R. v. Chadwick, 2011 ONCJ 402

Citation: R. v. Chadwick , 2011 ONCJ 402 Judgement – Timothy Chadwick Hand Held Communication Device sec 78.1(1) H.T.A. Court Date June 6, 2011 1030h - Courtroom 300 Hamilton Reserve Judgement July 14, 2011 1030h - Courtroom 300 Hamilton The defendant, Timothy Chadwick is charged with Driving with a hand held communication device contrary to sec. 78.1(1) of the Highway Traffic Act. The prosecutor presented their case and the court heard evidence from Constable Tom Chalmers of the Hamilton Police Service. The officer is experienced and has over 30 years service.

He stated on Sept. 10, 2010 at approximately 1122 am he was in cruiser 739 and observed a 2000 Mercury licence BHBW 158 northbound on Locke Street S near Main St. W. In the city of Hamilton. The officer was stopped at the light on Main Street West, the first vehicle and had a clear unobstructed view of the intersection. He observed the defendant driving his vehicle northbound through the intersection holding a phone in his left hand to his left ear. He pursued the defendant’s vehicle and stopped him a short time from the intersection.

His observations included seeing two cell phones on the passenger front seat, one of which he described was a blackberry. The defendant identified himself with a valid Ontario Driver’s licence including the photograph which the officer confirmed was the defendant. The officer indicated he was absolutely sure the defendant was holding a phone up to his left ear. During cross examination by the defendant’s agent, the officer stated he didn’t know if the cell phone was working and didn’t test the phone to determine whether the phone was capable of transmitting or receiving a signal.

The defendant, Timothy Chadwick took the stand in his own defence and admitted driving his motor vehicle on the date, time and location of the offence. He advised the court he had two cell phones, one a blackberry, and one a LG flip phone. He opened the phone to show the court the LG phone and its’ operation. The defendant further stated he had his blue tooth wireless communication device and was trying to get the flip phone to work. He said the blue tooth device and the phone were not communicating together. Mr.

Chadwick said he held the LG phone to his ear for only a few seconds to see if the phone was going to work. He was not trying to make a phone call. The defendant determined the LG phone was dead and was not capable of transmitting or receiving any calls. During cross examination, the defendant agreed he was driving and had the cell phone in his hand. He also stated the service for his phone was not disconnected. Essentially the defendant’s defence is the phone he had in his hand was not capable of transmitting and receiving a signal and therefore the

section does not apply. The Prosecution submitted the defendant admits holding the cell phone in his hand. The

section reads “ no person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device.....” The fact that the phone was not working is irrelevant. The fact the battery was not working is not a defence to this charge. The defendant through his agent submitted that one of the elements of the offence is the fact that the cell phone must be capable of transmitting or receiving telephone communications. In this case the defendant described the LG flip phone as “dead” and wasn’t capable of receiving or transmitting communications.

The court must ascertain if there are any legislated exemptions or defences that may apply to this particular case. Ontario Regulation 366/09 is the prescribed regulation that identifies potential exemptions. This regulation did not provide the court any assistance with the issues before the court. It should be noted that this

section is fairly new and there is no appellant case law the court could rely on for

interpretation. The wording of the

section indicates to me this offence is an absolute liability offence and thus the prosecutor is only required to prove, beyond a reasonable doubt, that the defendant committed the offence of driving with a hand held device. The court is satisfied with the evidence of the identity of the defendant, the date and time of the offence, the location/jurisdiction of the offence. The only issue before the court to consider is whether or not a dead battery in a cell phone in the defendant’s hand constitutes the offence as charged.

The court’s

interpretation of

section 78.1(1) of the Highway Traffic Act is as follows: The

section reads “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.” In the mind of the court, this constitutes two separate offences. One to hold a hand-held communication device, and two to use a hand-held communication device.

The legislation also included “other prescribed devices that are capable of receiving or transmitting telephone communications, electronic data, mail or text messages to allow for future devices. The intention of the legislation is to prevent distraction to drivers while trying to operate their motor vehicles on the highway. That is why, in my view the legislation included holding such devices. In the case before the court, the defendant admits having the LG flip phone in his hand and putting it up to his ear because he was having some difficulty connecting the phone with the blue tooth hands free device.

In the court’s mind, the act of doing such is just as distracting as making a call or receiving a call. A prudent driver would have either ensured the blue tooth hands free device was connected and properly working before he set out on his travels, or pulled the vehicle over once he knew he was having some difficulty with the connection of the devices. I am rejecting the defence that because the battery wasn’t working and the phone was dead that in itself would render the offence not committed. For the reasons indicated above, I believe the legislation is clear.

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. The defendant is guilty by virtue of holding the device in his hand. In coming to this decision, I have considered R. vs. WD. However, the two versions provided to the court, one by the officer and one by the defendant were actually quite similar.

Based on the totality of the evidence before the court, the court is satisfied, beyond a reasonable doubt that the prosecutor has proven all the elements of the offence beyond a reasonable doubt and the defendant is found guilty. A conviction will be registered. H.W. Charles W. Anderson Justice of the Peace Hamilton