – the officer’s testimony is not reliable because of the passage of time and her allegedly foggy recollection of the traffic stop. As Mr. Alfano himself observed during submissions at trial, this was an issue of weight for the trial justice: see Trial Transcript, p.22, ln. 13-15. Her Worship heard the evidence firsthand; her conclusions in this regard are deserving of deference.

[12] Having accepted the officer’s evidence, the finding that the appellant was holding a phone in her hand was available on this record. Indeed, in my view it was an irresistible conclusion given the constellation of factors before the trial justice. The item looked like a phone, was plugged in like a phone, and was being used by the appellant precisely as a phone would be used. The trial justice’s conclusion that it was a phone is logical and reasonably drawn.

III. Disposition

[13] The appeal is dismissed.

Released: February 23, 2024

Justice Scott Latimer

[1] An example of an evidentiary basis can be found in R. v. Mina, OCJ unreported (22 Mar 2016), the decision provided by Mr. Alfano. In that case, the appellant testified that she was holding her iPod at the relevant time.