ONTARIO COURT OF JUSTICE

DATE: 2025-06-05
COURT FILE No.: NEWMARKET 4960 – 999-00-2241948X-00

B E T W E E N :

THE REGIONAL MUNICIPALITY OF YORK
Respondent

— AND —

SUSAN ROMUALDI
Appellant

Before Justice C. Harper
Heard on May 9, 2025
Reasons for Judgment released on June 5, 2025

C. Gabriel .................................................................................... counsel for the Respondent
Isai Chalmiev ...................................................... agent for the Appellant Susan Romualdi

HARPER J.:

Overview:

[1] Susan Romualdi was found guilty after trial by Justice of the Peace DeBartolo of driving while holding or using a handheld communication device, contrary to section 78.1(1) of the Highway Traffic Act of Ontario (HTA).

[2] Ms. Romualdi appeals the conviction on several bases including a lack of proof the hand-held device could receive or transmit data wirelessly, the finding that the appellant had a hand-held device was unreasonable, and the Justice of the Peace reversed the burden of proof.

[3] The findings made by the Justice of the Peace were open to her on the record and reasonable. There is no need under s. 78.1(1) for the hand-held device in this case, a cell phone, to be able to transmit or receive data. The appeal is dismissed.

The Trial Record:

Evidence of Officer Amanda Mageean:

[4] Officer Amanda Mageean was conducting traffic enforcement in an unmarked police cruiser on Friday, December 29, 2023. Her vehicle was at a red light eastbound on Wellington at the intersection of the Highway 404 northbound exit ramp. Traffic was exiting the 404 onto Wellington Street, turning left directly in front of the officer’s vehicle.

[5] Officer Mageean observed a 2010 black Ford with Ontario licence plate CHVM 165 exiting the Highway 404 northbound ramp onto Wellington Street. Officer Mageean observed a female driver holding a cell phone in her right hand up towards her chin and mouth area. The officer observed the driver for two to three seconds at this point. The driver’s side of both vehicles were opposite each other. The officer was one to two metres away when making the observations.

[6] The motor vehicle continued westbound on Wellington past the officer’s cruiser. The officer made a U-turn to follow the motor vehicle. The officer caught up with the vehicle about 30 seconds later at about Wellington Street. The officer continued to observe the motor vehicle from Wellington Street to Bayview Avenue. She observed the motor vehicle swerve within its lane.

[7] At Bayview Avenue, the officer conducted a side stop on the motor vehicle to make sure it was the same motor vehicle, having lost sight briefly when making the U-turn. The female driver continued to hold the cell phone in her right hand while she was stopped. The officer was one hundred per cent sure the driver was holding a cell phone. She did not ask what type of cell phone it was. It was rectangular in shape. Officer Mageean said it could not be a device potentially used for GPS. She never saw the driver’s mouth moving.

[8] The officer had a clear and unobstructed view of the driver holding the cell phone at Highway 404 and Wellington and again at Bayview Avenue and Wellington Street. The Ford was a smaller four-door sedan. The officer’s cruiser sat higher than the Ford, allowing her a clear observation of the driver holding the cell phone. The windows were not tinted. When she stopped the car, the driver was holding the cell phone a little bit lower. The officer believed she was using it with her hand to type a message or look up something on the cell phone.

[9] The driver identified herself with an Ontario driver’s licence as Susan Romualdi. Her face matched the photo on the driver’s licence.

Reasons for Judgment:

[10] The appellant was convicted at trial. The Justice of the Peace made the following findings:

Now, the officer’s evidence, I found it to be very detailed actually, not only in identifying the accused, which you agreed with her, that there was no question of the identity of the person when the officer caught up with her at Bayview.

But what you’re questioning is, and you’re saying to this Court, that there should be a doubt because the officer was unable to provide details of the specific phone or what kind of phone it was, what make, what size it was….

Yeah, it could have been something else. Could have been a wallet, it could have been a mirror, it could have been a number of things. The fact is that there’s no evidence to the contrary of what the officer’s evidence is. And unless there is any evidence to the contrary, then this Court takes the evidence of the officer as presented and finds that the cross-examination by you, mister agent has not risen (sic) a doubt in the mind of the Court. And, therefore, I am satisfied beyond a reasonable doubt in what she saw at that moment in those instances, and in the lack of any evidence to the contrary of it, the Court finds the accused guilty of the offence and a conviction registered.

The Grounds of Appeal

[11] The appellant appeals on the following grounds:

1. The learned Justice of the Peace erred in law by concluding that the object observed was a hand-held communication device without any evidence establishing that it was capable of receiving or transmitting data wirelessly as required under the HTA.

2. The learned Justice of the Peace erred in law by convicting the appellant despite the absence of objective evidence proving that the object was a device capable of receiving or transmitting data wirelessly.

3. The learned Justice of the Peace erred by relying on observations that were brief and inconclusive.

4. The learned Justice of the Peace misapplied the burden of proof by requiring the defence to disprove the officer’s assumption rather than requiring the Crown to prove that the alleged device met the statutory definition.

5. The learned Justice of the Peace erred in assessing the officer’s reliability, accepting her belief that the object was a cell phone despite her inability to describe distinguishing features or confirm that it was capable of receiving or transmitting data wirelessly. The officer’s subjective opinion that “any reasonable person knows what a cell phone looks like” was not sufficient to establish this essential element of the offence beyond a reasonable doubt.

The Relevant Legislation:

[12] Section 78.1(1) of the HTA states:

(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. 2009, c. 4, s. 2; 2015, c. 27, Sched. 7, s. 18.

Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle. 2009, c. 4, s. 2.

Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode. 2009, c. 4, s. 2.

Exceptions

(4) Subsection (1) does not apply to,
(a) the driver of an ambulance, fire department vehicle or police department vehicle;
(b) any other prescribed person or class of persons;
(c) a person holding or using a device prescribed for the purpose of this subsection; or
(d) a person engaged in a prescribed activity or in prescribed conditions or circumstances. 2009, c. 4, s. 2.

(5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services. 2009, c. 4, s. 2.

(6) Subsections (1) and (2) do not apply if all of the following conditions are met:

1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic. 2009, c. 4, s. 2.

The Relevant Legal Principles:

The Standard of Review

[13] Section 136 of the Provincial Offences Act provides broad authority to review a matter on appeal (See: R. v. Stephenson, 13 C.C.C. (3d) 112 (Ont. C.A.); R. v. Anderson, [1985] O.J. No. 608 (H.C.J.); R. v. Murray (1983), 27 M.V.R. 66 (Ont. H.C.J.)). But that review is not an open invitation to substitute the view of the court on appeal of the evidence for that of the trial court. Deference must be accorded to the factual findings of the trial court absent a finding that the verdict was not based on the evidence and/or findings made at trial were not available on the evidence. (See: R. v. Francisty (1997), 27 M.V.R. (3d) 220 (Prov Div.); R. v. Ghelichhkhani, 2017 ONCJ 568).

Interpretation of Section 78.1:

[14] Section 78.1(1) places no burden on the Crown to prove a cellphone held by a driver while driving can receive or transmit telephone communications, electronic, mail or text messages (See: R. v. Pizzurro, 2013 ONCA 584).

[15] The Ontario Court of Appeal determined in R. v. Pizzurro at paras 9-14 the following interpretation and its rationale applied to s.78.1(1):

[9] In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices but not to cellphones. In its ordinary meaning, the wording of s. 78.1(1) provides that it is prescribed devices that must have that capability. This constitutes the legislature's direction to the minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. On the other hand, cellphones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them.

[10] Moreover, to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution. The legislature could not have intended that result.

[11] The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally at cellphones. Observing a driver holding or using a cellphone while driving would not be enough if this requirement existed. For each case, the police would also have to find ways to immediately acquire and test the cellphone in order to determine that it was capable of receiving or transmitting. I do not think that the legislature would have intended such a burden to [page 782] be imposed by a section that is otherwise designed to operate in a simple and straightforward way.

[12] It would also be unreasonable for prosecution. Where, for example, the charge is using a cellphone while driving, to require the Crown, once it has proven the use of a cellphone to communicate, to also prove that the cellphone that was being used to communicate is capable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden.

[13] Finally, the legislative purpose of s. 78.1(1) must be considered. In R. v. Kazemi, 2013 ONCA 585 (other cites omitted) (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cellphones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cellphone while driving. To hold out the possibility that the driver may escape the prohibition because the cellphone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

[14] For these reasons, I conclude that s. 78.1(1) of the HTA does not require that the cellphone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Unreasonable Verdict:

[16] A verdict is unreasonable if a trier of fact could not, acting judicially, reach a verdict of guilty on the evidence at trial. (See: R. v. Yebes, [1987] 2 S.C.R. 168 at p. 185; R. v. Biniaris, 2000 SCC 15 at para 36; R. v. H. (W.), 2013 SCC 22, [2013] 2 S.C.R. 180 at para 26). A finding can be unreasonable if a credibility assessment is not supported by the evidence. (See: R. v. Burke, [1996] 1 S.C.R. 474 at para 5; R. v. H. (W.), at para 30). A reviewing court must re-examine and to some extent, reweigh and consider the effect of the evidence (See: R. v. W.R., [1992] 2 S.C.R. 122). But the reviewing court does not substitute its view for that of the trier of fact. (See: R. v. Yebes at para 25).

[17] Findings of fact are entitled to a high degree of deference and cannot be reversed absent “palpable and overriding error” (See: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras 10-18; 22-25; R. v. Kruk, 2024 SCC 7 at para 3; R. v. Gagnon, 2006 SCC 17, at para 20).

Appellate Review of Credibility and Reliability Findings:

[18] Credibility and reliability findings, which are findings of fact, are similarly entitled to a great deal of deference given the distinct advantage a judge or justice of the peace has to observe a witness, an advantage an appellate court lacks (See: R. v. Kruk, at para 3; R. v. Gagnon, at para 17; R. v. Aird, 2013 ONCA 447 at para 39; R. v. U.A., 2019 ONCA 946 at paras 4, 5). An appellate court should not accept an invitation to assess credibility based on transcripts contrary to the trial judge or justice of the peace’s findings absent a lack of evidence for doing so (See: R. v. Burke para 7; R. v. H. (W.) at para 33; R. v. U.A., at paras 4-5).

Analysis:

[19] The grounds advanced by the appellant can be distilled into the following three categories:

1. The prosecution has failed to prove the hand-held device was capable of receiving or transmitting data wirelessly.

2. The finding that the appellant had a cell phone was unreasonable.

3. The Justice of the Peace reversed the burden of proof.

Category #1: Did the Prosecution Fail to Prove the Hand-Held Device Could Receive and Transmit Data Wirelessly?

[20] This ground must fail. The Court of Appeal’s decision in R. v. Pizzurro is a full answer to this issue. The prosecution does not have to prove that the cell phone could receive and transmit data wirelessly (at paras 9-14).

Category #2 – Was it unreasonable to find that the appellant was holding a cell phone?

[21] This ground must fail. There was ample evidence available on the trial record for the Justice of the Peace to find that the appellant was holding a cell phone. The officer testified to initially seeing a cell phone in the appellant’s hand, holding it towards her chin and mouth area. This observation was made one to two metres away. The device was held in a manner consistent with a cell phone. The officer confirmed that she saw a cell phone in the appellant’s hand when she stopped the vehicle. The officer saw the appellant after she was stopped using the cell phone in a way that appeared to be typing a message or to look something up. The officer was certain that it was a cell phone. To the extent it may be an opinion that the officer observed a cell phone it was an opinion open to her as a lay witness given the ubiquity of cell phones in society (See: R. v. Graat, [1982] 2 S.C.R. 819 at para 44). Regardless, the observations of the device’s rectangular shape, its placement by the appellant’s mouth and her use of it after she was stopped are pieces of evidence that support the Justice of the Peace’s finding that it was a cell phone.

[22] And the credibility findings the Justice of the Peace made were open to her on the record. The Justice of the Peace was entitled to find, as she did, the officer’s evidence was detailed and credible. That finding is entitled to great deference on appeal.

Category #3: Did the Justice of the Peace Reverse the Burden of Proof?

[23] Reasons for judgment should, at least in broad strokes, address the issues at trial. In this trial, the appellant relied heavily upon an argument that the officer may have observed something other than a hand-held device, specifically a cellphone. The appellant made the following submission:

Your Worship…I’m a little confused as to how the officer could be a hundred per cent certain that this was in fact a cell phone. Her testimony in court was – and the defence is not disputing the prima facie evidence. I think the prosecution has met their onus on that part. The issue that I think this Honourable Court will have is to essentially beyond a reasonable doubt believe that in fact this was a cell phone. The testimony that we heard from the officer was that “it was up to her mouth, any reasonable person knows what a – what a cell phone looks like.”

The officer hasn’t actually inspected the cell phone. She couldn’t clearly state exactly what size it was. It could have been anything. It could have been a GPS. It could have been a Dictaphone, as I tried to suggest to the officer.

She also stated that it wasn’t illuminated, or there was no illumination coming from the cell phone, which is what we hear usually in trials, which would be a leading factor to deciding whether one is a cell phone or not.

So given the evidence that we’ve heard today, I don’t think this Court should be satisfied beyond a reasonable doubt that, in fact, that was a cell phone that this defendant was holding as we haven’t heard what make or model it is, what size it is. The officer hasn’t inspected it. We don’t know if it’s capable of receiving or transmitting data wirelessly, and therefore I ask Your Worship to dismiss this charge.

[24] The Justice of the Peace’s reasons explicitly addressed the appellant’s central argument that what the officer observed may not have been a cell phone. When the Justice of the Peace stated there was no evidence to the contrary of the officer’s evidence, that was an accurate statement as there was no evidence aside from the officer’s as to what the item held by the appellant was. This statement, when the reasons and the submissions are read as a whole, did not amount to a reversal of the burden of proof. It was a response to issues raised at trial. The Justice of the Peace accepted the uncontradicted evidence of the officer, as she was entitled to, and did not have a doubt on the evidence. A conviction was bound to follow.

Conclusion:

[25] The appeal is dismissed. I would like to thank Mr. Chalmiev and Mr. Gabriel for their helpful submissions.

Released: June 5, 2025
Signed: Justice C. Harper