R. v. Ekladious, 2020 ONCJ 685

ONTARIO COURT OF JUSTICE CITATION: R. v. Ekladious , 2020 ONCJ 685 DATE: March 20, 2020 COURT FILE No.: Brampton PON#0018540F BETWEEN: HER MAJESTY THE QUEEN — AND — MAURICE EKLADIOUS Before Justice Hafeez S. Amarshi Heard on January 17, 2020 Judgment: March 20, 2020 On appeal from a conviction by Justice of the Peace H. Weiss on June 5, 2019 at Mississauga, Ontario. H. Bourgeios…..………………………………………Provincial Prosecutor for Mississauga T. Abdu………………………..………………….Agent for the Appellant Maurice Ekladious IN THE MATTER OF an appeal under clause 116(2) (

a) of the Provincial Offences Act , R.S.O. 1990, c. P.33 , as amended; Between Her Majesty the Queen, Respondent on Appeal, and Maurice Ekladious, Appellant on Appeal. H.S. Amarshi J.: A. Introduction 1 . The appellant appeals his conviction of the offence of driving while holding or using a hand-held wireless communication device contrary to s. 78.1(1) of the Highway Traffic Act ( HTA ). [1] 2 . The appellant submits that the presiding Justice of the Peace made errors of law and fact.

3 . The primary issue is whether the appellant, who was operating a motorcycle and stopped at a red light when he was observed holding a cell phone, was “driving” within the meaning of s. 78.1 of the HTA . 4 . Further, the appellant argues that there was insufficient evidence to support a conviction in this case because the issuing officer conceded the device in question could have been a GPS unit and therefore s. 78.1 cannot apply in the circumstances. 5 . For the following reasons this appeal is dismissed. B.

Summary of the Facts 6 . On October 9, 2018, Officer Drew Donohue, a member of the Peel Regional Police Service, observed a motorcycle stopped in the left-hand turn lane facing northbound at a red light at Cawthra Road near Eastgate Parkway in the City of Mississauga. 7 . The officer testified that Mr. Ekladious was sitting upright on his motorcycle holding what appeared to the officer to be a black cell phone in both hands. Further, he observed the appellant to be using both of his thumbs moving in a typing motion. 8 . Cst. Donohue motioned for Mr. Ekladious to pull over.

After a brief investigation the officer issued a provincial offence notice for driving a motor vehicle while using a handheld communication device contrary to s. 78.1 of the HTA . The total fine amount is $490. 9 . In cross-examination, Officer Donohue conceded that the device could have been a GPS, although he noted he did not see a mounting device for the unit. He testified that while investigating Mr. Ekladious, the appellant stated he was using a “GPS function.” 10 . On June 5 th , 2019, Mr. Ekladious was convicted by Her Worship H. Weis. Cst. Donohue was the only witness.

Her Worship accepted the officer’s evidence that the appellant was holding a cell phone and concluded that the device in question had a GPS function as opposed to a stand-alone GPS device. 11 . Her Worship further concluded that the appellant while stopped at the red light was “driving” as contemplated by s. 78.1 of the HTA . 12 . Mr. Ekladious appeals his conviction. C. Relevant Statutory Provisions 13 .

Section 78.1 of the HTA : [2]

(1) 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. Definition

Section 1 of the HTA : (1) “motor vehicle” includes an automobile, a motorcycle, a motor assisted bicycle unless otherwise indicated in this Act, and any other vehicle propelled or driven otherwise than by muscular power, but does not include a street car or other motor vehicle running only upon rails, a power-assisted bicycle, a motorized snow vehicle, a traction engine, a farm tractor, a self-propelled implement of husbandry or a road-building machine; (“véhicule automobile”) D. Position of the Parties

14 . Ms. Abdu submits that s. 78.1 cannot apply in these circumstances because the appellant was not “driving,” instead he was stopped at a red light and the motorcycle immobilized. She points to the very different ways in which a motorcycle is operated when compared to an automobile. Specifically, in order to put a motorcycle in motion from a standing position, a driver must grip the handlebars and have both feet on the footrest. Without these actions, a motorcycle cannot be operated. This is in contrast with an automobile, which may be operated even when a driver’s hands are occupied by a cell phone.

Therefore, there is a continuous and meaningful risk to road safety even when an automobile is not in motion. A risk not presented in the case of a motorcycle. 15 . The respondent urges I reject this definition of “driving” as being too narrow and that the actions of the appellant, at the red light, falls squarely within the type of conduct the provincial legislature was seeking to curb when enacting this provision. E. Analysis (

i) The broad application of s. 78.1 16 . The Ontario Court of Appeal’s decision in York (Regional Municipality) v. Tassone , 2007 ONCA 215 , is determinative of this legal issue. [3] In Tassone , the respondent was charged with failing to wear a seat belt contrary to s. 106(3) of the HTA which read at the time of the offence, "every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly in a properly adjusted and securely fastened manner." [4] 17 .

At trial, the respondent testified that when he got to a red light, he put his car in park to check for his wallet and unfastened his seat belt for a short duration. 18 .

The Court of Appeal found that a driver stopped at a red light with his or her motor vehicle placed in park mode is "driving on a highway." The court goes on to state at paragraph 7: In our view, s. 106(3) must be interpreted as requiring the driver to wear a seat belt continuously from the time he or she puts the vehicle in motion on the highway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets out of the vehicle. 19 .

Given the common language shared by s. 106(3) and s. 78.1 of the HTA , it reasonably follows that the use of a handheld communication device is prohibited for the duration of the operation of a motor vehicle, including the periods at stop lights. 20 . The distinction between a motorcycle and automobile, as suggested by the appellant, is not a meaningful one given this

interpretation. Indeed, the HTA draws no distinction, and defines “motor vehicle” as including an automobile and a motorcycle. 21 . Ms. Abdu in her submissions helpfully provided to this Court - The Official Report of the Debates (Hansard) from April 22, 2009. The Minister of Transportation said the following in support of the government’s introduction of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4 : Our eyes-on-the-road, hands-on-the-wheel legislation aims to stop the use of hand-held wireless communication devices such as cellphones while driving.

The goal is not to inconvenience people but to make our roads safer for them and for everyone else who shares our roads. For safety's sake, drivers should focus on one thing and one thing only: driving.

And further: Any activity that divides a driver’s attention from the task of driving should be avoided whenever possible. 22 . Even if I were to conclude that the holding in York (Regional Municipality) v. Tassone , is distinguishable or not applicable in this case - a position advocated by the appellant, I would arrive at the same conclusion. Clearly the legislative intent when enacting s. 78.1 was to enhance road safety and to protect drivers and pedestrians from the distractions of electronic devices.

These risks continue over the duration of travel and are not suddenly absent at red lights, regardless of the type of motor vehicle being operated. Any other reading would be inconsistent with the purpose and intent of this statutory provision. [5] 23 . I find that the presiding justice made no error in law in concluding the prohibition against holding or using a handheld communication device applies to motorcycle driver’s in a stopped position. (ii) Consideration of the GPS evidence 24 . The standard for appellate review of findings of fact is one of deference.

Findings of fact by a trial court may not be overturned absent a palpable and overriding error. [6] 25 . The appellant submits the Justice of the Peace did not adequately consider the evidence of Officer Donohue, which if accepted, would have given rise to a reasonable doubt. Specially, the officer conceded in cross-examination that the device at issue could have been a GPS. 26 . Firstly, I do not accept that a GPS device is not captured by s. 78.1 . A GPS functions by transmitting and receiving electronic data between the ground and orbiting satellites.

It enables a user to precisely identify their position and direction. The data that is received is d isplayed on the device’s electronic map. 27 . Secondly, Cst. Donohue testified that he observed the appellant to be making a typing motion on what he believed to be a cell phone, which he described as black and rectangular with a screen. At another point in his testimony, the officer described the motorcyclist as holding a black cell phone with both of his hands.

According to Officer Donohue, the appellant advised he was using a “GPS function.” The officer remarked there was no mounting on the motorcycle for a GPS device. 28 . Her Worship considered this testimony, specifically referring to the GPS evidence in her reasons and rejecting that it was a stand- alone device. She accepted Cst. Donohue’s testimony that he had observed a cell phone in the hands of Mr. Ekladious and her decision is entitled to deference. 29 . This ground of appeal is rejected. 30 . I want to thank Ms. Abdu, agent for the appellant, and Ms.

Bourgeios, provincial prosecutor, for their thoughtful and comprehensive submissions. H.S. Amarshi J. [1] This appeal, which was heard on January 17, 2020, was scheduled to return on March 20, 2020 for a decision. In the interim all Provincial Offences Act ( POA ) matters at the Ontario Court of Justice in Brampton were suspended because of the Covid-19 pandemic. The hearing of POA appeal matters is tentatively scheduled to resume in July 2021. Given the tentative nature of this date and the unforeseen and lengthy delay in this case, the parties were provided with this written decision via e-mail.

The appellant need not reattend, and this matter at the Ontario Court of Justice is deemed to have been concluded. [2] Highway Traffic Act , R.S.O. 1990, c. H.8 [3] A conviction at trial was overturned by a provincial offences appeal judge who held that once the vehicle was in park the respondent was no longer driving on a highway. This decision was appealed by York Region.

[4] The appeal in York (Regional Municipality) v. Tassone , 2007 ONCA 215 , involved the

interpretation of the s. 106(3) of the HTA . This

section was subsequently amended and currently reads: ( 2) Every person who drives on a highway a motor vehicle in which a seat belt assembly is provided for the driver shall wear the complete seat belt assembly as required by subsection (5). Notwithstanding the amendment, the relevant language remains the same. [5] In Tassone , the court noted the following principles of statutory

interpretation at paragraph 7: In our view, the provincial offences appeal judge erred in his

interpretation of s. 106(3). When interpreting the words "drives on a highway" in that section, it is important to take the broad purposive approach adopted by several recent decisions of the Supreme Court of Canada from Elmer A. Driedger, Construction of Statutes , 2nd ed. (Toronto: Butterworths, 1983) at p. 87: Today there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. [6] Housen v. Nikolaisen, 2002 SCC 33 , at para. 10 .