r v. DANIEL, 2023 QCCQ 10059

Director of Criminal and Penal Prosecution c. Daniel 2023 QCCQ 10059 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No : 500-61-553126-229 DATE : December 18, 2023 ______________________________________________________________________ BY THE HONOURABLE JEAN-SÉBASTIEN BUSSIÈRES PRESIDING JUSTICE OF THE PEACE _____________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

DANIEL, ARSANY MAGDY AN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ BACKGROUND [ 1 ] During the afternoon of October 27, 2021, a police officer observed the defendant stopped at a red light, looking at and manipulating a cell phone. [ 2 ] The police officer intercepts the defendant and give him a statement of offence, accusing him of using a cell phone in contravention of

section 443.1 of the Highway Safety Code (H.s.c.). [ 3 ] The defendant acknowledges the use of his cell phone and confirms that he held it in his hand in order to authorize the route proposed by his GPS application. [ 4 ] However, in the course of his testimony, he agreed to his lawyer's suggestion that, when he held it in his hand, the cell phone was placed and remained on a "gooseneck" type holder, intended for this purpose. [ 5 ] Consequently, he argues that the act of holding and using the cell phone did not constitute the alleged offence.

On the contrary, since his cell phone remained attached to the support during the manoeuvre, he should be acquitted. ISSUES IN DISPUTE [ 6 ] Two questions are in issue:

a) Confronted with contradictory versions, does the defendant's testimony raise a reasonable doubt?

b) If so, does his actions constitute "using a cellular telephone or any other portable device" within the meaning of

section 443.1 of the H.s.c.? [ 7 ] The Court does not believe the defendant's testimony. Nevertheless, the Court continues its analysis and concludes that the admitted acts are sanctioned by the H.s.c. Here is why. THE PROSECUTION’S EVIDENCE [ 8 ] The prosecution chose to proceed by producing a statement of offence and a complement to the statement of offence.

[ 9 ] It states that the police officer is stopped at an intersection and observes the defendant in the left lane, alone in his vehicle, staring down at his knees. The officer exits his patrol vehicle, moves to the side of the defendant's vehicle and observes the following: Je vois que le conducteur « A » tient dans sa main droite, appuyée sur sa cuisse droite un téléphone cellulaire. Son pouce droit appuie à plusieurs reprises sur l’écran.

THE DEFENCE’S EVIDENCE [ 10 ] The defendant testified that he was surprised by the police officer, who was standing and observing him through the window. [ 11 ] He confirmed that he was stopped at a red light and that his attention was focused on the GPS application, on his cell phone. He specifies that the device suggests a change of route. [ 12 ] To accept the change of route, he took the phone in his right hand. According to the first part of his testimony, the device was resting in the cup holder of his vehicle when he took it. [ 13 ] The defendant reproduced the gestures he made to execute his manoeuvre.

The Court notes the following gestures reproduced during the hearing: - He slides four fingers behind the phone, so that the back of the phone is pressed into the palm of his hand; - The sides of the phone are clamped between the phalanges of his four fingers and the palm of his hand; - With the phone in his hand, the defendant accepts the proposed new route, using his thumb, which is in front of the phone's screen. [ 14 ] Several minutes after he began his testimony, the defendant's lawyer showed him an image of a telephone holder and suggested that, at the time of the events, the device was in a holder of the same type.

The defendant accepted his lawyer's suggestion. [ 15 ] The image is introduced as evidence. It illustrates a support that is composed of three sections. The upper end is a backrest designed to receive and grip a cell phone. A central

part consists of a flexible arm. Finally, the lower end is a round base, which appears to be designed to be placed in a cup holder. [ 16 ] Despite the use of this device, the defendant does not deny that he holds the device in his hand. He points out that he does this to "stabilize" the cell phone, which makes it easier to hold. Once again, he reproduces his gestures in the manner described earlier. Issue 1 - Analysis of contradictory versions [ 17 ] The burden of proof rests entirely on the prosecution.

In fact, the documentary evidence introduced by the prosecution demonstrates all the material elements of the alleged offence. [ 18 ] The defence benefits from the presumption of innocence and consequently has no burden of proof to meet in order to raise a reasonable doubt. When examining contradictory versions, the Court must not choose the version that seems most probable.

In such a context, if the testimony of the defendant is believed or raises a reasonable doubt, he must be acquitted. [ 19 ] Confronted with contradictory versions, the credibility and reliability of the evidence presented is important and must be weighed by the Court in its analysis. In this respect, the Court is of the opinion that the defendant's testimony is not reliable.

The sincerity and reliability of his testimony are greatly tainted by the context surrounding the introduction into evidence of the use of a cell phone holder. [ 20 ] From the outset, the defendant's testimony makes no reference to such a holder. On the contrary, on more than one occasion, the defendant mentions that his phone is located in the cup holder , before he picks it up. [ 21 ] It was in this context that his lawyer showed him a piece of paper with an image printed on it, asking: Question: When you mean the cup holder, you mean the phone holder that goes inside the cup? You mean one, like this one?

Answer: Yah, this one. [ 22 ] Despite the absence of objection to the deposit of the image in question, the Court is of the opinion that the probative value of this element is greatly affected in the circumstances. This tarnishes the defendant’s testimony, as a whole. [ 23 ] Indeed, omitting to specify that his cell phone is in such a holder is not trivial. It shakes the foundations of the defence, presented in this case. [ 24 ] Notwithstanding the above, in continuing his testimony, it remains open to the defendant to explain the omission of such an important element.

A simple explanation or contextualization can sometimes provide sufficient and reassuring insight. But that was not to be. Without shifting the burden of proof, the Court must now analyze the testimony of the defendant, in the shadow of this silence. [ 25 ] Finally, the Court points out that the evidence is also silent on the source of the submitted image. This consequently affects its value and its air of reality. [ 26 ] Considering the foregoing, the Court does not believe the defendant. More specifically, the Court does not believe that the

telephone was in a holder intended for that purpose. [ 27 ] His testimony, when analyzed in light of all the evidence and the context in which it was submitted, does not raise a reasonable doubt. [ 28 ] On the contrary, the Court is convinced that the events occurred as shown by the prosecution's evidence, which is confirmed by the defendant at the beginning of his testimony, i.e., before his lawyer's suggestion. [ 29 ] The evidence analyzed as a whole supports this conclusion beyond any reasonable doubt.

Issue 2 - Are the defendant's admitted acts contrary to the H.s.c.? [ 30 ] Even if the Court does not believe the defendant's testimony, the facts and gestures that the defendant acknowledges nevertheless constitute the offence for which he is charged. [ 31 ] To use a hands-free system in compliance with the H.s.c., the cumulative conditions set out in paragraph 2 of

section 443.1 must be met. The French version of this paragraph reads as follows: 443.1 (…) 2° le conducteur du véhicule routier ou le cycliste consulte l’information affichée sur un écran d’affichage, y compris celui d’un appareil portatif, ou actionne une commande de l’écran alors que celui-ci satisfait à l’ensemble des conditions suivantes:

a) il affiche uniquement des informations pertinentes pour la conduite du véhicule ou liées au fonctionnement de ses équipements usuels;

b) il est intégré au véhicule ou installé sur un support, amovible ou non, fixé sur le véhicule;

c) il est placé de façon à ne pas obstruer la vue du conducteur du véhicule routier ou du cycliste, nuire à ses manœuvres, empêcher le fonctionnement d’un équipement ou en réduire l’efficacité et de manière à ne pas constituer un risque de lésion en cas d’accident;

d) il est positionné et conçu de façon à ce que le conducteur du véhicule routier ou le cycliste puisse le faire fonctionner et le consulter aisément. [Emphasis added] [ 32 ] The Court concludes that the last criterion has not been met. [ 33 ] First, according to the defendant's testimony, his attention is focused on his device.

This is consistent with the fact that he does not immediately notice the presence of the police officer. [ 34 ] Second, it appears clear and undisputed that during the use in question, the defendant's axis of vision is not the one, a driver has in a normal position. [1] In fact, the Court holds that he is looking towards his knees. [ 35 ] Third, the Court holds that the defendant had to redirect the use of one hand in his manoeuvre in order to hold and stabilize his cell phone. [ 36 ] These three elements taken together clearly demonstrate that it was impossible for the defendant to operate or consult his cell phone easily. [ 37 ] In view of these facts, the defendant's acknowledged use of his cell phone does not meet the requirements set out by the legislator, who, it should be recalled, incorporated

section 443.1 into Division V of the Highway Safety Code , with the objective of reducing distractions while driving. FOR THESE REASONS, THE COURT: DECLARES the defendant guilty of the offence as charged. __________________________________ JEAN-SÉBASTIEN BUSSIÈRES Presiding Justice of the Peace Me Alexandra Bénard Director of Criminal and Penal Prosecution

Counsel for the prosecution Me Mack Singleton Ticket911 Counsel for the defendant Date of hearing : October 4, 2023