R. v. Davis, 2018 ONCJ 319

Ontario Court of Justice CITATION: R. v. Davis, 2018 ONCJ 319 DATE: April 17, 2018 HER MAJESTY THE QUEEN v Sandra Davis Ontario Court of Justice Toronto, Ontario O. Shaw for the Prosecution P. Periti Agent for the Defendant Before: J. Opalinski J.P. Heard: August 9, 2017 Delivered: April 17, 2018 INTRODUCTION: 1 . The defendant, Sandra Davis, (hereinafter referred to as the defendant) is charged on the 14 th day of December, 2016 at 5:14 pm., northbound Jane Street at Finch Avenue West, 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 entered a plea of not guilty on August 9, 2017. The court heard evidence from both Toronto Police Officer Saltmarsh and the defendant. 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. There is no issue with regard to the time, place, location or date of the offence. The only point at issue is whether or not what the defendant was holding when the officer observed her travelling northbound on Jane Street and stopped at the intersection to make a left turn to go westbound on Finch Avenue West, was a black cell phone and not a black pack of Dentyne gum, which was emitting light as a result of the lights of oncoming traffic.

The officer observed her to still be holding the black cell phone in her hand while attempting to make the turn. He identified this cell phone to be a Samsung device which the defendant upon being stopped placed into her purse. However, this cell phone was the same one that was illuminated and held by the defendant when she was first observed by the officer. While he admitted in cross-examination that traffic may have been heavy, he never lost site of the defendant, had a clear view of her from his location and that it was a Samsung cell phone that he observed her to be holding.

As such, the elements of the offence have been made out and the court should render a conviction. ARGUMENT OF AGENT FOR DEFENDANT : 6 . The agent for the defendant has made an argument that the defendant has testified that what she had in her hand at the time when the officer observed her was not a black cell phone but a black pack of Dentyne gum that was able to be illuminated when light was cast upon it. After stopping the defendant she gave her cell phone which had been in her purse all the time to the officer who did not bother to look through the phone to see if there had been any calls or texts made.

Furthermore, there were gaps in the recollection of the officer’s evidence when tested in cross examination and when applying the test set out in WD the court should dismiss the charge against the defendant as she was not operating her motor vehicle when holding a wireless hand held communication device in contravention of s. 78.1(1) of the Highway Traffic Act , supra. As such the prosecution has not established its case beyond a reasonable doubt. EVIDENCE FOR THE PROSECUTION: 7 . The court heard evidence from Toronto Police Officer Saltmarsh. 8 . The evidence of Officer Saltmarsh may be summarized as follows: (

a) On December 14th, 2016 at approximately 5:14 pm, Officer Saltmarsh was exiting from the north entrance of a mall located at the corner of Jane Street and Finch Avenue West, which exits onto Jane Street just south of Finch Avenue West. He was facing westbound and could see traffic travelling northbound on Jane Street. (

b) He observed the defendant who had long blonde hair driving a four door grey 2004 Buick motor vehicle to be travelling northbound on Jane Street in the passing lane, being lane one of traffic. She was stopped in traffic approximately 15 feet away, behind other vehicles. There was no tint on her vehicle and she was looking down toward the steering wheel and her face was illuminated. While the officer indicated in cross examination that the traffic was heavy, this traffic did not obstruct his view of the defendant’s vehicle. (

c) She passed the officer’s location and he observed her to be holding a black smartphone in her right hand, while also using that hand to turn the wheel. The screen was extremely bright and was illuminating her face. The defendant then moved into the left hand turn lane at approximately 10 kilometres an hour. In spite of the traffic being heavy, the officer was not able to recall exactly how he was able to enter Jane Street, however he indicate that he did enter Jane Street and pulled in behind the defendant’s vehicle. The light was a stale red light and vehicles were stopped. (

d) The officer exited his vehicle and observed the defendant putting the cell phone into her purse which was located on the passenger’s front seat. She was advised to pull over and did so by turning right from the left turn lane of northbound Jane Street to stop in the curb lane of Finch Avenue West and was facing eastbound on Finch Avenue West. (

e) After stopping the defendant’s vehicle on Finch Avenue West, the officer requested to see the cell phone which was rectangular in shape and he identified to be a Samsung black cell phone. The officer did not attempt to examine the contents of the phone, but confirmed that it had its power on, was illuminated and had a full signal. EVIDENCE FOR THE DEFENCE: 9 . The defendant’s evidence may be summarized as follows: (

a) She was travelling northbound on Jane Street having left work and was approaching Finch Avenue West. The time was

approximately 5:15 pm and traffic was very heavy, bumper to bumper. She was aware that cars and pedestrians on a daily basis try todart out of everywhere at this intersection. However, she did observe the officer ahead of her. (

b) The defendant indicates that what she had in her hand was a pack of gum being Dentyne Black which is black and white on thecover. This gum package can be illuminated from any lights coming across and around her including the light illuminated by the dash asits black and white underside is fluorescent when light hit it. The intersection was very bright to begin with. The Dentyne gum pack washalf the size of her cell phone. She subsequently ended up putting the gum back into her purse. (

c) When stopped for the light she had nothing better to do but to stretch her neck while holding the pack of gum. (

d) By the time the officer came to her window the first time, her hands were on the steering wheel. Her cell phone was in her purseand she confirmed that the cell phone she owns is a Samsung, which is the same phone she had on the day she was stopped by the officeras she owns today. (

e) When the officer requested her phone she obliged, taking it out of her purse and handing it to him. The officer then proceeded toturn the phone on. THE LAW: 10. The case law as enunciated by the Court of Appeal in R. v. Kazemi 2013 ONCA 585 , 117 O.R. (3d) 300 is clear and is notat issue. There is a complete prohibition in holding a cell phone in one’s hand while driving. 11. What the court is required to consider in this case is the applicability of the test set out in R. v. W.(D) (SCC),[1991] 1 S.C.R. 742 with regard to the credibility of the evidence heard.

The Supreme Court of Canada indicated that in consideringcredibility a jury or trial judge as the case may be should look at the issue along these lines: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

The burden of proving beyond a reasonable doubt the guilt of the defendant, always rests with the crown and is ‘fundamental in oursystem of criminal law’. (at para 28) ANALYSIS: 12. In order for this court to render a finding of guilt, the court must find that all the elements of the offence of operate motor vehiclewhile holding a handheld wireless communication device contrary to

section 78.1(1) of the Highway Traffic Act, supra, have been madeout beyond a reasonable doubt, by the prosecution. The defendant must be operating a motor vehicle while holding a handheld wirelesscommunication device. 13. The evidence of the officer and the defendant are similar with respect to the place of the location, being Jane Street at Finch AvenueWest; the time and date of the offence; that the traffic was heavy and that after the officer stopped the defendant he asked to see hercellphone.

14 . Where the evidence of the two witnesses differs is that the officer indicated that while stopped in the north exit of the mall located at Jane Street and Finch Avenue West, he observed the defendant who was travelling in a motor vehicle approximately 15 feet from the officer’s location, pass him holding a black cell phone. Upon stopping the defendant and asking to see the cell phone which was in her purse on the front passenger’s seat, he was able to identify this phone to be a Samsung black cell phone, which was the same cell phone he had seen the defendant holding while driving her motor vehicle.

She had it in her right hand while also operating the steering wheel. 15 . What the officer was also able to observe was that the defendant’s head was down and the cell phone was emitting a light that lit up the defendant’s face. 16 . The defendant has indicated that what she had in her hand was a pack of Dentyne gum that was black and white and fluorescent which allowed the pack of gum to be illuminated not only by the lights emitted by oncoming motor vehicles but also the light from her dashboard.

The defendant acknowledged that the pack of gum was half the size of her cell phone and that her cell phone was in her purse all the time. 17 . The court is being asked to accept that the defendant did not have in her hand a cell phone that was illuminated but rather a pack of fluorescent Dentyne gum which was capable of being illuminated and that this is what the officer saw and not the cell phone. 18 .

It has been suggested to the court that the officer’s recollection is not that clear with regard to how busy traffic was on Jane Street and how he managed to get into the busy roadway behind the defendant’s vehicle so as to stop that vehicle and then have that vehicle pull over to the right into the curb lane of Finch Avenue West. He has not been clear about specifics. This assertion is made so as to create a doubt in the mind of the court with regard to the totality of the officer’s evidence. 19 .

However, the officer’s evidence as tested through cross examination and re-examination remains the same in that he had a clear view of the defendant’s vehicle, her driving with a black cell phone in her right hand that was illuminated and that this was the same cell phone that he saw in the defendant’s purse when he stopped the defendant’s vehicle and approached her. It was a cell phone and not a pack of gum. 20 .

For the court to accept the evidence of the defendant, the court would have to find that a pack of gum which is half the size of a cell phone and which can easily be covered by the defendant’s hand and consequently not be plainly or easily visible to any observer is further capable of being illuminated to such a degree that it could illuminate the defendant’s face. 21 . In applying the principles set out in R. v. W. D., supra, specifically point three in R. v. W.

D., supra, the court accepts that what the officer saw in the hand of the defendant was a black cell phone that he later identified to be a Samsung cell phone and not a pack of Dentyne gum. There was enough lighting for the officer to see through the defendant’s windshield and indeed it was the light emitted from the cellphone that illuminated the defendant’s face. The defendant was operating her motor vehicle while holding this device, being a black cell phone. DISPOSITION: 22 .

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 December 14, 2016. The court finds the defendant guilty of contravening

section 78.1(1) of the Highway Traffic Act , supra . Dated the 17 th day of April, 2018, at the City of Toronto “J. Opalinski” Joanna Opalinski J.P.