R. v. Abu-Al, 2023 MBPC 31

CITATION: R. v. Abu-Al , 2023 MBPC 31 THE PROVINCIAL COURT OF MANITOBA BETWEEN: Her Majesty the Queen ) O. Foy-Yamah ) for the Crown ) -and- ) ) ) Monsur Abu-Al ) Monsur Abu-Al ) for the Accused ) ) ) ) ) Reasons for Decision ) Delivered: July 4, 2023 Trask J.J.P. [ 1 ] Monsur Abu-Al received a ticket for allegedly using a cellular telephone while driving a vehicle, contrary to

section 215.1(2) of The Highway Traffic Act , CCSM cH60 (“ HTA ”) in Winnipeg, Manitoba, on December 30, 2022, at 7:55pm. Mr. Abu-Al contested this ticket and the matter proceeded to a dispute hearing in the Provincial Offences Court on June 7, 2023. [ 2 ] After the Crown and defence called evidence and submissions were made, the matter was adjourned to give the decision and reasons. These are those reasons.

Summary of evidence [ 3 ] The Crown proceeded by way of certificate evidence in this case, as permitted by

section 63 of The Provincial Offences Act , CCSM cP160 (“the POA ”). Tendered as exhibit one, the certificate was signed by both Cst. Staples and Cst. Miller. It sets out that, on December 30, 2022, at 7:55pm, Cst. Staples was “[c]onducting distracted driving enforcement” at “Portage/Empress” in Winnipeg, Manitoba, in an unmarked white van. While travelling west, Cst. Staples indicates that they observed a male, “through an untinted passenger front window,” with “a smartphone sitting on his dashboard with a video/movie playing on the screen as he was driving.” The certificate continues to provide Cst.

Staples’ observations, including that the male was “the lone male driver,” the vehicle’s speeds varied from 40 to 60km/h, and the vehicle “veered partially into the #3 lane [which caused the officer] to brake hard to avoid a collision,” before pulling into the Polo Park Earls’ parking lot. Cst. Staples writes that they called for another officer, Cst. Miller, “to attend to execute the stop,” and watched “the lone male driver” exit the vehicle, briefly enter the restaurant, and return to the vehicle. The certificate indicates that Cst. Miller stopped the vehicle, identified Mr.

Abu-Al through his driver’s license, and completed and personally served the ticket on him. [ 4 ] Mr. Abu-Al testified in his own defence. He advised that at the time in question he was going to the Earls restaurant at Polo Park to pick up a delivery order for Uber Eats. He told the Court that he had his cellphone in a windshield-mounted holder with the Uber Eats app open, and that the Uber Eats app automatically ran advertisements. Mr. Abu-Al was adamant he was not holding the phone and he disputed that he was watching or playing a video while driving. As part of his testimony, Mr.

Abu-Al submitted a MP4 video file on a USB drive as exhibit two, which he said showed a representative sample recording of what the Uber Eats app would have looked like at the time, with advertisements automatically going across the screen every few seconds. Mr. Abu-Al’s evidence did not waver on cross-

examination, though he did agree he had the Uber Eats app open, and that he was paying attention to it. Submissions [ 5 ] The Crown took the position that there was no contradictory evidence in this case, where Mr. Abu-Al admitted to watching something on his phone, albeit a question remained about what, specifically, Mr. Abu-Al was watching – a video or the Uber Eats app. The Crown argued that the purpose of

section 215.1(2) of the HTA is to limit distracted driving and to keep others safe, and Mr. Abu-Al was distracted by the device he was watching, despite that it was mounted on the windshield and there was no evidence that Mr. Abu-Al touched the device. [ 6 ] Mr. Abu-Al emphasized that he did not touch the phone and underscored that it was mounted to his windshield. Law [ 7 ]

Section 215.1(2) of the HTA provides that: No person shall use a hand-operated electronic device while driving a vehicle on a highway unless, (

a) before using the device by hand, the person safely drives the vehicle off the roadway and keeps the vehicle stationary while using the device; or (

b) the device (

i) is a cellular telephone or another electronic device that includes a telephone function, and (ii) is configured and equipped to allow hands-free use as a telephone and is used in a hands-free manner. [ 8 ]

Section 215.1(1) of the HTA defines “hand-operated electronic device” as: (

a) a cellular telephone; (

b) another electronic device that (

i) includes a telephone function, and (ii) normally is held in the user's hand during use or requires the user to use his or her hand to operate any of its functions; (

c) an electronic device that is not otherwise described in clause (

a) or (

b) but that (

i) is capable of transmitting or receiving e-mail or other text-based messages, and (ii) normally is held in the user's hand during use or requires the user to use his or her hand to operate any of its functions; or (

d) any other electronic device that is prescribed as a hand-operated electronic device by the regulations. (« appareil électronique à commande manuelle ») [ 9 ]

Section 215.1(2) of the HTA further defines “use” regarding a hand-operated electronic device as any of: (

a) holding the device in a position in which it may be used; (

b) operating any of the device's functions; (

c) communicating by means of the device with another person or another device, by spoken word or otherwise; (

d) looking at the device's display; and (

e) taking any other action with or in relation to the device that is prescribed by the regulations. (« utiliser ») [ 10 ] There are further exceptions to

section 215.1(2) for calling or sending a message to a police force, fire department or ambulance service or for police, firefighters or ambulance operators in the course of their duties (see sections 215.1(3) and 215.1(4)); there is no evidence suggesting that any of these apply in this case. [ 11 ] The HTA allows the Lieutenant Governor in Council to make regulations regarding the

definitions of “hand-operated electronic device” and “use” (see

section 215.1(6)). [ 12 ] The Cellular Telephones and Other Hand-Operated Electronic Devices Regulation , MR 83/2010 (“the regulation”), offers

more information regarding

section 215.1(2) of the HTA. While the regulation provides more details about exemptions – what constitutes“hands-free use,” what it means for a device to be “used in a hands-free manner,” and specifically exempt devices – it does not prescribefurther actions constituting use different from those canvassed at

section 215.1(2) of the HTA. [13] Instead, at section 2(1), the regulation clarifies the meaning of “configured and equipped to allow hands-free use as atelephone” and “used in a hands-free manner”: (a) "configured and equipped to allow hands-free use as a telephone" means that a hand-operated electronic device is, without being heldin the user's hand, functionally able to be used as a telephone (

i) exclusively by voice commands, or (ii) by touching the device only once to initiate or accept a telephone call and only once to end it, while all other actions in relation to thecall are performed exclusively by voice commands; and (b) "used in a hands-free manner" means that a hand-operated electronic device is used only in accordance with the following criteria: (

i) it is not held in the user's hand while it is used, (ii) it is securely anchored to an interior surface of a vehicle, or held in a holder that is securely anchored to an interior surface of avehicle, in a manner that does not interfere with the vehicle's safe operation, (iii) it is within easy reach of the driver's seat, and (iv) it is used and controlled exclusively by voice commands or, if it is touched during use, it is touched not more than once to initiate,accept or end a telephone call or to use or cease using a non-communication function of the device.

Application [14] Given the defendant testified in this dispute hearing and there are contested issues compared to the Crown’s evidence, as theCrown indicated to the Court, the case of R v W(D), (SCC), [1991] 1 SCR 742 (“W(D)”), must be applied. W(

D) sets outthat I must determine: 1- If I believe the evidence of the accused, obviously I must acquit. 2- If I do not believe the testimony of the accused but am left in reasonable doubt by it, I must acquit. 3- Even if I am not left in reasonable doubt by the evidence of the accused, I must ask myself whether, on the basis of the evidencewhich I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [15] At the same time, section 63(1) of the POA indicates that a certificate that sets out evidence of the alleged offence and appearsto be signed by an enforcement officer, as is the case for exhibit one in the matter before the Court, is admissible and becomes “proof ofthe facts stated in the certificate in the absence of evidence to the contrary.” [16] I am satisfied that in the present matter, W(

D) is at play at least insofar as Mr. Abu-Al’s evidence contradicts Cst. Staples’certificate evidence. Mr. Abu-Al has provided contradictory evidence on the following points: (

a) the fact that his cellular phone was mounted to the windshield, (

b) that his device had the Uber Eats app open, with advertisements running, and no video/movie was playing, and (

c) that he was not watching a video/movie on the device. These points constitute at least “evidence to the contrary” to Cst. Staples’ corresponding evidence that: (a) “a smartphone [was] sitting on [the defendant’s] dashboard,” (b) “with a video/movie playing on the screen as he was driving,” and (

c) that “[t]he male continued watching the video.” I will consider these inconsistencies and weigh the evidence as I review the evidence before the Court on remaining elements of theoffence. I- Was Mr. Abu-Al using a hand-operated electronic device while driving on a highway on December 30, 2022 inWinnipeg, Manitoba? [17] That Mr. Abu-Al’s cellphone constitutes a “hand-operated electronic device” according to the HTA is well made out from theevidence before the Court. While Cst.

Staples’ description of the device as a “smartphone” with “a video/movie playing on the screen”does not provide the underpinning for what precisely Cst. Staples observed (it is, rather, a conclusory statement without including thebasis for said conclusion), combined with Mr. Abu-Al’s testimony that his cellphone was in a windshield-mounted holder before the

traffic stop, I am satisfied beyond a reasonable doubt that the device in question was indeed a cellular telephone, and thus constitutes a “hand-operated electronic device” per the HTA . [ 18 ] Likewise, the evidence before the Court from Cst. Staples’ certificate evidence and Mr. Abu-Al’s testimony all supports that Mr. Abu-Al was driving on a highway in Winnipeg, Manitoba, on December 30, 2022, just before 8:00pm. [ 19 ] I ask next whether Mr. Abu-Al was “using” the device. Reviewing each of the ways that “use” has been defined at

section 215.1(2) of the HTA , set out above, leads to the following:

a) Holding the device [ 20 ] Based on the full evidence before the Court, I see nothing to suggest that Mr. Abu-Al was holding the device.

b) Operating the device [ 21 ] Likewise, there is nothing before me suggesting that Mr. Abu-Al was operating any of the device’s functions. [ 22 ] “Operate” or “operating” is not defined within the HTA . The verb “operate” is defined by the Merriam-Webster Dictionary as, first, “to perform a function: exert power or influence,” second, “to produce an appropriate effect,” and, third, “to perform an operation or a series of operations.” Based on this, to be satisfied that someone was “operating any of the device’s functions” requires some active steps in relation to the device.

I am not satisfied that merely having the device set to operate – without more, including some specific action by the driver in relation to the device – is sufficient. [ 23 ] While there is evidence, from both Cst. Staples and Mr. Abu-Al, that the device was on and that the device was itself operating, I see nothing to suggest that Mr. Abu-Al was operating the device. There is nothing in Cst. Staples’ certificate evidence alleging that Mr. Abu-Al touched or appeared to manipulate the device in anyway. While Mr.

Abu-Al agreed, on cross-examination, that the device was reachable and testified it was mounted to the vehicle, he was adamant that he did not reach for the device while driving; Mr. Abu-Al noted that the device was set before he began driving. I see no evidence showing that Mr. Abu-Al was “operating any of the device’s functions” in this case.

c) Communicating by the device [ 24 ] Similarly, there is no evidence before the Court indicating that Mr. Abu-Al was communicating by the device with another person or another device – by spoken word or otherwise. [ 25 ] While I appreciate that Mr.

Abu-Al testified to having the Uber Eats app open and watching for further orders, I fail to see how this constitutes “communicating.” “Communicating” is also undefined within the HTA or the regulation, but the verb “communicate” is defined by the Merriam-Webster Dictionary as, first, “to convey knowledge of or information about: make known,” and, second, “to cause to pass from one to another.” While, based on the evidence before the Court, Mr. Abu-Al was, by his own testimony, awaiting and watching for information on the Uber Eats app, itself certainly a form communication more broadly, it does not show Mr.

Abu-Al communicating, or conveying knowledge or making something known or passing something on to another person or device. Rather, it shows Mr. Abu-Al waiting and watching for communications through an app. Whether an app such as Uber Eats could constitute “another person or another device” for the purposes of communicating through a hand-operated electronic device is a question left for another day.

d) Looking at the device’s display [ 26 ] Cst. Staples’ certificate evidence does speak to Mr. Abu-Al looking at the cellphone’s display, noting that “[t]he male continued watching the video,” which had previously been described to be playing on the screen of a smartphone sitting on the male’s dashboard. [ 27 ] Mr. Abu-Al testified that he was not watching a video but only the Uber Eats app with its automatic restaurant advertisements. On cross-examination, Mr. Abu-Al agreed that he had been trying to see an offer and that the Uber Eats app gives information for deliveries. [ 28 ] While I reject Cst.

Staples’ evidence that Mr. Abu-Al was watching a video, based on all the evidence before the Court, including Mr. Abu-Al’s agreement that he had been trying to see the contents of the Uber Eats app on his device and Cst. Staples’ uncontested certificate evidence regarding the manner of driving in this case – including that Mr. Abu-Al was watching the device – I am satisfied beyond a reasonable doubt that Mr. Abu-Al was looking at the device’s display while driving. This constitutes “use” of a cellular phone. I note further that Cst. Staples’ uncontested certificate evidence also speaks to Mr.

Abu-Al’s manner of driving – that his speeds were erratic, varying from 40km/h to 60km/h, and that his vehicle veered partially into a different lane, causing Cst. Staples to brake hard to avoid a collision – which, while outside of the specific elements of the offence at issue, appears to further support that Mr. Abu-Al was looking at the device’s display while driving. [ 29 ] Thus, while I accept Mr. Abu-Al’s evidence, I am satisfied beyond a reasonable doubt that Mr. Abu-Al did use a hand-operated electronic device while driving on a highway by looking at the device’s display.

This is consistent with Justice Toews’ decision in R v

Sutherland , 2018 MBQB 44 , that upheld that looking at a device’s display constituted “use,” even where the device was not “on.” Justice Toews agreed with the prosecutor that “[t]he legislation purposefully casts a wide net” (see paragraphs 16 and 17). Note that the Sutherland case did not involve the possible hands-free use exemption, where the defendant, in that case, was also found to have been holding the device. II- Does an exemption apply? [ 30 ] That I am satisfied that Mr. Abu-Al used a hand-operated electronic device while driving on a highway, however, is not the end.

Section 215.1(2) of the HTA allows for use of a hand-operated electronic device while driving a vehicle on a highway in particular circumstances. Use of a hand-operated electronic device is permitted while driving a vehicle on a highway where: (

a) before using the device by hand, the person safely drives the vehicle off the roadway and keeps the vehicle stationary while using the device; or (

b) the device (

i) is a cellular telephone or another electronic device that includes a telephone function, and (ii) is configured and equipped to allow hands-free use as a telephone and is used in a hands-free manner. [ 31 ] While the Court had the benefit of Justice Toews’ reasons in R v Sutherland regarding the use of a device, in that case it was also accepted that the defendant held the device by hand. There appear to be no reported cases considering the hands-free use exemption and its potential applications. [ 32 ] When it comes to an exception, such as the hands-free use exception outlined in

section 215.1(2)(

b) and the regulation, this is tantamount to a legislated defence, meaning that the burden of proof for such a defence – or exception – is no longer on the Crown.

Section 61 of the POA sets out that: The burden of proving that an exception, exemption, authorization or qualification provided by law operates in favour of the defendant is on the defendant. The prosecutor is not required, except by way of rebuttal, to prove that the exception, exemption, authorization or qualification does not operate in favour of the defendant, whether or not it is set out in the charge against the defendant. [ 33 ] Thus, the burden for this exception is not on the Crown.

It was, however, open to the defendant to establish the same, which would vitiate the prohibition that otherwise exists against using a hand-operated electronic device while driving. [ 34 ] As before, there is nothing before me to suggest that Mr. Abu-Al used the device in question by hand. The evidence is consistent between Cst. Staples’ certificate evidence and Mr. Abu-Al’s testimony, as well, that Mr. Abu-Al was driving on a highway with nothing to suggest he drove the vehicle off the highway or kept the vehicle stationary. [ 35 ] Given Cst.

Staples’ certificate evidence refers to the device as a “smartphone,” and Mr. Abu-Al testified that the device was a “cellphone,” and agreed that the device is a “smartphone,” that the device is capable of displaying apps such as the Uber Eats app and Google maps, that it can show text messages, and that it is equipped with Bluetooth, I am satisfied, beyond a reasonable doubt, that the device at issue is a cellular phone that includes a telephone function and that it may be capable of being used in a hands-free manner.

I note, however, that there is limited information before the Court as to whether the device was in fact “configured and equipped to allow hands-free use as a telephone,” though I remain satisfied that Mr. Abu-Al did not touch the device. [ 36 ] While

section 215.1(2) requires a device to be “equipped and configured to allow hands-free use as a telephone ” (emphasis added), I note that it does not restrict “use” to use “as a telephone.” Instead, “use” is restricted only to use “in a hands-free manner.” This is consistent with the regulation, and specifically article 2(1)(b)(iv), which indicates that “if [the device] is touched during use, it is touched not more than once to initiate, accept or end a telephone call or to use or cease using a non-communication function of the device ” (emphasis added).

Thus I am satisfied that the hands-free use exemption on the prohibition of using a hand-operated electronic device while driving extends beyond use exclusively as a telephone. [ 37 ] As per the regulation at section 2(1)(b), to constitute hands-free use, a device must: (

i) not be held in the user's hand while it is used, (ii) be securely anchored to an interior surface of a vehicle, or held in a holder that is securely anchored, without interfering with the vehicle's safe operation, (iii) be within easy reach of the driver's seat, and (iv) be used and controlled exclusively by voice commands or, if touched, be touched only once to initiate, accept or end a call or to use or cease to use a non-communication function of the device.

i- Not held in the user’s hand [ 38 ] Based on both Cst. Staples’ certificate evidence and Mr. Abu-Al’s evidence, I am satisfied that Mr. Abu-Al did not hold the device in his hand. ii- Securely anchored [ 39 ] Cst. Staples’ certificate evidence does not state that the device was mounted, though it does say that it was “sitting on [the defendant’s] dashboard.” While distinct from being mounted to the windshield, as Mr. Abu-Al testified it was, I note that the Court did not have the benefit of hearing Cst.

Staples be cross-examined on this point – or any other point – as the Crown chose to proceed by way of certificate evidence. While I recognize the defendant, in this case a self-represented individual, could have applied to the Court for the officer to be present to testify, that the Crown’s evidence ultimately remains untested by cross-examination cannot, alone, weigh in the Crown’s favour on contested issues – especially where the defendant’s evidence has been so tested and has been so consistent. [ 40 ] Without more, this aspect of Cst. Staples’ evidence has been cast in doubt by Mr.

Abu-Al’s clear, consistent, and adamant evidence, in direct and in cross-examination, that the device was mounted to the vehicle’s windshield. As such, I accept Mr. Abu-Al’s evidence that the device was mounted to the vehicle’s front windshield through a holder, and that it was thus securely anchored to an interior surface of the vehicle. iii- Within easy reach [ 41 ] Cst. Staples’ certificate evidence does not speak to how close or far the device was from Mr. Abu-Al while he was driving, though, on cross-examination, Mr.

Abu-Al agreed that the device was “reachable” while he was driving, albeit he said he did not reach for it while he was driving. Based on the evidence on this point, I accept that the device was within easy reach of the driver’s seat. iv- Voice commands or one touch [ 42 ] Lastly, to constitute hands-free use, I must ask whether Mr. Abu-Al used and controlled the device exclusively by voice commands, or, if he touched the device, did he touch it only once to start, accept or end a call or to start or end a non-communication function of the device? [ 43 ] There is no evidence on whether Mr.

Abu-Al used and controlled the device exclusively through voice commands. Nothing in Cst. Staples’ certificate evidence speaks to Mr. Abu-Al touching the device in any way, or appearing to speak to it. Mr. Abu-Al testified that he did not touch the device while driving and noted that he had the phone set before he began driving. He agreed the device was equipped with Bluetooth. While I remain satisfied, as canvassed above, that Mr. Abu-Al did not touch the device while driving, there is no indication as to whether Mr. Abu-Al used and controlled the device exclusively by voice commands.

While I am satisfied the device was equipped with Bluetooth, this is not the same as using the device exclusively via voice commands or even that it was necessarily set up for that purpose. Without more, I am not in a position to make such a finding or to make such inferences. [ 44 ] I am satisfied that the second clause, beginning with “if it is touched during use,” does not apply in this case where the evidence has established that Mr. Abu-Al did not touch the device while driving, and the “use” in question is looking at the device’s display while driving. [ 45 ] As there is no evidence before me that Mr.

Abu-Al used the device exclusively by voice commands and the one-touch clause does not seem to apply, though I am satisfied that he did not touch the device while driving, I cannot be satisfied that this condition has been met.

As such, the exemption for hands-free use has not been established in this case, bearing in mind the prohibited use in this case was looking at the device’s display. [ 46 ] I am mindful that it is not for the Court to imply or create new offences or to unnecessarily restrict legislated exemptions, notwithstanding that it was invited to do so where it was argued that the purpose of the prohibitions on using electronic devices while driving is to avoid distracted driving and to keep others safe, and that distracted driving, generally, ought to be prohibited.

The offence at issue, however, while obviously related to distracted driving, does not prohibit distracted driving as such. For the exemption to apply, a plain reading of section 2(1)(

b) requires that all of the elements listed, from (

i) to (iv), be present to constitute “used in a hands-free manner.” I am satisfied (

i) to (iii) have been made out, but section 2(1)(b)(iv) has not been established in this case. I see nothing that would prevent the exemption from applying in circumstances like those before the Court, including where there may be concerns about distracted driving, should the necessary components be made out for the hands-free use exemption, however.

Parenthetically, nothing appears to restrict the availability of alternative charges and insofar as other prohibited conduct may have been presented to the Court in the course of this matter, nothing has been made of such evidence, apart from the reference above to the uncontested evidence about Mr. Abu-Al’s manner of driving. Conclusion [ 47 ] With that, I remain satisfied, beyond a reasonable doubt, that Mr. Abu-Al did use a cellular phone – by looking at the device’s display – while driving on a highway on December 30, 2022, in Winnipeg, Manitoba.

Though I accept that the device was mounted to the vehicle, the required components for the hands-free use exemption have not been made out. A conviction will be entered. I will now hear comments on sentence. _______________________ Trask, J.J.P.