r v. MARK HARDOON, 2021 QCCQ 13171

Director of Criminal and Penal Prosecution c. Hardoon 2021 QCCQ 13171 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL « Criminal and Penal Division » N° : 500-61-522269-209 DATE : November 29, 2021 ______________________________________________________________________ PRESIDING BY GENEVIEVE CLAUDE PARAYRE JUSTICE OF THE PEACE MAGISTRATE ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor v.

MARK HARDOON Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On February 29, 2020, Mr. Hardoon drives on highway 15 south. His mobile phone is in a removable holder attached to a deflector of one of the air vents of his vehicle and he uses the “Google Maps” application (GPS) to guide him to his destination. [ 2 ] While changing lanes to get to the Jean-Talon exit, his vehicle hits a pothole.

The impact causes his mobile phone to fall to the ground, close to his right foot. [ 3 ] He takes advantage of his stop at a traffic light to pick up his mobile phone, wipe it on his sleeve and put it in his cup holder. [ 4 ] At the same time, constable St-Pierre is on foot patrol on Décarie Boulevard near the Jean-Talon exit. His position gives him a plunging view of the interior of the vehicles driving two meters below in the Jean-Talon exit of the highway 15 south. [ 5 ] From his position, he observes Mr.

Hardoon holding a black mobile phone with both of his hands and sees his left-hand thumb moving from the top to the bottom of the device. [ 6 ] Constable St-Pierre gets into his vehicle and joined Mr. Hardoon’s vehicle. While he is parallel to Mr. Hardoon’s vehicle, he notices that he is still holding his mobile phone and that his eyes are focused on the device. [ 7 ] Mr. Hardoon admits that he had his mobile phone in his hand at one point but denies having used it at that time. [ 8 ] The Court must therefore answer two questions: 1. Does the Court believe the version of Mr. Hardoon? 2.

Does the evidence as a whole raise a reasonable doubt?

[ 9 ] After careful analysis of all the evidence, the Court finds that the version of Mr. Hardoon is not credible nor reliable and does not ascertain a doubt in its mind. ANALYSIS [ 10 ]

Section 443.1 of the Highway Safety Code [1] ( H.s.c. ) creates a presumption by establishing that a driver who “ is holding a portable device in hand or in any other manner is presumed to be using the device .” [ 11 ] In other words, where the prosecution’s evidence demonstrates this factual framework, the Court is faced with prima facie evidence of the offence [2] . [ 12 ] Despite this, the defendant bears no burden to establish his innocence and only has to raise a reasonable doubt.

The burden always remains on the prosecution to establish without any reasonable doubt all the essential elements of the infraction [3] . [ 13 ] Where credibility is an issue, the Court must be thorough and entirely consistent with a proper application of the burden of proof in the context of conflicting testimony [4] . 1. Does the Court believe the version of Mr. Hardoon? [ 14 ] Mr. Hardoon’s testimony presents contradictions and adjustments in key elements of his defence. It is why the Court finds it not credible nor reliable. Here are some examples. [ 15 ] Mr.

Hardoon first states that his mobile phone fell near his right foot with the screen side against the ground. To support his affirmation, he tells the Court that when he looked at his mobile phone, he could not see any light emanating from it. [ 16 ] However, in cross-examination, he tells the Court that he could see a light coming from the screen that was facing the ground . [ 17 ] Questioned by the prosecution, he mentions that he does not remember where he was coming from or where he was going.

However, he later says that once he retrieved his mobile phone from the floor, he did not look at the screen because he did not need the GPS anymore. [ 18 ] If he does not remember his destination, how can he say that he did not need the “Google Maps” application anymore when his mobile phone fell? [ 19 ] It is also peculiar that Mr. Hardoon remembers precise information in regards of the manner his phone fell on the ground but can’t remember general information surrounding the event. [ 20 ] Mr.

Hardoon testified that he did not look at his mobile phone from the moment it fell on the ground to the moment he was stopped by the police officer. However, he later says that when he picked it up, he saw that the GPS application was still on. [ 21 ] In the view of the Court, this major contradiction is fatal to establish his credibility. [ 22 ] Indeed, his answers to the skillful questioning of his lawyer following this affirmation, visibly trying to explain and diminish this contraction, did not succeed in doing so.

[ 23 ] It is impossible under such circumstances that Mr. Hardoon did not look at the screen. This explanation does not hold up. [ 24 ] Even if the Court concludes that Mr. Hardoon only looked at his mobile phone when he picked it up, the Court is in the opinion that this constitutes usage. Indeed, Mr. Hardoon’s is using the GPS prior to the incident. In more than one occasion, the Superior Court reminded that looking at a mobile phone while holding it constitutes usage contrary to

section 443.1 H.s.c. [5] . 2. Does the evidence as a whole raise a reasonable doubt? [ 25 ] As the Court stated, Mr. Hardoon only has to raise a reasonable doubt in order to be acquitted of the infraction. [ 26 ] Reasonable doubt is not a far-fetched or frivolous doubt . It is a doubt based on reason and common sense that logically arises from the evidence, the lack of evidence or absence of reliable evidence [6] . [ 27 ] When the Court considers all the evidence, there is no doubt that arises from it. [ 28 ] T he report of constable St-Pierre is precise, detailed, and credible.

The Court finds that the presumption applied in the present situation since Mr. Hardoon’s evidence didn’t rebut it. [ 29 ] The analysis of all the evidence establishes without any reasonable doubt that Mr. Hardoon used his mobile phone contrary to

section 443.1 H.s.c . FOR THESE REASONS, THE COURT: [ 30 ] DECLARES the defendant guilty of the offence. [ 31 ] SETS the sentencing hearing for December 9, 2021, at 9:30 a.m., Room 5.08 to allow for representations pursuant to

section 224 of the Code of penal procedure . If the parties (and/or their representatives) have no representations to make regarding costs and the time allowed for payment of the fine, they are excused from attending. [ 32 ] In this case, the fine imposed shall be the minimum fine of $300.00, plus costs and contributions, payable within three (3) months. __________________________________ GENEVIÈVE CLAUDE PARAYRE Justice of the Peace Magistrate Me François Russo Director of Criminal and Penal Prosecution Counsel for the prosecution

Me Mack Singleton Ticket911 Counsel for the defendant Date of hearing : September 14, 2021