r v. ZIENNI RIZAD, 2019 QCCQ 2342

Directeur des poursuites criminelles et pénales c. Rizad 2019 QCCQ 2342 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL TOWN OF MONTRÉAL “Criminal and penal division” No: 500-61-460250-179 DATE: March 12, 2019 ______________________________________________________________________ PRESIDED BY ANNIE CLAUDE CHASSÉ PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Prosecutor v.

ZIENNI RIZAD Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The defendant is charged of operating, without headphones , a radio or other similar device on a train contrary to

section 13 of the by-law Concerning standards of conduct on the suburban train system [1] (hereinafter the regulation). More precisely, of having operated his cellphone without headphones . [ 2 ] The defendant argues that this provision does not include cellular devices. Context [ 3 ] On Tuesday, November 8, 2016, the defendant sits alone in a train car. He plays a soccer game on his cellular without headphones . The inspector asks him to turn off the sound. The defendant acquiesces, but only lowers it. The inspector asks him again to close the sound completely.

Following the defendant’s refusal, this statement of offense is served. [ 4 ] The defendant does not dispute the facts, but specifies that the noise from his phone did not disturb anyone. [ 5 ] Essentially, he argues that

section 13 of the Regulation, as it existed before being repealed, does not refer to cellular, since it is not a device similar to a radio or a tape recorder. The new regulation refers specifically to cellular device and allows different ringtones. Question in dispute [ 6 ] Is a cellular a device similar to a “radio” or “tape recorder” within the meaning of

section 13 of the Regulation? Analysis [ 7 ] The by-law Concerning standards of conduct on the suburban train system [2] is a public regulation that aims to establish the standards of conduct to be observed by persons on the suburban train system. These provisions, adopted for the well-being of users, must be read in a broad manner in a fair, large and liberal

interpretation, so as to respect the intention of the legislator. [ 8 ]

Section 13 is under the heading of “civic duty” and reads as follows: No person shall operate a radio, a tape recorder or any other similar device , unless he uses headphones, in a train, a station or a shelter on a platform. [ 9 ] The main purpose of statutory

interpretation is to seek the intention of the legislator, taking into account the law, context, logic and history [3] . The grammatical

interpretation recommends that words be given the meaning they have in the current language without the addition of words or depriving them of their effect. [4] [ 10 ] The legislator could not have foreseen, at the time of the adoption of this regulation, the multitude of devices created by technological progress. That is the reason for which he added the words "any other similar device". [ 11 ] According to English Collins Dictionary . [5] , the term "tape recorder" is defined as a machine used for recording and playing music, speech, or other sounds.

[ 12 ] As for the term "radio", the current meaning refers to a radio device emitting sound as music. [ 13 ] Therefore,

Section 13 aims to avoid the emission of noise and sounds emanating from various entertainment devices, and this, in order to ensure the civility and tranquility of public transport users. [ 14 ] In this case, the defendant does not use his phone to communicate but to play a game.

It is of judicial knowledge that smartphones have many functions and applications, such as recording voices and playing music or games. [ 15 ] Contrary to the defendant’s pretension, the purpose of the new regulation [6] remains the same: to encourage the users of public transport to exercise good citizenship and respect, in order to maintain a harmonious relationship. [7] The use of electronic devices without headphones remains prohibited except for the different ringtones that can be emitted by a cellular device. [8] However, the uncontradicted evidence establishes that the sound coming from the defendant’s phone is not a ringtone but the sound of a video game. [ 16 ] This is a strict liability offense to which the defendant may present a defense of due diligence.

The absence of other users does not constitute a defense to this offense. [ 17 ] For these reasons, the Court concludes that the noise emanating from the device used by the defendant to play video game is a device similar to a radio and tape recorder. The prosecution has proved beyond a reasonable doubt the essential elements of the offense. FOR THESE REASONS: DECLARES the defendant guilty of the offense. CONDEMNS him to pay the minimum fine of $ 75.00 and legal costs within 90 days as agreed at the hearing on January 30, 2019. __________________________________ ANNIE CLAUDE CHASSÉ, J.P.M.

Me Marie-Michèle McDuff Directeur des poursuites criminelles et pénales Zienni Rizad The defendant represent himself Date of hearing: January 30 th 2019