2023 QCCQ 369, 2023 QCCQ 369

Directeur des poursuites criminelles et pénales c. Engler 2023 QCCQ 369 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL TOWN OF MONTREAL CRIMINAL AND PENAL CHAMBER No: 500-61-555001-222 DATE: February 9, 2023 ______________________________________________________________________ BY THE HONOURABLE JACQUES ROUILLIER, JUGE DE PAIX MAGISTRAT ______________________________________________________________________ LE DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Plaintiff v. LAWRENCE S.

ENGLER Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] The defendant is charged with having used a cellphone while driving a motor vehicle, contrary to

article 443.1 of the Highway safety code (RLRQ c. C-24.2 ) [ 2 ] The facts presented by the prosecutor reveal that a policeman was doing a cellphone operation on Décarie expressway near the Jean- Talon exit. [ 3 ] He is standing at an elevated position to have a better view of the interiors of the motor vehicles passing by. [ 4 ] The distance between his position and the motor vehicle he is observing is about 3 meters. [ 5 ] He observes a driver in his vehicle with his cellphone in his right hand close to the stirring wheel.

He was manipulating the cellphone and looking at the screen. [ 6 ] The policeman proceeds to intercept the defendant and after identifying him, he gives him the present ticket. [ 7 ] The defendant admits he had his cellphone in his hand, but it was just to place it back vertically in the cupholder so as to make room for his water bottle. According to his testimony he held the cellphone for about 5 seconds. He states that he never used any of the functions on the cellphone.

ISSUE TO CONSIDER [ 8 ] Is the testimony of the defendant credible as to his explanation concerning the manipulation of the cellphone? [ 9 ] Did he refute the presumption of

article 443.1 paragraph 2 as to the usage he was doing with the cellphone? CONTEXT [ 10 ] The defendant admits that he manipulated his cellphone for about 5 seconds. He did so because as shown on picture 2 of exhibit D-1, his cellphone had fallen horizontally in the cupholder thus preventing him from putting his water bottle back in its place. [ 11 ] He does not remember what hand he used to pick up his cellphone nor what manipulation he did with it. [ 12 ] He does testify that his cellphone was hooked up to his car screen and that he did not use his cellphone. According to him the screen on his phone was black.

ANALYSIS AND DECISION [ 13 ] The Crown has the burden to prove all essential elements of the infraction. In the present case it had to prove that the defendant was holding is cellphone and that he was driving a motor vehicle. Once these elements were proven, there was a presumption that the defendant was using is cellphone as provided by

article 443.1 paragraph 2 of the Highway safety act which states: “For the purposes of the first paragraph, the driver of a road vehicle or cyclist who is holding a portable device in hand or in any other manner is presumed to be using the device” [ 14 ] The defendant therefore had to refute this presumption with evidence that would raise a doubt as to the fact that he was using it. [ 15 ] In this case the defendant did testify that he merely picked up the phone and in order to make room for his water bottle in the cupholder.

He states that he never used it. [ 16 ] The Court, after reviewing the whole of the evidence presented at trial, comes to the conclusion that the testimony of the defendant cannot be reasonably believed nor does the whole of the evidence raise a doubt as to the guilt of the defendant for the following reason: [ 17 ] It does not take 5 seconds to put a cellphone back in its position in a cupholder, especially in the present circumstance. As shown on picture 2 of exhibit D-1, the defendant only had to put it back vertically in order to make room for his water bottle.

There was no need to pick it up or to handle it for 5 seconds. [ 18 ] Furthermore, it is very hard to conceive that he had a hand on the stirring wheel, another hand holding a water bottle and at the same time manipulating his cellphone.

It is very hard to give any credibility to the defendant’s testimony. [ 19 ] Finally, the defendant has no recollection of what manipulation he did during those 5 seconds nor what hand he used to hold it. [ 20 ] The Court comes therefore to the conclusion that the defendant’s testimony is unreliable and without any credibility. [ 21 ] The Court is satisfied that the prosecution has proven beyond a reasonable doubt that the defendant had the cellphone in his hand and was using as observed by the policeman before the interception.

FOR ALL THESE REASONS, THE COURT: DECLARES the defendant guilty of the charge laid against him. CONDEMN the defendant to pay a fine of $300.00 plus cost. DELAY 90 days. __________________________________ JACQUES ROUILLIER, J.P.M. Me Natasha Tonich Directeur des poursuites criminelles et pénales Plaintiff’s attorney Me Mack Singleton Ticket911 Defendant’s attorney Date of hearing: February 7, 2023