R. v. Testa, 2016 ONCJ 250

Court of Appeal No. 00-3468385B CITATION: R. v. Testa , 2016 ONCJ 250 ONTARIO COURT OF JUSTICE SEVERINO TESTA Appellant - and - HER MAJESTY THE QUEEN Respondent PROCEEDINGS AT TRIAL BEFORE THE HONOURABLE JUSTICE P. A. SCHRECK on February 26, 2016, at BRAMPTON, Ontario APPEARANCES : C. Mariuz Counsel for the Crown R. Burd Counsel for Severino Testa ONTARIO COURT OF JUSTICE TABLE OF CONTENTS

Ruling 13 Transcript Ordered: March 1, 2016 Transcript Completed: April 6, 2016 Ordering Party Notified: April 6, 2016 FRIDAY, FEBRUARY 26, 2016 MS. MARIUZ: Thank you. And again, for the record, it’s Mariuz, initial, C, addressing the matters for the City of Mississauga – or some of those matters for Mississauga. Line eight we have Severino Testa on the Mississauga appeal’s list. MR. BURD: Good afternoon, Your Honour. For the record it’s Burd, B-U-R-D, initial, R, on behalf of Mr. Testa. CLERK REGISTRAR: (inaudible), Your Honour. MR. BURD: Pardon? CLERK REGISTRAR: (inaudible) ...so I can allocate it.

What’s the line number? CLERK REGISTRAR: Line eight. MS. MARIUZ: Eight. CLERK REGISTRAR: Mississauga appeal’s list. MS. MARIUZ: Mississauga appeal’s list. CLERK REGISTRAR: Thank you. MR. BURD: Should have a transcript attached to it. CLERK REGISTRAR: Oh. You have two, Your Honour. THE COURT: Yes. CLERK REGISTRAR: You have two... THE COURT: Yes. CLERK REGISTRAR: ...of them? THE COURT: Yes. Sorry. What was the name? MR. BURD: Testa. THE COURT: Testa is one of them. Yes. Severino Testa. Yes.

MR. BURD: Yes. MS. MARIUZ: Sorry. THE COURT: Yes. MR. BURD: May I, Your Honour? THE COURT: Yes. Go ahead. MR. BURD: So in essence I’ve had conversation with Ms. Mariuz about the essential elements. I – I don’t know if Your Honour had a chance at the break to review the transcript. THE COURT: I did. MR. BURD: Okay. Thank you. In essence, the – the facts of the case, which I think will go – that what both parties can consent to is that as Sergeant Reifer (ph) was travelling on Highway 403 eastbound in the City of Mississauga.

He was travelling at approximately 120 kilometers per hour, overtaking the defendant’s vehicle, where he observes him holding a device, which he names as a cellphone, and some manipulation on – with his thumb. Then, subsequently, pulls that vehicle over and has a conversation with the defendant and then lays the charge that was before Her Worship. The applicant’s grounds for the appeal are two-fold. One is – is the evidence that was provided sufficient enough to make a finding beyond a reasonable doubt that the device in question was in fact a cell phone, absent any corroborative evidence.

And – and you can see, Your Honour, the submissions that were made to the justice of the peace at the time, one of the cases that was put to her was Regina v. Gill , which is a decision by your colleague, Justice Ready. UNIDENTIFIED SPEAKER FROM BODY OF THE COURT: Okay. MR. BURD: And, particularly, in that decision – and I don’t if Your Honour has a copy, I can certainly – can provide one. THE COURT: I do not have a copy of that... MR. BURD: Okay. THE COURT: ...decision. MR. BURD: Okay. I - will provide....

THE COURT: Nor - nor do I have transcript - I’m not sure anything – if it matters, but I don’t have transcripts of the submissions. The transcript I have simply notes that their... MR. BURD: Yeah. THE COURT: ...submissions were made... MR. BURD: But what.... THE COURT: ...but doesn’t have... MR. BURD: You know, it – and it’s.... THE COURT: ...the transcripts – the submissions themselves have not been transcribed. The justice of the peace does refer to this case Gill , but I don’t have a copy of it. MR.

BURD: I – I can forward a copy of the Gill decision and in – and I don’t know why the practise in – in POA court for them not to transcribe submissions, I’m not... THE COURT: Well, that... MR. BURD: ...a hundred percent.... THE COURT: ...that’s customarily the practise in – with respect to criminal appeals in the court of appeal, that unless there’s – in fact, I believe an of the court trial submissions... MS. MARIUZ: Yeah. THE COURT: ...are not ordinarily transcribed... MR. BURD: Yeah. MS. MARIUZ: There you go. THE COURT: ...so.... MR. BURD: Well.... THE COURT: Perhaps...

MR. BURD: I.... THE COURT: ...if – I don’t think you need an order for POA appeals, but perhaps if you do wish to have them it would make sense to specifically order them. Do you want to give me a moment to read this decision? MR. BURD: Certainly. It is a favourable decision to the Crown, but I do highlight a few area that I was going to bring to Your Honour’s attention and how it is different from the case at bar. THE COURT: All right. Thank you. MR.

BURD: So the reason why that – that the case was brought to Her Worship’s attention at the time was the threshold that Justice Ready set to be satisfied and – and take judicial notice of – of the device is – was in fact a cell phone. And in Justice Ready I – I – I bring to you – your attention to paragraph 11 where she says, When the vehicle was stopped he noticed a flip phone type cell phone on the console, near to the accused, who was the only person in that motor vehicle, which was a taxi.

It was this police officer’s opinion, after cross-examination, that the object in the hand of the defendant appeared to be a cell phone. The existence of a cell phone or a flip phone on the console when he stopped the accused is some corroboration of what the officer saw the accused holding earlier in his hand, up to his ear, was a cell phone.

Further, Justice Ready makes indication of the usage, that it’s up to his ear, he’s talking, there’s nobody else in the – so that it would be an absurdity, essentially, to think of it as anything else other than a cell phone because one does not normally hold devices to their left ear and talk when there’s nobody else within the vehicle, and that – and – and so the – the reason why that I – I bring up those two facets is because in the case at hand those types of observations were not noted.

Specifically, there wasn’t any corroboration and the officer was specific – specifically asked, after the traffic stop, did he view this device, did he review it, did he handle it, and he quite unequivocally said, no, no, no, no. I never – I never do that. The – those things are expensive. And further to that, the officer says - after he stops the defendant, he has a conversation and then after that conversation lays the charge. And I asked specifically, and I – and I draw your attention to the transcript, page seven, commencing at approximately line four, (I said) all right.

And now you said you had a conversation with the defendant and then came to the conclusion that the charge before the court should be laid.

To which the officer confirms and says, “Yes.” Then it goes to the issue about the corroborative evidence, and I said, “And I take it from looking at your notes that there was – there was no seizure or review of that device that you...” And he said, “My practise is never to touch someone’s cell phone.” So the reason why the Gill case, I think, sets precedent as to what evidence a justice of the peace must hear in order to make the conclusions that it - and in fact, was a cell phone and there’s corroboration after the traffic stop, the observations, that would lead one to believe it had to have been a cell phone and there’s no other alternative.

And in this case there’s a very – the officer says he – at a 120 kilometers per hours, he sees it for a few moments. And then I bring your – to your attention the learned justice of the peace’s decision. And in that she says.... THE COURT: Where are you? MR. BURD: I’m at page nine of the transcript, which is - approximately starting at line 18. Where she says, “He made the observations for a few minutes.” And – and one would naturally concede that moment and minutes are very different.

But I also bring your attention to her commentary about the evidence and – and what I’m – why I bring that difference between moments and minutes is because she admits that the evidence that she’s heard is weaker than what she normally hears. And I’m – and I was – I’m worried that the decision sound is based on the fact that there was observations made for minutes, rather than moments.

Because she says in her decision and I – and I bring your attention to page 10, she says, “There’s some” - and this is line 25, “There are some lacking details there as far as whether or not it was a cell phone.” She also states that, “Due to the fact that the officer identified the object as a cell phone twice, by virtue of that – that that concludes that it was a cell phone.” And – and I would submit that that would be evidence – a decision that was not – evidence not before the court that - in fact, that that stage it was in fact a cell phone.

He – he identifies it as a cell phone, but there isn’t anything – there isn’t a description of the – of the device; is it black, is it red, is it – is it illuminated, is it – is there anything of a description. And when we look at the Gill case and all the other precedent cases on cell phones, there’s – there’s usually been – and they’re always has been some descriptive nature of the device.

In addition to that support and corroborative evidence of the observation observed after the traffic stop, for one to conclude that the observations that were made at that fleeting moment, and especially in this case at a 120 kilometers per hour, was then subsequently corroborated with something. Now, in this case there was. There was a conversation. And the officer admitted that. After the conversation he made the conclusion that the charge should be laid.

In – in my – in my submission, Your Honour, there was a perfect opportunity for the prosecution to lead evidence on what the conversation was because we know there’s exemptions if there’s an emergency or so forth, so if the officer had a conversation – were you on your cell phone, what were you using it for, was it an emergency or – and that was tendered into evidence then – then that’s the corroborative evidence that one could support and – and – and make that conclusion. THE COURT: Why do you need corroborative evidence? MR.

BURD: Because in this situation there – it – when we read the evidence – first of all, the observations are made at 120 kilometers per hour and the.... THE COURT: But – no, I understand. But he wasn’t challenged in cross-examination. He wasn’t challenged that what he saw was a cell phone. MR. BURD: And – and that’s because the evidence that he described that there – they’re just naming something, a cell phone, and not having a description, to me is – is – is lacking.

When we think about the – we all know that it’s not illegal to hold a device in your hand while operating a motor vehicle that – that – that we all know to be trite. It only is, is if it’s a device that is capable of telecommunications and such.

THE COURT: Well, a cell phone is capable of telecommunications. MR. BURD: Absolutely. THE COURT: All right. So why does he need to corroborate – I mean, what – why – court’s hear descriptions of all sorts of objects without further detail; he attacked me with a knife, he hit me with a stick. I - I don’t understand why you would need further corroboration, he said what he saw was cell phone. We all know what that means. It’s a commonly used term and he wasn’t challenged on it.

Now, if he had been challenged on it that, you know, he couldn't have had good look at it, or suggesting to him that there was a mistake, maybe it was something else, but that didn’t happen. I’m not faulting to you, but he wasn’t challenged on his assertion that there was a cell phone. MR. BURD: And – and my submission and retort to that would simply be that the – the extent of which he described – he – there actually was no description of the device. He – he said he was holding a cell phone in his hand, but it – at least a colour, at least a make, something... THE COURT: Well.... MR. BURD: ...something to....

THE COURT: I mean, the issue is whether or not it was, you know, open to the Justice of the Peace to draw the conclusion that it was cell phone, not whether I would have drawn that conclusion. So the Justice of the Peace, based on the testimony that it was cell phone, concluded that it was a cell phone. Where’s the error that would justify me and interfering with that... MR. BURD: Well.... THE COURT: ...finding? MR. BURD: And – and I’d say the error is – is – is two-fold, is – is one is she says initially in her decision that there’s lacking evidence here.

But then she says, but he made these observations for several minutes. THE COURT: All right. So it’s an issue – you’re alleging a misapprehension of the evidence. MR. BURD: Certainly, which – which might have resulted in her mind - the lack of evidence is – is – is justified because it was observations made over several minutes, when in fact it was several moments and that - that, I think, is germane to, perhaps, her decision in – in making what was unsufficient [sic] evidence in her mind, satisfactory because of the time that – observation time.

Because and I’ll – and I’ll draw your attention to her actual wording in describing what – what is the norm as far as evidence that she’s used to hearing and then what, if fact, she heard. THE COURT: Well, take you back to page 10. MR. BURD: Yes. THE COURT: Where the line you drew my attention to, “There’s some lacking details there as far as whether or not it was a cell phone.” You’re reading that as part of her reasons, I’m not sure that it is. Is it not part of her

summary of the defence position? Because the paragraph begins, “The defence has raised the case of Regina and Gill ...” MR. BURD: Yes. THE COURT: And then further down, And what he’s the defence has raised, is that it’s lacking in this case. That all we’ve heard is that the officer was making his observations at a speed of 120 kilometers per hour. There’s not a lot of details and there’s some lacking details.” Is that... MR. BURD: I – I don’t think that’s all.... THE COURT: ...not her

summary of the defence position, as opposed to her findings? MR. BURD: I would submit the top – starting from page – the – line 10, certainly is, but that part, the last part, which I drew to your attention to, I – I wouldn't submit it – it was. THE COURT: But... MR. BURD: I – I.... THE COURT: ...if you look at – immediately following the part you drew my attention to, she continues to summarize the defence position, “And he indicated he also raised the issue that the officer made a statement...” blah, blah, blah.

So it sort of stuck in the middle there between other portions of the reasons that are clear summaries of the defence position. MR. BURD: Okay. So can I then draw your attention to page 11? THE COURT: Yes. MR. BURD: Where she says, “So I’m left with whether or not I have a reasonable doubt, or whether or not this is in fact a cell phone.”

And this is start – sorry. Starting at line five, “And I do agree with the defence that it is sparse in terms of evidence.” So that’s why I submit that that description there is more of her also – her opinion. It’s – it’s a not – it’s – it is a lot less then what we would normally hear. And her justification then – and this is the

part I – I – I tend to not agree with is, “But I do have the officer saying twice that he was holding a cell phone.” I – I don’t think that’s the threshold. So under those circumstances that she agrees that the evidence was sparse and I – and I – and I will submit, to Your Honour, those are her words. Those are her – that’s her opinion.

That with – in addition to the difference between a few fleeting moments and a few minutes may have assisted her in thinking that she can satisfy herself that that was a cell phone because it was viewed over several minutes, when in fact the evidence of the officer is a few moments.

And so we may say that semantics, but what is written in black and white is – is - her version is - is that she agrees with the defence that the evidence is weak, but because it’s been said that it was a cell phone twice and observed for several minutes then she feels that she can make that inference and - and I don’t think that is - what was – first of all heard or nor do I think that that is enough of proof beyond reasonable doubt, aside from evidence to the contrary.

And - and I also say that in other precedented cases, like the Gill one, Her Honour said, Not only was there the observations of the officer at the time of the alleged offence, but then it was then corroborated with the observation of that device at the time of the traffic stop. So I would submit to you that there – the description isn’t there of the device, the fleeting moments versus several minutes is also an issue, and then there isn’t any description of the device after the traffic stop or thereafter.

And furthermore, the statement that was germane in – in assisting the officer in making that conclusion was also excluded as part of the evidence at trial. So for those reasons I – I would submit that the Crown has – wouldn't have, in my view, proven the case beyond a reasonable doubt and subject to questions you may have that would be it in a nutshell. THE COURT: All right. Thank you. I – I don’t need to hear from prosecution... MS. MARIUZ: Okay. Thank you. THE COURT: Thank you. RULING SCHRECK, J. (Orally): Severino Testa was found guilty following a trial of an offence, contrary to

section 78.1(1) of the Highway Traffic Act of driving a motor vehicle while holding a handheld wireless communication device. At trial a police officer testified that while driving on the highway he pulled up alongside a motor vehicle, driven by the defendant, and as he did so he observed the interior and observed the driver of the motor vehicle holding a cell phone in his left hand and appeared to be attempting to manipulate the buttons on this device.

The officer testified that he made this observation for a few moments, following which he stopped the motor vehicle, had a conversation with the driver (the contents of which were not entered into evidence) and then issued a ticket for the offence, which the defendant was ultimately convicted of. The appellant submits that the verdict should be set aside on two bases: one, that there was a misapprehension of the evidence; and second, more or less, in argument that the verdict was unreasonable.

With respect to the misapprehension of the evidence at page nine of the learned Justice of the Peace’s reasons in summarizing the evidence of the police officer, she said, quote, He made the observation for a few minutes, until the driver observed him and then he slowed down and he pulled behind him and affected a traffic stop. End quote. Of course, the officer’s evidence was that it was a few moments and not a few minutes.

I agree that there is a significant difference between moments and minutes and that this was a misapprehension of the evidence, however as the Court of Appeal made clear in Regina and Morrissey , it is not every misapprehension of the evidence that results in a verdict being set aside, but only where the misapprehension plays a central role in the trial judge’s reasoning process. In this particular case the police officer testified that what he saw the defendant holding was a cell phone. That is an often used term, the meaning of which is clear to everybody who uses it.

And the officer was not challenged on this in cross-examination.

In my view, the fact that it was moments rather than minutes does not change the fact that the officer gave uncontradicted and unchallenged evidence that what he saw the defendant holding was a cell phone and a cell phone is, of course, a handheld communication device.

With respect to the verdict being unreasonable, the submission that is made is that there were no details given with respect to the cell phone that was observed, such as what colour it was or whether it was a flip phone and the like and the appellant relies in particular on the Justice of the Peace’s own recognition that the evidence in this case was, as she described it, sparse. I believe that it was sparse, but that is not really the issue. The issue is whether or not, based on the evidence that was heard, it was open for the Justice of the Peace to find that the device was a cell phone.

It may well be that there could have been more evidence, but I cannot say that in the circumstances it was not open to her to make the finding that it was a cell phone such that I would be entitled to interfere with that finding on appellate review. So for these reasons the appeal is dismissed. I’m notwithstanding the very able submissions made on behalf of the defendant. MS. MARIUZ: Thank you. FORM 2 CERTIFICATE OF TRANSCRIPT Evidence Act, Subsection 5(2) I, Tiffany Hewson, certify that this document is a true and accurate transcript of the recording of Severino Testa v.

R in the Ontario Court of Justice held at 7755 Hurontario Street, Brampton, Ontario taken from Recording(s) 3111_409_20160226_090219__30_SCHRECP, which has been certified in Form 1 by C. Duhaney. (Date) (Signature of authorized person) This certification does not apply to (i.e. Rulings, Reasons for Judgment, Reasons for Sentence, Charge), which was/were judicially edited.