Paul Periti

The defendant, Roberto Russo, was charged with driving while holding a handheld communication device under the Highway Traffic Act.

He pleaded not guilty, asserting the defence of necessity.

Russo, a diabetic, testified that he used his cell phone to check his blood sugar via an implanted sensor and an app (LibreLink) after receiving an urgent alert and feeling unwell, while stopped at a red light.

The court found both the officer and the defendant credible.

While the statutory exemptions for device use did not apply, the court found that Russo successfully established the common law defence of necessity.

The court determined there was clear and imminent peril to his well-being, no reasonable legal alternative given the urgency of a diabetic event, and that the harm avoided (potential incapacitation while driving) was proportional to the harm inflicted (brief phone use while stationary).

The charge was dismissed.

The defendant was charged with driving a motor vehicle while holding a hand-held wireless communication device contrary to section 78.1(1) of the Highway Traffic Act.

The prosecution alleged that the officer observed the defendant holding a black Samsung cell phone while driving northbound on Jane Street at Finch Avenue West on December 14, 2016.

The defendant claimed she was holding a pack of Dentyne gum that was fluorescent and capable of being illuminated by ambient light.

The court applied the W.D. test for credibility and found that the officer's evidence was reliable and consistent.

The court rejected the defendant's explanation as implausible and found her guilty beyond a reasonable doubt.

The defendant was charged with unsafe turn/lane change contrary to section 142(1) of the Highway Traffic Act.

The collision occurred at the intersection of Spadina Avenue and Bremner Boulevard in Toronto when the defendant's Honda SUV made a right turn and collided with a motorcycle.

The court found that the prosecution proved the actus reus of the offence beyond a reasonable doubt.

The defendant's due diligence defence failed because he made an unsafe right turn in a short distance where he was unable to see the motorcycle or stop to avoid collision.

The court rejected the defendant's assertion that the curb lane was clear, finding it unreasonable given the traffic conditions and the short distance and time available for the maneuver.

The defendant brought a preliminary motion to quash the Certificate of Offence for speeding under the Highway Traffic Act on the grounds that the inclusion of 'R79' in the code box on the certificate was prejudicial and violated the presumption of innocence.

The court found that the code notation did not deface the charging document, did not prejudice the defendant's ability to make full answer and defence, and did not violate the presumption of innocence.

The application to quash was denied.