R. v. Russo, 2013 ONCJ 438

Citation: R. v. Russo , 2013 ONCJ 438 HER MAJESTY THE QUEEN v Giovanni Russo Ontario Court of Justice Toronto, Ontario E. Bobnar for the Prosecution G. Faulkner Agent for the Defendant Before: J. Opalinski J.P. Heard: May 6, 2013 Delivered: June 14, 2013 INTRODUCTION: 1 . The defendant, Giovanni Russo, (hereinafter referred to as the defendant) is charged on the 14 th day of October, 2012 at 4:23 pm., at southbound Jane Street at Trethewey Drive, in the City of Toronto, with the offence of drive hand-held communication device contrary to

section 78.1(1) of the Highway Traffic Act, R.S.O. 1990 c. H.8 . 2 . The defendant by way of his agent Mr. G. Faulkner entered a plea of not guilty on May 6, 2013. The court heard evidence only from Toronto Police Officer Nened Stojic. CHARGES: 3 .

Section 78.1(1) of the Highway Traffic Act , supra, provides that: No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. ISSUE: 4 . The issue before the court is: whether or not the defendant did drive a motor vehicle on a highway while holding or using a hand- held wireless communication device or prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages in contravention of

section 78.1(1) of the Highway Traffic Act , supra . ARGUMENT FOR THE PROSECUTION: 5 . The prosecution submits that the officer’s evidence is clear and concise. He observed the defendant operating a motor vehicle, stopped at the red light, holding in his left hand a fluffy white dog and in his right hand a black cellular device, with his thumb maneuvering in the motion of texting, which said device he identified to be a Blackberry. This observation was first made while the officer was stopped at the intersection of Jane Street and Trethewey Drive for the red light facing northbound. When the defendant

proceeded to drive southbound, the officer’s vehicle passed the defendant, and the officer saw that the defendant continued to be driving while holding and texting this black blackberry device. The defendant was stopped by the officer who observed the same black cellular device that he had observed the defendant to be holding while stopped for the red light and while driving, on the console in the Defendant’s vehicle. There was no evidence offered to refute the evidence of the officer. As such, the defendant was charged with being in contravention of

section 78.1(1) of the Highway Traffic Act , supra . ARGUMENT OF AGENT FOR DEFENDANT : 6 . The agent for the defendant has made an argument that there was no notation in the officer’s notes indicating that the device he observed the defendant to have held was a black blackberry device. It is in the conversation with the defendant after he was stopped by the officer that the officer satisfied himself that the device was a blackberry cell phone.

The agent for the defendant further submits that the only evidence before the court was that the device was a black object in the defendant’s hand and there is no evidence that it was a wireless device capable of texting as prohibited by s. 78.1(1) of the Highway Traffic Act , supra. As such the prosecution has not established its case beyond a reasonable doubt in the absence of evidence showing that the device in the defendant’s hand was a wireless device capable of texting and that this is an essential element of the offence that the prosecution must prove beyond a reasonable doubt.

EVIDENCE FOR THE PROSECUTION: 7 . The court heard evidence from Toronto Police Officer Nened Stojic. 8 . The evidence of Officer Stojic may be summarized as follows: (

a) On October 14th, 2012 at approximately 4:23 pm, Officer Stojic was travelling northbound on Jane Street and was stopped for a red light at Trethewey Drive in the City of Toronto. Jane Street is a road that has two lands running northbound and two lanes running southbound with left had turn lanes. The officer was in the passing lane. (

b) He observed the defendant to be travelling southbound on Jane Street in a white Ford Pickup Truck, bearing licence plate number 3257YT. The white Ford Pickup Truck is a motor vehicle. The defendant was in the passing lane. He had his driver’s side window rolled down half way and held a white fluffy dog in his left hand, while looking up and down. (

c) The light changed to green and the officer observed the defendant proceed southbound on Jane Street at approximately 20 to 25 kilometers an hour, drawing closer to the officer’s location. The object that the officer observed to be in the defendant's right hand was a large cell phone; the defendant looked up and down 5 times and was doing something to the cell phone, which appeared to the officer to be texting. The defendant continued to do this as the officer drove closer to the defendant and the defendant did not notice the officer. (

d) The officer further gave evidence that there was nothing obstructing his view of the defendant, including the defendant’s dog. His view did not change and he observed over the course of 5 to 6 seconds as the defendant’s vehicle moved forward, that in the defendant’s right hand was an object and his thumb was on top of the device moving. This object was a large black cell phone. (

e) The officer turned around, never losing sight of the defendant’s vehicle, and stopped the defendant. As the officer walked up to the defendant’s vehicle he observed through the driver’s side window the black blackberry phone on the console, which was the same cell phone that he had seen the defendant using while driving. (

f) In cross examination the officer reiterated that when he drove up to the defendant he saw him with the object, being a large cell phone, which was two inches wide by three inches long, in the defendant’s hands. The defendant’s fingers were on top of the phone, moving in a manner of texting. (

g) The officer acknowledged that nowhere in his notes did he write that the phone was a blackberry, but he was certain, after discussions with the defendant about the cell phone and its use, that the device the defendant had used was a blackberry device. A blackberry is a wireless hand-held communication device and as such the officer charged the defendant with having violated s. 78.1(1) of the Highway Traffic Act , supra . EVIDENCE FOR THE DEFENCE: 9 . The defendant chose to call no evidence.

THE LAW: 10. The defendant is charged with the offence of drive hand-held communication device pursuant to

section 78.1(1) of the HighwayTraffic Act, supra. 11. CATEGORIZATION OF OFFENCE – The court must first determine which category of offences this offence falls into. 12. R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299 sets out the three categories of offences. These threecategories of offences are mens rea, strict liability and absolute liability. Dickson J stated: 1. “Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must be provedby the prosecution either as an inference from the nature of the act committed, or by additional evidence; 2.

Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of the prohibited actprima facie imports the offence, leaving it open to the accused to avoid liability to proving that he took all reasonable care. This involvesconsideration of what a reasonable man would have done in the circumstances. The defence will be available if the accused reasonablybelieved in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid theparticular event.

These offences may properly be called offences of strict liability. 3. Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault.” 13. This court must ask the question: is the offence that the defendant is charged with a mens rea, strict liability or absolute liabilityoffence? As Justice Dickson points out in R. v. Sault Ste. Marie, supra, for an offence to be categorized as a mens rea offence it shouldhave contained words that purport some mental element such as ‘willfully,’ ‘with intent’, ‘knowingly’ or ‘intentionally’.

These aretypically criminal offences where as public welfare offences are prima facie strict liability offences. While the majority of publicwelfare offences are presumed to be strict liability offences, in the absence of language to the contrary, there are some offences that arestill referred to as absolute liability offences. 14. This court adopts a similar position taken in the decision of R. v. Grech-Vennare [2013] O.J. No. 2387 and finds that the offence ofdrive motor vehicle hand-held communication device contrary to s. 78.1(1) of the Highway Traffic Act, supra, to be an absolute liabilityoffence. 15.

The defendant's agent has referred to the decision of R. v. Sherry-Mae Hayes, which is a decision from the Ontario Court of Justicein Newmarket sitting as a Provincial Offences Appellate court. Justice Wright focused in his decision on ‘the absence in the officer’snotes of any recollections of the matter going ahead’. In essence the court found ‘that in the absence in the police officer’s notes ofspecific recollection of important information’ renders that evidence, as it is tendered in court, not reliable. In R. v.

Sherry-Mae Hayes,supra, the court noted that there was absolutely no notation in the officer’s notes about the training he had received with regard to the useof a speed measuring device or what had happened in that case. 16. However, the case law pertaining to

section 78.1(1) of the Highway Traffic Act, supra, may be summarized in the followingmanner: In R. v. Kazemi 2012 ONCJ 383 , [2012] O.J. No 2826 the appellant at trial gave evidence stating that her cell phone,which had been on her seat, had fallen onto the floor and that when she stopped for a red light at the intersection she retrieved her phonefrom the floor of her car. She had not been using it on the night in question and introduced cell phone records to corroborate this point. The officer had testified that he had seen her holding an opened black Nokia flip cell phone in her right hand. At trial she was convictedof violating

section 78.1(1) of the Highway Traffic Act, supra, the evidence of the officer was accepted as it was found that by merelyholding the device was enough to have the elements of the offence made out and that it was not necessary to hear evidence that the cellphone was operational or capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 17. The appellant raised three issues in her appeal: First, her right to a fair trial was compromised by a misleading notice of trial; Second, that the word holding in the said

section of the statute should be interpreted so as to mean holding for the purpose of using thewireless device in the manner of sending or receiving communication; Third, that the prosecution must prove that the device is operative at the time when the defendant was holding the said device. 18. Justice Nakatsuru in R. v. Kazemi, supra, indicated that the court should look at the

interpretation given to the words “holding” and“using” a hand-held wireless communication device or other prescribed device. Justice Nakatsuru makes reference to Driedger’sConstruction of Statute which states at p. 87:

Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act and the intention of Parliament. 19. An argument was made out by the appellant in R. v. Kazemi, supra, that a ‘literal

interpretation of holding would lead to absurd results where a person could be penalized for holding a cell phone even when he or she had no intention of using it’. (at para 15) In essence what the appellant argued was that the words while holding or using in

section 78.1(1) of the Highway Traffic Act , supra should be read separately because the two words are separated by the word or and that holding should be interpreted in such a manner to mean holding for the purpose of sending or receiving communication wirelessly. The appellant further argued that she had not used her phone at the relevant time and that it was incumbent upon the prosecution to prove that the cell phone was operative at the time when it was being held in that it was capable of sending or receiving wireless communication.

At trial the court held that the offence was made out if the Defendant was either holding or using the hand-held communication device and she was holding a cell phone that was flipped open. 20. Justice Nakatsuru stated that: “Section 78.1(1) prohibits the ‘holding or using’ of a wireless communication device. If holding for the purpose of receiving or transmitting is read into the provision, then the meaning of ‘holding’ would collapse into ‘using’ and would make the employment of the word by and large redundant. This could not have been the intention of the legislature”. 21.

Consequently, reference to both words must give meaning to both words, otherwise the legislation would have made reference to the words as ‘holding and using’ and not ‘holding or using’. 22. Justice Nakatsuru further held that it is necessary to look at the intent of the legislature when it drafted

section 78.1(1) of the Highway Traffic Act , supra. The overall intent of the legislation was road safety and to achieve that goal both the holding and using of wireless communication devices was sought to be addressed through the legislation. 23. The Honourable J. Bradley, Minister of Transportation at the time when Bill 118, being, Countering Distracted Driving and Promoting Green Transportation Act, 2009 was introduced, summarized the legislation as follows: ‘Our eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cell phones while driving.

The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads. For safety’s sake, drivers should focus on one thing and one thing only: driving.’ (at para 19) 24. Thus the purpose and intent of the legislation was to stop people from being distracted when driving by talking or texting when they are driving. 25.

Justice Nakatsuru found that when looking at the purpose and intent of the legislation the words “holding” or “using” a hand-held wireless communication device ‘must be interpreted in a manner that has regard to the design and function of such devices’ and in particular the word “holding” should be interpreted contextually with regard to ‘other words in the provision’ and the objective of the legislation. 26. Justice Nakatsuru concluded that when looking at the plain meaning of the word holding it should ‘require more than merely touching or a brief handling of such a device.

It must mean more than simply possessing or carrying a device’. (at para 23) 27. Consequently, what is central to Justice Nakatsuru’s decision is the

interpretation of the word “holding”. If we accept that the appellant was not using her cell phone as she gave evidence to that effect but picked up her phone from the floor to put it on the seat beside her from where it had fallen, when stopped at a red light and when it was safe to do so, then R. v. Kazemi , supra, stands for the proposition that a momentary handling of a cell phone does not fall within the meaning of “holding” as set out in

section 78.1(1) of the Highway Traffic Act , supra. It is on the second grounds sought on appeal that Justice Nakatsuru granted the appeal and acquitted the appellant. 28. It is interesting to note that the court in R. v. Chadwick, [2011] O.J. No. 3748 , took the position that ‘the defendant was guilty by virtue of holding the device in his hand’ as the legislation made it clear that there ‘should be no distraction in the hands of drivers while operating a motor vehicle whether the hand-held wireless communication device was working or not’.

29. The evidence of the defendant had been that he had two devices and opened his LG flip phone to try to pair it with his blue tooth device. The defendant gave evidence that the phone was not working but that he was driving with the phone in his hand. He was not trying to make a call and only held the LG device briefly to his ear to see if it was working and determined that it was dead and as such not capable of transmitting wireless communication of any kind. There was no consideration whatsoever with regard to how the device was held. The mere holding of the wireless hand-held communication device caused the Defendant to be in violation of

section 78.1(1) of the Highway Traffic Act , supra. 30. In R. v. Kazemi , supra , Justice Nakatsuru went on to consider the third ground sought in the appeal, that being, whether or not the prosecution must prove that the device is operable. Justice Nakatsuru once again addressed the wording of the statute and the intent of the legislation and concluded that all the prosecution has to prove is that the device is a hand-held communication device and this was done. As such the appellant was not successful on the third ground of her appeal. (at para 29) 31.

To place any other onus on the prosecution could ultimately lead to the police having to confiscate wireless communication devices as evidence to prove their ability to have been operational at the time, which could be seen as an inordinate invasion of the privacy rights of the individual, given the amount of personal information that may be contained on such devices. 32. In R. v. Pizzuro [2012] O.J. No. 860 , Justice Beatty took the opposite approach. The evidence at trial was that the officer passed the Defendant and saw a light emitting from a phone that he had in his left hand while driving.

The defendant was either reading or texting and when he saw the officer he dropped the phone. The defendant was found guilty of the offence at trial. 33. On appeal, the defendant argued that the key element of the offence was not proven, namely, it was not shown by the prosecution that the device was capable of receiving or transmitting telephone communications, electronic data, mail or text messages even if the defendant is found to be holding such a device. 34. The court in R. v. Pizzuro, supra, found that the only evidence adduced was that the defendant appeared to be driving with a cell phone in his hand.

The prosecution must also produce evidence that the device is capable of receiving or transmitting telephone communications, electronic data, mail or text messages and this was not done. The court held that this was an essential element of

section 78.1(1) of the Highway Traffic Act , supra, and because the prosecution had not produced any evidence to prove this essential element of the said offence, Justice Beatty allowed the appeal. 35. In R. v. Gill [2012] O.J. No. 2511 , Justice Ready held that the officer in his evidence had said that he clearly observed the defendant to be holding a cell phone to his ear and to be talking. The defendant was convicted at trial as the justice of the peace had concluded that the device, being a cell phone, was a hand-held communication device.

Justice Ready upheld the trial justice’s decision, citing that there was no other common sense conclusion that could have been reached by the justice of the peace at trial than to have found that a cell phone is a wireless communication device and that judicial notice can be taken to that effect, given the evidence presented at trial that the device was positioned at the defendant’s ear, the defendant appeared to be talking, there was no one else in the car with the defendant and when stopped by the officer the device was observed by the officer in the console to be accessible by the defendant. ANALYSIS: 36.

This court finds that it is necessary to look at each part of

section 78.1(1) of the Highway Traffic Act , supra, in order to establish an appropriate test to be applied to determine whether or not the elements of the offence have been made out beyond a reasonable doubt, by the prosecution. 37. The questions that the court should ask are as follows: First, is the person driving a motor vehicle on a highway; Second, is she/he doing so while holding or using a hand-held wireless communication device or other prescribed device;

Third, is that device capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 38. Consequently, the person must be driving a motor vehicle on a highway while either holding or using a hand-held communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 39.

If the prosecution cannot prove beyond a reasonable doubt through the evidence they adduce that an individual is driving a motor vehicle on a highway while holding or using a device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages, then the elements of the offence have not been made out. 40. This court accepts the reasoning in R. v.

Kazemi , supra , that the momentary handling of a hand-held wireless communication device does not constitute holding as envisioned by the spirit and intent of the legislation. ‘Holding’, as defined in Webster’s New Universal Unabridged Dictionary Deluxe Second Edition, Dorset & Baber , means the act of keeping or retaining. Using is defined as to put or bring into action or service, to employ for or apply for a given purpose, to practice, to exercise, to consume to exhaust. Capable means able to hold, contain or receive. 41.

However the use of the word or between the words holding and using requires that the prosecution need only prove either or, although it may be suggested that in most instances an individual needs to hold the device in order to use it and as such they are holding it so as to use the device. Nevertheless, the individual can be using the device without holding it and that would place him or her in violation of

section 78.1(1) of the Highway Traffic Act , supra, unless he or she is driving in a hands-free mode which is allowed pursuant to

section 78.1(3) of the Highway Traffic Act, supra, or falls within one of the exceptions contained in subsections 4, 5, 6 or 7. 42. This court accepts that the court can take judicial notice that a cell phone is a wireless hand-held communication device and that the prosecution by the plain use and meaning of the words of the statute need only show that this device is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. The prosecution need not show that this device was actually working at the time of the offence.

To be capable of working means that it can work in receiving or transmitting telephone communications, electronic data, mail or text messages. To extend this beyond this point would require the officer to seize the device as evidence that it was actually working when, an individual was stopped by the officer and charged pursuant to

section 78.1(1) of the Highway Traffic Act , supra. I do not believe that taking such extreme measures was the intent of the legislation. 43. It may be suggested that in R. v. Kazemi , supra , the court did take notice of the Defendant’s evidence that her cell phone records showed she had not made or received any telecommunication be it phone or electronic communication at the time that the officer alleged in his evidence that it appeared to him that the defendant was punching numbers on her cell phone.

He did not actually observe this and the court focused in its analysis on ‘holding’ rather than ‘using’ the said device and found that momentary holding for the purpose of retrieving a phone from the floor of a vehicle to put it on the seat, in a safe manner while stopped for a red light, did not constitute ‘holding’ as envisioned by the legislation. 44.

In our fact situation, the officer observed the defendant to be travelling on a highway being Jane Street, in a motor vehicle, stop for a red light at Trethewey Drive, hold his dog in his left hand and a black blackberry device in his right hand with his thumbs motioning in the manner of texting.

The officer described the cell phone that he had seen the defendant to be holding and indicated that the cell phone that he observed to be on the console of the Defendant’s pickup truck was indeed the same device that he had seen the defendant to be holding and texting with, while stopped at the red light and continued to do so as he proceeded to drive southbound on Jane Street at approximately 20 to 25 kilometers per hour. 45.

The court can take judicial notice that a black blackberry is a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. Specifically, the officer’s evidence was that he observed that the defendant was holding a large cell phone. The court can take judicial notice that a cell phone is a hand-held wireless communication device. The only evidence that the court has before it is the officer’s evidence, namely, that the black object the officer saw in the defendant’s hand was a cell phone. 46. Unlike the case of R. v.

Kazemi , supra, where the appelant gave evidence with regard to her conduct, in our case the defendant has offerred no evidence with regard to the type of device he was holding in his right hand while driving. On the contrary the officer was clear in his evidence in chief and in cross examination as to how he concluded that the device the defendant was holding was a hand-held communication device and that he observed the defendant to be holding the cell phone in his right hand and moving his fingers in the motion of texting, while holding his dog in his left hand and driving at the same time.

The defendant was travelling at 20 to 25 kilometers an hour and the officer was in a position to have had a clear view into the defendant’s vehicle to have made this observation.

47. The court has heard no evidence to refute the evidence of the officer which is: the defendant was operating a motor vehicle on a highway while holding a black cell phone in his right hand and a cell phone is a hand-held communication device, capable of receiving or transmitting telephone communications, electronic data, mail or text messages. The officer had an independant recollection and gave viva voce evidence of this, which evidence has not been refuted even though there was no specific notation in the officer’s notes that the device was a blackberry.

As such the court finds that the prosecution has made out the elements of the offence beyond a reasonable doubt. 48. Every case turns on its own facts and if this court applies the analogy in R. v. Sherry-Mae Hayes, supra, then what is crucial in our fact situation is that the officer gave un-refuted viva voce evidence that what he observed the defendant to be holding and using was a cell phone. DISPOSITION: 49.

For the reasons set out above, the court finds that the prosecution has met its onus of proving beyond a reasonable doubt that the defendant operated a motor vehicle while holding a hand-held wireless communication device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages on October 14, 2012. The court finds the defendant guilty of contravening

section 78.1(1) of the Highway Traffic Act , supra . Dated the 14 th day of June, 2013, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.