R. v. Way, 2019 ONCJ 718

CITATION: R. v. Way , 2019 ONCJ 718 DATE: September 23, 2019 Court File: 7501563B Ontario Court of Justice At Orangeville BETWEEN: Her Majesty the Queen Respondent and Ronald Way Appellant Amanda Somek counsel for Appellant Nicole Klein licenced paralegal for Respondent Heard: September 6 th , 2019 On appeal from the conviction entered on February 14 th , 2018, by Justice of the Peace K. Murphy of the Provincial Offences Court. Justice B. E. Pugsley : 1 . The Appellant was convicted at trial of using a handheld device contrary to

Section 78.1 (1) of the Highway Traffic Act RSO 1990 as amended. 2 . The Appellant submits that the Learned Justice of the Peace erred in two respects: by drawing an improper inference as to what the Appellant would have done if the facts supported the explanation for the officer’s mistake at the roadside, and by improperly constraining the officer’s cross-examination such that the court’s credibility finding was undermined. 3 . The Appellant seeks an acquittal or at the least a new trial. He submits that I owe no deference to the findings of the Justice of the Peace below given that this is a

Part I appeal under

section 135 and following of the Provincial Offences Act RSO 1990 as amended. As such I can come to my own conclusion as to the proper result below and overturn the conviction and enter an acquittal. 4 . The Respondent submits that there was no error at trial. 5 . The evidence at trial came from two witnesses: the investigating officer, Provincial Constable Larry Matkowski, for the Crown and the defendant on his own behalf. 6 . The officer testified that he was observing traffic while situated in a gas station parking lot, including watching for drivers on cell phones. Across the road was a donut restaurant.

He noticed that the defendant’s vehicle was driving in the parking lot of the donut restaurant and signalling to turn south on County Road 124 directly in front of his unmarked police vehicle. He saw that the defendant had a cell phone in his left hand pressed to his ear. 7 . The defendant stopped facing south at the traffic lights directly in front of the officer and appeared to be carrying on a conversation on his phone while stopped at the lights – he was gesturing with his right hand as he spoke. 8 .

The officer pulled his cruiser behind the defendant’s vehicle and followed him when the light changed and they both started east on Highway 89. He pulled up beside the defendant and as he drove immediately to the defendant’s left in the passing lane he looked across at the defendant and testified that the defendant was still talking with his cell phone to his ear. P.C. Matkowski stopped the defendant’s vehicle. The defendant was the driver. 9 . The officer asked the defendant a question and the defendant made an utterance. After a voir dire the statement was admitted.

The officer asked the defendant when the officer approached his driver’s side window “Who were you talking to?” The defendant replied “Oh, you know, just business”. The officer asked to see if there was a reasonable excuse for the defendant to be on his cell phone. He concluded there was no such excuse. 10 . The officer observed a Samsung cell phone on the passenger seat of the defendant’s vehicle. The defendant’s windows were not tinted that he could recall and he had a clear view of him on his cell phone. It was not raining. There was no problem with the way the defendant was driving.

When he reached the driver’s window the defendant was no longer holding the cell phone. He was alone in his vehicle.

11 . The officer was asked in cross-examination if he had dealt with the defendant before. P.C. Matkowski agreed that he had written him a ticket a couple of years before. The prosecutor objected to the line of questions as being irrelevant. The defendant’s counsel submitted that it was relevant because it was one of the reasons the officer charged the defendant. The presiding Justice of the Peace allowed the question and the officer denied that he had asked the defendant if he was “the Ron Way who had had eight Uncles die”. He denied stating to the defendant that “we’ll find something to get you on”.

The officer testified that he did not know the defendant, that he had stopped him on one prior occasion for a minor violation two or three years prior. The officer was asked if he had a “quota” and said that there was no such thing. 12 . The defendant testified that he was on his way to do some business at the stockyards in Cookstown. He got a coffee at the donut shop. As he exited the donut shop he had to provide a sample of his breath into an ignition interlock device in his vehicle (he called it a Breathalyzer).

He held the device in his left hand as he drove onto County Road 124 and up to the lights, and continued to hold it as he turned. He was not on the phone. His windows were slightly tinted and slightly dirty. He saw the officer’s lights and pulled over. As soon as he pulled over his phone was ringing and he answered it and said he couldn’t talk and hung up. The officer asked for his licence, went back to his cruiser and then came and gave him a ticket for driving with a hand held device. P.C. Matkowski said, “You’re the Ron Way who had eight uncles who died in six months”.

He thought that the officer was commenting on the fact that in his earlier ticket he’d had several adjournments. The officer asked to see his phone and he showed it to him and then he drove on to Cookstown. To activate the ignition interlock he blows from his mouth into the end of the device. 13 .

The Appellant submits that the court below erred in two respects: first by curtailing cross-examination as to prior contact between the officer and the Appellant, and second by inferring from the fact that the Appellant did not explain to the officer that it was not a cell phone in his hand but rather the interlock device. 14 . On the first submission it is apparent that the officer did indeed answer the Appellant’s questions about the prior contact with the Appellant, in cross-examination and in reply. He had given him a ticket for a different offence some years before.

He did not know the Appellant and did not recognize him when he stopped him for the hand-held device offence. Although the Respondent’s agent below objected to the relevancy of these questions they were asked and answered. The Appellant’s counsel was laying the ground work to avoid criticism under the Rule in Brown and Dunn and was able to do so. 15 . After permitting the Appellant to continue, it was within the discretion of the Learned Justice of the Peace to curtail this line of questioning at the time she did so.

The Appellant’s own evidence as to the officer’s prior ticket and as to what was said to him when stopped this time was before the court and required a credibility assessment by the court below. Nothing about the court’s control of the cross-examination impacted that assessment. 16 . On the second issue the Appellant submits that the court erred in commenting on the failure of the Appellant to say to the officer, in effect, I wasn’t on my cell phone it was my ignition interlock device.

He submits that the court improperly inferred from his failure to mention the device to the officer that the Appellant did indeed have a cell phone to his ear and not a device to test him for alcohol. 17 . The Learned Justice of the Peace at trial did comment in her reasons about the Appellant’s failure to mention to the officer the excuse he raised in his evidence at trial however it was not the only basis for her credibility finding and she did not infer guilt from the absence of objection.

Rather the failure of the Appellant to object that he had been using an ignition interlock device rather than a cell phone was a reasonable observation in assessing the Appellant’s credibility and was mentioned in that context. In my view she was entitled to do so as part of her assessment of the evidence of the Appellant under R. vs. W (D) . 18 . The court below was alive to the W(

D) issue and the issue of the possible interlock device was referenced in the submissions made moments before her decision. The trial Justice of the Peace heard the evidence and observed the witnesses and her conclusion as to credibility is entitled to deference. 19 . I do not give effect to the Appellant’s submission that because of the broad appellate powers of the court on a

Part I or

Part II appeal under sections 135 and following of the Provincial Offences Act the findings of credibility made by the court below should be given less deference than in a

Part III appeal. 20 . In my view those broad powers of review on appeal should be balanced by the nature of the

Part I offences and the intent of the Act to provide a simple and fair procedure for the disposition of what are normally minor regulatory offences. This is one basis for the simplified appellate review process, not any lack of deference to the credibility findings of the court below. 21 . R. v. Michaud ( 2015 ONCA 585 ) (Ontario Court of Appeal) supports the conclusion that in a

Part I and

Part II appeal the findings of credibility of the trial Justice of the Peace should be entitled to deference on appeal (see para 48). Other findings of fact below are entitled to less deference due to the broad powers of the appeal court under

section 135 and following. 22 . It is clear from the record that the court below had an abundance of evidence upon which to conclude that the Appellant was using a cell phone while driving: the officer was observing traffic for persons on cell phones, the officer saw him doing so while driving three times, holding the cell phone to his ear, the phone was in sight when the officer came up to the Appellant’s vehicle, and the Appellant’s immediate statement upon the officer’s approach was capable of being considered as an admission of his guilt. 23 . The presiding Justice of the Peace had an ample basis for her conviction of the Appellant. 24 . The appeal is dismissed.

B. E. Pugsley Justice, Ontario Court of Justice