CITATION: Ontario (Ministry of Transportation) v. Balasubramaniam , 2017 ONCJ 643 DATE: September 27, 2017 IN THE MATTER OF the Highway Traffic Act, R.S.O 1990, c. H.8 Between Her Majesty The Queen In Right Of Ontario As Represented By The Ministry of Transportation prosecutor and Kirubakaran Balasubramaniam defendant Ontario Court of Justice Brampton, Ontario Quon J. P. Reasons for Judgment Trial held: May 23, 2017. Judgment released on: September 27, 2017. Charges: (1) s. 78.1 H.T.A. – “drive with hand-held communication device”

(2) s. 107(7) H.T.A. – “fail to surrender completed daily inspection report” Counsel: P. Moore, counsel for the Ministry of Transportation R. Burd, legal representative for the defendant, Kirubakaran Balasubramaniam Cases Considered or Referred To: Montréal (Ville de) c. Cardinal, [2013] J.Q. no 3089 (Cour municipale de Montréal (Québec)), per Mandeville, J.C.M. Montréal (Ville de) c. Njanda, [2015] J.Q. no 799 (Cour municipale de Montréal (Québec)), per Richmond J.C.M.M. Ontario (Ministry of Transportation) v. Don's Triple F Transport Inc., 2012 ONCA 536 , [2012] O.J.

No. 3754 (O.C.A.), perFeldman, Armstrong JJ.A. and Himel J. (ad hoc). R. v. Crowdis, [1985] S.J. No. 273 (Sask. Q.B.), per Walker J. R. v. Jacobs, [1955] B.C.J. No. 95 (B.C.C.A.), per Robertson, Bird, and Davey JJ.A. R. v. Kazemi (2013), 117 O.R. (3d) 300, 2013 ONCA 585 (O.C.A.), per Laskin, Goudge, and Watt JJ.A. R. v. MacDonagh, [1974] 1 All E.R. 257 (C.A.). R. v. McConnell, [2017] O.J. No. 2018 (O.C.J.), per West J. R. v. Petrovic, [2012] O.J. No. 4185 (O.C.J.), per Dechert J.P. R. v. Peuker, [2016] O.J. No. 7072 (O.C.J.), per Bonas J.P. R. v.

Pizzurro (2013), 117 O.R. (3d) 779, 2013 ONCA 584 (O.C.A.), per Laskin, Goudge, and Watt JJ.A. R. v. Russo, [2013] O.J. No. 3564 (O.C.J.), per Opalinski J.P. R. v. Ryan, [2007] N.J. No. 338 (N.L. Prov. Ct.), per Gorman J. R. v. Schull (2013), 44 M.V.R. (6th) 338 (B.C. Prov. Ct.), per Joseph-Tiwary J.

R. v. Srecko, [2016] O.J. No. 4329 (O.C.J.), per Kowarsky J.P. R. v. Steenson, [2015] O.J. No. 1717 (S.C.J.O.), per Durno J. R. v. Zack, [1999] O.J. No. 5747 (O.C.J.), per Duncan J. York (Regional Municipality) v. Tassone, 2007 ONCA 215 , [2007] O.J. No. 1109 (O.C.A.), per Sharpe, Simmons, and CronkJJ.A. Statutes, Regulations and Rules Cited: Commercial Motor Vehicle Inspections Regulation (Highway Traffic Act), O. Reg. 199/07, ss. 7(1), 18(1), and 18(3). Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009, c. 4, s. 2.

Display Screens and Hand-Held Devices Regulation (Highway Traffic Act), O. Reg. 366/09, ss. 6, 7, 8, 12, and 14. Highway Traffic Act, R.S.O. 1990, c. H.8, 1(1), 78(1), 78.1, 78.1(1), 78.1(3), 78.1(4), 78.1(5), 78.1(6), 106(2), 107, 107(6), 107(7),107(9), and 107(10). Highway Safety Code, L.R.Q. c. C-24.2, ss. 396 and 439.1. Proceedings Commenced By Certificate Of Offence (Provincial Offences Act), R.R.O. 1990, Reg. 950, s. 5,

Schedule 43. Provincial Offences Act, R.S.O. 1990, c. P.33, ss. 13(1), 13(1.1), 13(1.1)(a), 13(2), and 47(3).

Exhibits entered: Exhibit "1" - certified copy of Ministry of Transportation document dated September 20, 2016, in respect to KirubakaranBalasubramaniam’s driver’s licence information, which indicates that he has a Class A driver’s licence with Z = Air Brake endorsement.(2 pages) Exhibit "2" - certified copy of Ministry of Transportation document dated September 20, 2016, in respect to licence plate numberPTW816 issued by the province of New Brunswick, which was issued for a 2016 commercial white-coloured Volvo truck indicated as aConventional Tractor with a Registered Gross Weight of 41,500 kg and registered to the lessee AARON LOGISTICS INC. of TorontoOntario and the owner VFS Canada Inc. of Aurora Ontario. (2 pages) 1.

INTRODUCTION

[ 1 ] To ensure that public roadways in Ontario are safe for all who use or travel on them, motorists are required to follow the statutory rules that are set out in the Ontario Highway Traffic Act and its accompanying regulations. There is, unfortunately, one modern-day activity that has led to a significant number of accidents occurring on public roadways, which have been brought about by distracted drivers. These distracted drivers have become increasingly involved in motor vehicle collisions that have resulted in major property damage, fatalities, and significant injuries.

This increase in distracted driving has been caused by the widespread use of hand- held mobile communication devices among society in general, but particularly, by motorists holding and using cellphones while they are driving [1] . Consequently, new statutory rules have been enacted by the Ontario Legislature to combat this problem created by the pervasive use of hand-held communication devices by motorists and to prevent accidents caused by this distracted-driving phenomenon.

Motorists in Ontario are now barred from holding or using hand-held communication devices while they are engaged in driving a motor vehicle on a highway, except under emergency-type situations. [ 2 ] These new statutory rules that were implemented to counter distracted driving in Ontario had been enacted under s. 2 of the Countering Distracted Driving and Promoting Green Transportation Act, 2009 , S.O. 2009, c. 4, and came into force on October 26, 2009. They are set out in ss. 78(1) and 78.1 of the Highway Traffic Act , R.S.O. 1990, c. H.8 (“ HTA ”) and the Display Screens and Hand-Held Devices Regulation , O.

Reg. 366/09 .

But more importantly, the specific measures provided under s. 78.1 , which ban motorists from using or holding hand-held communication or electronic entertainment devices, as well as under s. 78(1) which prohibit display screens of a television, computer, or other device in a vehicle being visible to the driver, while they are driving on a highway are intended to protect the public from the inevitable harm brought about by distracted drivers in those particular situations. [ 3 ] Therefore, under s. 78.1(1) of the HTA a motorist, for instance, would be prohibited from holding and typing text messages or from sending or reading e-mails on a cellphone, while driving or operating a motor vehicle on a highway.

This prohibition against holding or using hand-held communication devices while driving a motor vehicle on a highway would apply unless, for example, the device is being used in a hands-free mode or used in conjunction with some type of hand-free device, or the driver is calling 9-1-1, or the motor vehicle is off the roadway and not impeding traffic, or the motor vehicle is lawfully parked.

On the other hand, emergency services, such as police, fire and ambulance, would be exempted from this particular prohibition. [ 4 ] And, as equally important for highway safety, another set of statutory rules have also been enacted under the HTA to regulate the trucking industry and to ensure that large commercial trucks are driven and operated safely on public roadways.

Included in these particular statutory rules is a requirement that drivers or operators of commercial motor vehicles conduct a daily pre-trip inspection of their trucks before they are driven onto a highway and to record the details and necessary information for these pre-trip inspections of their commercial motor vehicles in a daily report or log, and to submit such a report or log to enforcement officials upon demand, when their trucks are stopped on a highway for a safety inspection or compliance check. [ 5 ] Now, in this particular HTA prosecution, the defendant, Kirubakaran Balasubramaniam, who had been driving a 2016 white- coloured Volvo commercial transport truck, without pulling a trailer (commonly referred to as “bobtailing”), had been charged on August 16, 2016, at 2:59 p.m., with committing two HTA offences in respect to the commercial transport truck he had been operating while proceeding southbound on Dixie Road in the City of Brampton.

They are for (1) “drive with hand-held communication device”, contrary to s. 78.1(1) and for (2) “fail to surrender completed daily inspection report” for that commercial truck, contrary to s. 107(7). [ 6 ] The defendant had been observed on that date by Officer Eustace supposedly holding and typing on a hand-held communication device, described by Officer Eustace as a “phone”, while the white-coloured Volvo transport truck the defendant had been operating had been stopped for a red traffic light at Midway Boulevard, southbound on Dixie Road in the City of Brampton.

In addition, after Officer Eustace had stopped the 2016 white-coloured Volvo commercial transport truck to investigate the driver for holding a hand-held communication device, Officer Eustace had asked the defendant to provide him with the daily pre-trip inspection report for that commercial transport truck. The defendant had been unable to do so and did not initially mention anything to Officer Eustace about an electronic log book that had been mounted on the dashboard in the cab of the truck until about 15 to 20 minutes later.

When Officer Eustace was eventually informed by the defendant about the existence of the electronic log book in the cab of the defendant’s truck, the defendant had also given Officer Eustace full and complete access to that electronic log book. Officer Eustace then proceeded to scroll and navigate through the menus and pages in the electronic log book, which is a device that can be used to record the pre-trip inspection report.

However, in his examination of the electronic log book, Officer Eustace said he had been unable to find a completed daily pre- trip inspection report with the statutorily-required information.

Furthermore, Officer Eustace had testified at trial that he did not find, in particular, any information in the electronic log book about the odometer reading for the commercial transport truck, nor did he find any information about where and when the pre-trip inspection of the commercial motor vehicle had been conducted, nor did he find a statement in the electronic log book that had been signed by the defendant indicating that the pre-trip inspection had actually been done for that day. [ 7 ] In his defence to the charge of “drive with hand-held communication device”, the defendant contends that he did not contravene s. 78.1(1) of the HTA , since he had been stopped at a red traffic light, which he contends would not constitute “driving” on a highway for the purposes of s. 78.1(1) .

To support his argument, the defendant relies on West J.’s ruling in R. v. McConnell , [2017] O.J. No. 2018 (O.C.J.) , in which it had been held that a motorist, who had picked up his cellphone after his motor vehicle had been put into the “park mode” and after it had been stopped at a red light, was not driving on a highway. In addition, the defendant contends that Officer Eustace did not give a description of the device that had been supposedly held and typed on by the defendant, and as there is evidence

that there were three electronic devices in the cab of the truck which were not all hand-held communication devices, then the defendantargues the prosecution has not proven beyond a reasonable doubt that the defendant had been actually holding a hand-heldcommunication device. [8] And, for the second HTA charge of “fail to surrender completed daily inspection report” under s. 107(7), the defendant submitsthat he had provided Officer Eustace full and complete access to the electronic log book that had been mounted in the cab of thecommercial truck, which is where an operator or driver can record the daily pre-trip inspection report in electronic form.

As such, thedefendant contends that he did not “fail to surrender” the daily inspection report to Officer Eustace. [9] Ergo, the key issues that need to be resolved in this trial include whether the defendant had been “driving on a highway” for thepurposes of s. 78.1(1) of the HTA when the commercial truck that the defendant had been operating had been stopped on a highway for ared traffic light, while allegedly using and holding a hand-held communication device; whether the prosecution has established that thedefendant was indeed holding a hand-held communication device beyond a reasonable doubt, since Officer Eustace did not provide adescription of the device allegedly being held by the defendant; and whether the defendant had contravened s. 107(7) of the HTA for“failing to surrender completed daily inspection report”, when the defendant had in fact allowed the MTO enforcement officer full andcomplete access to the electronic log book mounted in the cab of the commercial transport truck. [10] In regards to the first question, considering that no evidence had been adduced that the defendant’s commercial truck had beenput lawfully parked or off the roadway, or that the defendant had put the truck into the “park mode” while stopped for the red trafficlight; and in light of the credible evidence of Officer Eustace that he had observed the driver of the commercial transport truck holding,gazing at, and typing on a hand-held communication device described as a “phone” while on Dixie Road, after it had come to a stop forthe red traffic light, then R. v.

McConnell is distinguishable from the case at bar.

The McConnell case is not applicable because themotorist in McConnell had only picked up his cellphone after he had put his motor vehicle into the “park mode” after it had come to astop for a red light, unlike the present case where there is no evidence that the defendant had put his transport truck into the “park mode”after it had come to a stop for the red traffic light before he had picked up the hand-held communication device. [11] On the other hand, Officer Eustace had observed the commercial truck that was being operated by the defendant still being inmotion on Dixie Road just before it had come to a stop for the red traffic light.

But most importantly, for the particular circumstancewhere the defendant’s commercial transport truck had been stopped at a red traffic light, but not lawfully parked or off the roadway, norhad the truck been put into the “park mode” by the defendant, then being stopped for a red light in these particular circumstances wouldnevertheless constitute the act of “driving on a highway” within the meaning of s. 78.1(1) of the HTA, when that provision is properlyinterpreted broadly in the appropriate context and in accordance with the purpose of the HTA.

See especially the Court of Appeal’sreasoning in York (Regional Municipality) v. Tassone, 2007 ONCA 215 , [2007] O.J.

No. 1109 (O.C.A.) in which it had beenheld that being stopped for a red light was still the act of driving on a highway for the purposes of the requirement to wear a seatbeltunder s. 106(2) of the HTA, even if the vehicle is put into the park mode while it is stopped for the red light. [12] For the second question, because there was a hand-held communication device that had been observed by Officer Eustace in thecentre console and which had been within reach of the defendant; and because the nature of the other two electronic devices, which werethe electronic log book that had been mounted on the dashboard in the cab as legally required and the hands-free device which was notobserved by Officer Eustace being worn on the defendant’s clothing or worn on the defendant’s head or ear as legally required, inconjunction with the lack of evidence that these two other devices could be used as hand-held communication devices that could be heldand typed on; and in light of Officer Eustace’s observation of the defendant holding a device in his left hand and typing on it with hisright hand and then gazing at the device, which are actions that would normally be associated with someone holding and using a hand-held communication device, then it is reasonable to infer that the defendant had been holding and using the hand-held communicationdevice, referred to as a “phone”, that had been observed by Officer Eustace in the centre console.

Ergo, as there is no contrary evidencethat the device that the defendant was holding and typing on was not a hand-held communication device, then the prosecution has provenbeyond a reasonable doubt that the defendant had been holding a hand-held communication device while operating the commercialtransport truck. [13] Consequently, as Officer Eustace’s testimony has not been undermined during cross-examination nor contradicted, then based onOfficer Eustace’s credible testimony the prosecution has proven beyond a reasonable doubt that the defendant has committed the actusreus of the offence for the charge of “drive with hand-held communication device” under s. 78.1(1) of the HTA. [14] As for the third question, the legal obligation on the driver of a commercial motor vehicle to surrender a completed daily pre-tripinspection report upon demand to an enforcement officer necessitates that the report be completed with the required statutoryinformation that is listed in s. 7(1) of the Commercial Motor Vehicle Inspections Regulation (HTA), O.

Reg. 199/07. In other words, thedefendant did not fulfill the requirements under s. 107(7) of the HTA by simply providing Officer Eustace full and complete access to theelectronic log book mounted in the cab of the commercial truck. Subsection 107(7) obliges the defendant to surrender upon demand acompleted pre-trip inspection report with the required statutory information either in paper or electronic from. And, as there is noevidence that a pre-trip inspection report with the statutorily-required information either in documentary or electronic form had been

provided to Officer Eustace by the defendant upon Officer Eustace’s demand for such a pre-trip inspection report, then the prosecution has proven that the defendant has committed the actus reus of the offence of “fail to surrender completed daily inspection report” beyond a reasonable doubt. [ 15 ] Furthermore, as the defence of due diligence has not been established by the defendant on a balance of probabilities for either of the HTA charges, in order for the defendant to avoid being convicted of committing either of the two offences, then the prosecution has proven beyond a reasonable doubt that the defendant is guilty of committing the offence of “drive with hand-held communication device”, contrary to s. 78.1(1) and the offence of “fail to surrender completed daily inspection report”, contrary to s. 107(7) . [ 16 ] In addition, the trial of these two HTA charges had been held on May 23, 2017.

After final submissions were made by the prosecution and the defendant, judgment was reserved and adjourned for the judgment to be rendered. These, therefore, are the written reasons for judgment being released as of September 27, 2017: 2.

BACKGROUND [ 17 ] Only one witness testified in the trial, which had been MTO Officer Eustace, the enforcement official from the Ministry of Transportation, who had charged the defendant with committing the two HTA offences. [ 18 ] In his testimony, MTO Officer Eustace said that on August 16, 2016, at 2:59 p.m., in the City of Mississauga, he had been operating an MTO marked cruiser, which is a Chevrolet Lumina passenger motor vehicle that is of standard height. He also said he had been travelling southbound on Dixie Road in lane #1, which he said is the far left lane.

He then said that he had to stop for a red traffic light at Midway Boulevard. While stopped at the red light, MTO Officer Eustace said he had observed a commercial transport truck without a trailer “in motion” southbound on Dixie Road with one male occupant, the driver. He said that the commercial transport truck had pulled into lane #3, which had been two lanes to his right, and then come to a stop for the same red traffic light that he had been stopped for.

Officer Eustace also said that there had been no motor vehicle that had been between his own cruiser and the commercial truck in lane #3 that would have been large enough to obstruct or block his view of the driver in the cab of the commercial transport truck situated in lane #3. [ 19 ] As it relates to the two charges, Officer Eustace testified he had observed the male driver’s left hand come above the window frame holding a “communication device” in that left hand, which was slightly above the height of the lowered window.

In addition, Officer Eustace said that he had also observed the driver typing into the device with his right hand and that the driver’s eyes were looking down toward the device. Officer Eustace then said that the driver stopped typing, looked at the device, and then began typing some more on the device with his right hand. Then, Officer Eustace said that he had observed the driver of the commercial truck look over to his left and at Officer Eustace.

Officer Eustace then said he had observed the driver’s eye brows rise up with what appeared to be a look of shock on the driver’s face, which was then followed with the driver’s hands coming up to his head. Officer Eustace also said that he then observed the “phone” and the driver’s hand go below the window frame. Officer Eustace then said the traffic light turned green, at which point he then pulled the commercial truck over, just south of Midway Boulevard. [ 20 ] After the commercial truck had pulled over, Officer Eustace said he then approached the driver of that truck and demanded documents from the driver.

Officer Eustace then said that the driver produced to Officer Eustace a photo driver’s licence in the name of Kirubakaran Balasubramaniam.

Officer Eustace also said that he had been satisfied that the driver was the person that had been named on the driver’s licence. [ 21 ] Furthermore, Officer Eustace said that while the transport truck had been stopped for the red light, he had made his observations of the driver holding and using a “hand-held communication device” through the passenger-side window of his MTO marked cruiser and up into the cab of the truck. [ 22 ] In addition, Officer Eustace admitted in cross-examination that he did not have in his notes a description of the device that the driver had been holding, a description of the hands-free device, nor a description of the electronic log book device that were seen by Officer Eustace in the cab of the commercial truck.

However, enforcement officers are not required to record everything they did or observe in their notebooks to comply with the Crown’s disclosure obligation: R. v. Zack , [1999] O.J. No. 5747 (O.C.J.) . Moreover, evidence that a specific event or observation had not been recorded by an enforcement officer in their notes does not mean that the event or observation did not occur. However, the significance of an omission of an event or observation in an enforcement officer’s notebook must be determined by the trier of fact on a case by case basis: R. v. Steenson , [2015] O.J. No. 1717 (S.C.J.O.) .

[ 23 ] On the other hand, Officer Eustace did testify that he had observed a hand-held communication device in the centre console and mid-area of the cab, which had been within the reach of the driver. Officer Eustace also said there had been a hands-free device available in the cab of the commercial transport truck, but that it was not being used by the driver, as he does not recall seeing the driver wear the hands-free device. In addition, Officer Eustace said that he does not recall the type of hands-free device that it had been.

However, Officer Eustace did say that there had been a hands-free device connected by Bluetooth to the truck, as he said he had actually heard a phone call being broadcast through the truck’s speakers when he had been talking to the driver. [ 24 ] Furthermore, Officer Eustace said that he had asked the driver for the trip inspection or circle check document, but the driver did not surrender to Officer Eustace any pre-trip inspection report in paper form.

Moreover, at that time Officer Eustace said that there had been no discussion between himself and the driver about the driver having the required report in electronic form.

Officer Eustace also said that he had then left the presence of the driver and that when Officer Eustace had returned 15 to 20 minutes later, at approximately 3:30 p.m., Officer Eustace said there had still been no device nor any mechanical certificate for road testing provided to him that would have exempted the requirement for the defendant to give or provide the pre-trip inspection report to Officer Eustace. [ 25 ] It was, however, upon his return that Officer Eustace said he and the driver, Kirubakaran Balasubramaniam, then had a discussion about the existence of an electronic inspection report.

Officer Eustace then said that the driver had allowed him to have full and complete access to the dash-mounted electronic log book in the cab of the truck, which is an electronic device capable of inputting and recording inspection reports. However, Officer Eustace said that the information for the pre-trip inspection report had not been contained in one general area of the electronic log book and that the inspection report had been missing information.

Moreover, Officer Eustace said he had searched for the inspection report by scrolling and navigating through the menus and electronic pages of the electronic log book while in the presence of the defendant, to see if the information had been actually missing and not just hidden in the menus. In addition, Officer Eustace admitted that unlike other officers who are uncomfortable with using the electronic log book, he had not been uncomfortable with this new technology. In fact, Officer Eustace said that he is one of the trainers on how to use the electronic log book.

In addition, Officer Eustace said that even though he had been able to find some of the required information for the pre-trip inspection, he did not find all of the required information in the electronic log book. Officer Eustace also said that the required information is listed in Regulation 199/07 and that the electronic information has to comply with the data requirements of the Regulation besides just the signature requirement.

Furthermore, Officer Eustace said he did find some of the required information such as name and vehicle identification, but did not find or obtain the necessary information for the mileage of the commercial motor vehicle, the inspection location, or the statement that the motor vehicle had been inspected according to the regulations, which are standard items required for of a pre-trip inspection report.

Moreover, Officer Eustace said that at one point or another, both of them had actually scrolled through the menus of the electronic log book, but that the driver had been unable to turn up any menu or screen on the electronic log book which had contained the required information for the pre-trip inspection report. 3. THE CHARGES [ 26 ] The defendant has been charged under two

Part I Certificates of Offence (#8338526B and #8338527B) that were issued on August 16, 2016, for committing the following two offences: (1) #8338526B: Kirubakaran Balasubramaniam , of [residential address removed for privacy], Toronto, Ontario, On the day of 2016 – 08 –16 1459 P.M. At Dixie Road SB @ Midway Blvd City of Mississauga PEEL Did commit the offence of: Drive – Hand Held Communication Device Contrary to Highway Traffic Act , Sect. 78.1(1)

(2) #8338527B: Kirubakaran Balasubramaniam , of [residential address removed for privacy], Toronto, Ontario, On the day of 2016 – 08 –16 1459 P.M. At Dixie Road SB @ Midway Blvd City of Mississauga PEEL Did commit the offence of: Fail To Surrender Completed Daily Inspection Report Contrary to Highway Traffic Act , Sect. 107(7) 4. ISSUES [ 27 ] In order to determine if the defendant has committed the two HTA offences beyond a reasonable doubt, the following issues need to be resolved in this trial: (

A) For the “drive with hand-held communication device” charge:

(1) Has the prosecution proven that the defendant had committed the actus reus of the “drive with hand-held communication device” offence beyond a reasonable doubt?

(2) Has the prosecution proven that the defendant was holding or using a hand-held communication device since the MTO enforcement officer did not provide a description of the device that the defendant had been allegedly holding, especially considering that there is evidence that there were three electronic devices in the cab of the commercial truck at the time in question?

(3) Is being stopped at a red light on Dixie Road the act of “driving on a highway” within the meaning of s. 78.1(1) of the Highway Traffic Act ?

(4) If the prosecution has proven the actus reus of the offence for the charge of “drive with hand-held communication device” beyond a reasonable doubt, then has the defendant made out a due diligence defence on a balance of probabilities, so that the defendant would not be convicted of committing that offence? (

B) For the “fail to surrender completed daily inspection report” charge:

(5) Has the prosecution proven that the defendant had committed the actus reus of the “fail to surrender completed daily inspection report” offence beyond a reasonable doubt?

(6) Did the defendant fail to surrender the daily pre-trip inspection report within the meaning of s. 107(7) of the HTA when he had actually allowed MTO Officer Eustace full and complete access to the electronic log book device mounted on the dashboard in the cab

of the commercial transport truck?

(7) Does the short-form wording of an offence set out in the Certificate of Offence dictate what are the elements of the offence that are required to be proven by the prosecution?

(8) Was the statutorily-required information for a pre-trip inspection report contained or provided in the electronic logbook device?

(9) If the prosecution has proven the actus reus of the offence for the charge of “fail to surrender completed daily inspection report” beyond a reasonable doubt, then has the defendant made out a due diligence defence on a balance of probabilities, so that the defendant would not be convicted of committing that offence? 5. ANALYSIS AND DECISION (

A) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Is Guilty Of Committing The Offence Of “Drive With Hand-Held Communication Device”? [ 28 ] For a motorist to be guilty of committing the offence of “drive with hand-held communication device” under s. 78.1(1) of the HTA , the prosecution has to prove beyond a reasonable doubt that the motorist was either holding or using a hand-held communication device and that the motorist had been driving a motor vehicle on a highway within the meaning of the HTA while he had been doing the prohibited act. [ 29 ] However, the defendant argues that the prosecution has not met their burden in proving that the defendant had been actually holding a hand-held communication device or that he had been actually “driving on a highway” while he had been stopped for a red traffic light, and as such, contends that the prosecution has failed to prove he had contravened s. 78.1(1) of the HTA .

First of all, to support his argument that the prosecution has not proven he had been in the act of driving when supposedly holding a hand-held communication device, the defendant contends that R. v. McConnell , [2017] O.J. No. 2018 (O.C.J.) , governs the present case and supports his contention that it is not unlawful to hold or use a hand-held communication device while being in the driver’s seat of a motor vehicle that is stopped on a highway for a red traffic light.

Secondly, the defendant argues that the prosecution has failed to prove beyond a reasonable doubt that he had been holding or using a hand-held communication device, since Officer Eustace did not give a description of the actual device that the defendant had been supposedly holding, and because there is evidence that there were three electronic devices in the cab of the commercial transport truck which were not all hand-held communication devices.

As a result, the defendant submits there is reasonable doubt that the device that Officer Eustace had observed the defendant holding had been a hand- held communication device, as it could have been one of the devices that is not a mobile communication device. [ 30 ] Ergo, the key issues in determining whether the defendant has committed the offence of drive with a hand-held communication device are first whether the defendant had been “driving on a highway” within the meaning of s. 78.1(1) of the HTA , while the commercial transport truck he had been operating had been stopped for a red traffic light at the intersection of Dixie Road and Midway Boulevard in the City of Brampton.

And, second, whether the prosecution has proven beyond a reasonable doubt that the device, which the defendant had been observed holding or using by Officer Eustace, had been a hand-held communication device.

(1) Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Has Committed the Actus Reus Of The Offence For The Charge Of “Drive With A Hand-Held Communication Device”? [ 31 ] The offence of “drive with hand-held communication device” is set out in subsection 78.1(1) of the HTA .

That provision makes it an offence for a motorist to 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, unless the motorist falls within an exemption provided in s. 78.1 or in the Display Screens and Hand-Held Devices Regulation , O. Reg. 366/09 [ emphasis is mine below ]: Hand-held devices prohibited

Wireless communication devices 78.1(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. Entertainment devices

(2) No person shall drive a motor vehicle on a highway while holding or using a hand-held electronic entertainment device or other prescribed device the primary use of which is unrelated to the safe operation of the motor vehicle. Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway while using a device described in those subsections in hands-free mode . Exceptions (4) Subsection (1) does not apply to , (

a) the driver of an ambulance, fire department vehicle or police department vehicle ; (

b) any other prescribed person or class of persons ; (

c) a person holding or using a device prescribed for the purpose of this subsection ; or (

d) a person engaged in a prescribed activity or in prescribed conditions or circumstances . Same (5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services . Same (6) Subsections (1) and (2) do not apply if all of the following conditions are met : 1. The motor vehicle is off the roadway or is lawfully parked on the roadway . 2. The motor vehicle is not in motion .

3. The motor vehicle is not impeding traffic . Penalty

(6.1) Every person who contravenes this

section is guilty of an offence and on conviction is liable to a fine of not less than $300 and not more than $1,000. 2015, c. 14, s. 23 . Regulations

(7) The Minister may make regulations, (

a) prescribing devices for the purpose of subsections (1) and (2); (

b) prescribing persons, classes of persons, devices, activities, conditions and circumstances for the purpose of subsection (4). Definition

(8) In this section, “motor vehicle” includes a street car, motorized snow vehicle, farm tractor, self-propelled implement of husbandry and road- building machine. (

a) Was The Defendant Holding Or Using A Hand-Held Communication Device, Considering That There Is Evidence That There Were 3 Electronic Devices In The Cab Of The Truck? [ 32 ] The defendant argues that there is no evidence that the defendant had been holding or using a hand-held communication device as Officer Eustace had failed to describe the device with any particularity that the defendant had been supposedly holding or using.

And, because there is evidence of three electronic devices in the cab which were not all hand-held communication devices then the defendant contends that Officer Eustace could have seen the defendant holding a device that was not a hand-held communication device. [ 33 ] However, the prosecution submits that Officer Eustace had testified to observing the defendant holding an electronic device in his left hand while he was typing with his right hand on the device and then to gaze at the device, which they submit is evidence that the defendant was using a hand-held communication device.

In addition, Officer Eustace had testified that he had observed a hand-held communication defence, which Officer Eustace had described as a “phone”, first in the defendant’s left hand and then in the centre console and mid-area of the cab of the transport truck , which Officer Eustace said had been within the reach of the driver of the commercial transport truck . [ 34 ] Furthermore, “typing on a device” and “gazing at the device after typing on the device” are normally actions associated with communicating with a hand-held wireless communication device.

And, in this case, it would be a reasonable inference that the defendant has been holding and typing on a hand-held-communication device when he had been observed typing with his right hand on a device that he had been holding in his left hand, as there is no evidence to contradict that inference.

[ 35 ] Moreover, for those three electronic devices which Officer Eustace said he had either observed in the cab of the truck during the traffic stop or had been aware of its existence, Officer Eustace testified he had observed a hand-held communication device he referred to as a “phone” in the centre console and an electronic log book mounted on the dashboard in the cab of the truck.

In regards, to the existence of a hands-free device in the cab of the truck, Officer Eustace had testified that he did not recall seeing the defendant wearing a hands-free device, but said he was aware there was a hands-free device connected by Bluetooth to the truck because he said he had actually heard a phone call being broadcast through the truck’s speakers when he had been talking to the driver. [ 36 ] First of all, the defendant could not have been holding or typing onto the electronic log book, since Officer Eustace had observed the electronic log book mounted on the dashboard in the cab of the truck and also because Officer Eustace had observed the defendant holding the device in question in his left hand while typing onto the device with his right hand.

Moreover, before the defendant could be exempted from using or touching the electronic log book it is legally required to be secured or mounted in the cab of the truck.

As such, a device mounted on the dashboard could not have been the device that Officer Eustace had observed the driver of the transport truck holding in his left hand, gazing at the device, and typing on it with his right hand. [ 37 ] Secondly, the defendant could not have been holding or typing onto the hands-free electronic device connected by Bluetooth to the truck, as Officer Eustace had testified that he did not recall observing the defendant wearing the hands-free electronic device, nor is there any no evidence that contradicts that testimony.

Furthermore, the action of holding and typing on a hand-held device contradicts the notion of that device being “hands-free”. [ 38 ] And thirdly, Officer Eustace said he had observed the hand-held communication device he described as a “phone” in the centre console of the cab of the truck, which had been within the reach of the driver of the commercial truck and would logically be the only electronic device of the three electronic devices in the cab of the commercial transport truck that the defendant could have held in his left hand while typing onto the device with his right hand and then gazing at the device, which would also align with the function of and purpose of using a cellphone to receive or transmit telephone communications, electronic data, mail, or text messages. (

b) The prosecution is not required to provide a detailed description or distinguishing features of the impugned device in order to prove that the impugned device is a hand-held communication device. [ 39 ] In R. v. Schull (2013), 44 M. V.R. (6th) 338 (B.C. Prov.

Ct.) , at paras. 29 to 31 , Joseph-Tiwary J. had to consider an argument raised by the accused motorist that the prosecution had not proven the motorist had been actually holding a cellphone, since the police officer did not provide a detailed description or distinguishing features of the device that the police officer had observed the motorist supposedly holding up to their ear.

In rejecting the motorist’s argument, Joseph-Tiwary J. explained that requiring more evidence such as the make or particular motif on the phone would be somewhat impractical for roadside traffic stops, unless a more intrusive search of motorists’ vehicles were to be undertaken in order to conduct a more thorough investigation into the type of device or its specific distinguishing features, which would then result in privacy incursions that are not normally envisaged in a traffic stop.

On the other hand, Joseph-Tiwary J. had relied on circumstantial evidence, such as the police officer’s observations of the device being held to the side of the driver's head as the driver was seen speaking, as compelling evidence that the driver was using the device in the like manner as a cellphone is used, to conclude that the device being held by the motorist was a cellphone even though the police officer did not provide a detailed description or distinguishing features of the device that was being held [ emphasis is mine below ]: To have required more evidence such as a model number perhaps, or make or particular motif on the phone, or particular capabilities for instance, would have required a more involved investigation and possible detaining of the driver roadside once the vehicle stop was made to facilitate a physical examination which would be a search of a device within a vehicle where the driver has privacy interests or perhaps even a search of the vehicle in situations where the device has been placed out of sight .

The practical reality is that the electronic device prohibition provisions contained in the Motor Vehicle Act, that is, use while driving, are by the very nature of the offence enforced by way of traffic stops conducted roadside. A more thorough investigation into the type of device or specific distinguishing features will result in privacy incursions not normally envisaged in a traffic stop . It is somewhat a dubious notion to envisage that the lawmakers intended a search of the vehicle in which a cell phone is allegedly being used when an individual is seen speaking into a hand-held device while driving.

There is also the issue of the practicalities of conducting prolonged investigations roadside every time a violator is stopped roadside. Of some relevance is R. v. Gill, [2012] O.J. No. 2511 an Ontario appeal on use of a wireless device on the grounds that there was no proof beyond a reasonable doubt that a cell phone is a wireless communication device and where defence had argued that the device could have been a toy.

The officer there had testified that he had seen the accused talking while holding what he said was a cell phone in his hand up to his ear and when stopped roadside, a flip phone was seen in the vehicle accessible to the driver. No distinguishing features of the device were presented. Justice E.A. Ready in finding the disputant guilty pointed out:

People do not normally talk to themselves with an object held to their ear. This would draw in this Court's estimation unwanted attentionto the person by the police. Who wants to be doing that? (

c) The prosecution does not have to prove that the “phone” being held by the defendant is capable of receiving or transmittingtelephone communications, electronic data, mail or text messages [40] In R. v.

Pizzurro (2013), 117 O.R. (3d) 779, 2013 ONCA 584 (O.C.A.), at paras. 9 to 14, Goudge J.A. writing for the Court ofAppeal for Ontario held that the requirement under s. 78.1(1) of the HTA that the device be capable of receiving or transmittingtelephone communications, electronic data, mail or text messages applies to prescribed devices, but not to cellphones as cellphones arewell known as a kind of device that is capable of receiving or transmitting, so that no similar requirement is needed for them.

GoudgeJ.A. also reasoned that to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmittingwould be unreasonable both for enforcement and for prosecution, so that the legislature could not have intended that result. In addition,Goudge J.A. concluded that the legislative purpose of s. 78.1(1) is that which had been described by the Court Of Appeal for Ontario inR. v. Kazemi (2013), 2013 ONCA 585 , 117 O.R. (3d) 300, [2013] O.J. No. 4300, as ensuring road safety and driverattentiveness to driving.

Moreover, Goudge J.A. explained that the road safety and driver attentiveness to driving purpose is best servedby applying the requirement that the device be capable of receiving or transmitting only to “prescribed devices”, but not to cellphones,and that these purposes are best achieved by entirely prohibiting a driver from holding or using a cellphone while driving [emphasis ismine below]: In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail ortext messages applies to prescribed devices but not to cellphones.

In its ordinary meaning, the wording of s. 78.1(1) provides that it isprescribed devices that must have that capability. This constitutes the legislature's direction to the minister to ensure that, in future, thedevices prescribed by regulation be of a kind that have this capability. On the other hand, cellphones are well known as a kind of devicethat are capable of receiving or transmitting. No similar requirement is needed for them.

Moreover, to impose the requirement that a cellphone held by a driver while driving was capable of receiving or transmitting would beunreasonable both for enforcement and for prosecution. The legislature could not have intended that result. The significant challenge for law enforcement is readily apparent. There can be no doubt that s. 78.1(1) was targeted principally atcellphones. Observing a driver holding or using a cellphone while driving would not be enough if this requirement existed.

For eachcase, the police would also have to find ways to immediately acquire and test the cellphone in order to determine that it was capable ofreceiving or transmitting. I do not think that the legislature would have intended such a burden to be imposed by a

section that isotherwise designed to operate in a simple and straightforward way. It would also be unreasonable for prosecution. Where, for example, the charge is using a cellphone while driving, to require the Crown,once it has proven the use of a cellphone to communicate, to also prove that the cellphone that was being used to communicate iscapable of doing so is unnecessary. It would be unreasonable to read s. 78.1(1) to impose such a burden. Finally, the legislative purpose of s. 78.1(1) must be considered. In R. v. Kazemi [(2013), 117 O.R. (3d) 300, [2013] O.J.

No. 4300, 2013ONCA 585] (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driverattentiveness to driving. It is best served by applying the requirement that the device be capable of receiving or transmitting only toprescribed devices, but not to cellphones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting adriver from holding or using a cellphone while driving.

To hold out the possibility that the driver may escape the prohibition because thecellphone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risksundermining these objectives.

For these reasons, I conclude that s. 78.1(1) of the HTA does not require that the cellphone held or used by a driver while driving beshown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages. [41] Ergo, the actions of the defendant holding the device in his left hand and typing on the device with his right hand and then gazingat the device are actions synonymous with someone using a hand-held communication device, such as a cellphone, which such devicehad been observed by Officer Eustace in the centre console of the cab of the commercial truck during the traffic stop.

This “phone” inthe centre console would have been within the reach of the driver. The other two electronic devices, being the electronic logbook thatwas mounted on the dashboard in the cab of the truck and the hands-free device that could be used in conjunction with the hand-held

communication device, could not have been mistaken by Officer Eustace as a hand-held communication device. As a result, the prosecution has proven beyond a reasonable doubt that the defendant had been using and holding a hand-held wireless communication device while in the driver’s seat of the commercial truck while the truck was stopped for a red traffic light on Dixie Road on August 16, 2016. (

d) As The Defendant Was Observed Operating A Motor Vehicle On Dixie Road and Stopped At A Red Light, Has The Prosecution Proven Beyond A Reasonable Doubt That The Defendant Had Been “Driving On A Highway” Within The Meaning Of S. 78.1(1) Of The HTA ? [ 42 ] The defendant argues that he had not been “driving on a highway”, within the meaning of s. 78.1(1) of the HTA , while stopped for the red traffic light at Dixie Road and Midway Boulevard. And to support his argument, he relies on R. v. McConnell , [2017] O.J.

No. 2018 (O.C.J.) , where it had been decided that being stopped at a red light while the motor vehicle had been put into the “park” mode or gear did not constitute the act of “driving”. However, in the case at bar, there is no evidence that the defendant had put the commercial transport truck into the park mode while he had been stopped at the red light.

Therefore, just being stopped at a red light when the vehicle is not been placed in the park mode or gear does not necessarily mean the defendant was no longer engaged in driving the vehicle. [ 43 ] Unfortunately, the term “driving” is not defined in the HTA or in the Display Screens and Hand-Held Devices Regulation , O. Reg. 366/09 . As a consequence, it has to be determined whether R. v.

McConnell does properly apply to the defendant’s particular circumstances in order to decide whether the prosecution has proven beyond a reasonable doubt that the defendant had been “driving on a highway” within the meaning of s. 78.1 of the HTA , when he had stopped his commercial transport truck on Dixie Road for the red traffic light. (

i) The ruling in R. v. McConnell [ 44 ] In the per incuriam decision of West J. in R. v. McConnell , [2017] O.J. No. 2018 (O.C.J.) , at paras. 118 to 121 , the convicted motorist McConnell had appealed his conviction of holding a cellphone while driving a motor vehicle on a highway and argued that since he had only actually began holding his cellphone after he had put his motor vehicle into the “park mode”, after it had been stopped for a red traffic light, then he had not been engaged in the act of driving.

West J. accepted the appellant’s argument and held that the learned Justice of the Peace had erred in finding that the convicted motorist had been driving just because the appellant happen to be parked in a live lane. In addition, West J. held that since “driving on a highway” is an essential element of the offence, then the prosecution had not proven that the appellant had been driving his motor vehicle on a highway beyond a reasonable doubt, since it had been “parked and stopped at a red light”.

Furthermore, West J. had also noted in his decision that the learned Justice of the Peace had made reference to being aware of some caselaw on the issue of whether being stopped for a red light constituted driving on a highway, but had not actually cited the name of that case. On that point, West J. also commented in his decision that he had been unable to find any case on that legal point.

On the other hand, West J., referred to the law for impaired driving offences and acknowledged that although the appellant was not driving the motor vehicle while it was parked and stopped at a red light, the appellant had been in “care or control of the motor vehicle”, and that the appellant had only put the charger into the bottom of his cellphone while he had been stopped at the red light in a parked motor vehicle and that is all that the appellant had done with the cellphone [ emphasis is mine below ]: There's no doubt that Mr.

McConnell's device that he was plugging into the charger while his car was in park stopped at a red light , which there's no other evidence to cast any doubt on his evidence in respect to that. The officer had no independent recollection of anything that occurred in respect of this matter. Obviously his notes were not of the quality that they ought to have been because if his notes had indicated that he observed Mr.

McConnell driving while he was holding onto the cell phone, when it appeared to be plugged into a charger, and if he had indicated that the cell phone was at his ear, I think that, even if it was past recollection recorded, that would be sufficient to support the charge. But his evidence, at page 6, this is the officer in cross-examination, he did not recall whether, when he first saw Mr. McConnell with a cell phone -- with the cell phone, that Mr. McConnell was driving up to the light or physically stopped, he could not recall . And he could not recall if Mr. McConnell was talking on the cell phone.

He could not recall how he saw Mr. McConnell on the phone. He couldn't recall if there were any vehicles in front of Mr. McConnell's vehicle and the stop sign. He couldn't recall the distance away from Mr. McConnell's vehicle when he made his observations. But most importantly he couldn't recall whether Mr. McConnell's vehicle was physically stopped . The learned justice of the peace, I have great respect for, indicates that, in effect, she accepts Mr. McConnell's evidence that he was stopped, the car was in park . She found that he was still in the process of travel .

She makes reference to being aware of some case law that I have been unable to find, and in my view, Mr. McConnell was not driving his vehicle. At most he was in care or control of it, stopped at a red light, and that he put the charger into the bottom of his phone while he was stopped and that's all he did with it. There

are no findings of fact by the Justice of the Peace that are contrary to that. REASONS FOR JUDGMENT In all of the circumstances, in my view, the learned justice of the peace erred in finding that because he was parked in a live lane thatthat meant he was driving, and in my view that was an error.

That was an essential element of the offence that was not proven by theprosecution beyond a reasonable doubt, and in my view, that should lead to an acquittal. (ii) For “fail to wear seatbelt” charges in Ontario, the Court of Appeal for Ontario has held that being stopped at a red light is“driving on a highway”. [45] In York (Regional Municipality) v. Tassone, 2007 ONCA 215 , [2007] O.J. No. 1109 (O.C.A.), the Court of Appeal forOntario had to decide the meaning of the phase “drives on a highway” for a seatbelt charge under s. 106(3) [now s. 106(2)] of the HTA.

The Court of Appeal held in Tassone at paras. 7 and 8 that it is important to take a broad purposive approach when interpreting thewords "drives on a highway" in s. 106(3) [now s. 106(2)], especially because of the important statutory purpose of minimizing driver andpassenger injuries resulting from car collisions. As such, the Court of Appeal viewed the words "drives on a highway" in that particularsection did not render the seat belt requirement inapplicable to the situation of drivers waiting at red traffic lights.

Moreover, the Courtof Appeal noted that accidents can occur even when vehicles are stopped at traffic lights, and therefore, they held that s. 106(3) [now s.106(2)] must be interpreted as requiring the driver to wear a seat belt continuously from the time they put the vehicle in motion on thehighway to the time the driver leaves the highway, parks the vehicle in a position in which the vehicle can be left unattended, or gets outof the vehicle [emphasis is mine below]: In our view, the provincial offences appeal judge erred in his

interpretation of s. 106(3). When interpreting the words "drives on ahighway" in that section, it is important to take the broad purposive approach adopted by several recent decisions of the Supreme Courtof 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 grammaticaland ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament. Read in light of the important statutory purpose of minimizing driver and passenger injuries resulting from car collisions, the words"drives on a highway", in our view, do not render the seat belt requirement inapplicable to the situation of drivers waiting at red trafficlights. Such an

interpretation would be inconsistent with the purpose of this statutory provision. Accidents occur even when vehicles arestopped at traffic lights. In our view, s. 106(3) must be interpreted as requiring the driver to wear a seat belt continuously from the timehe 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 thevehicle can be left unattended, or gets out of the vehicle. (iii) the R. v.

McConnell case is distinguishable from the case at bar [46] However, based on the factual circumstances in the case at bar, the case at bar is distinguishable from R. v. McConnell, [2017]O.J.

No. 2018 (O.C.J.), as there is no evidence that the commercial transport truck had been put into the “park mode” by the defendantwhile it had been stopped for a red traffic light, unlike McConnell who had put in his motor vehicle in the “park mode” while stopped forthe red traffic light before he had actually picked up and held his cellphone. [47] But more significant, the Court of Appeal for Ontario in York (Regional Municipality) v.

Tassone indicated that “parking avehicle” in a position where it no longer constitutes driving on a highway is the situation where the vehicle can be left unattended or thedriver gets out of the vehicle.

This finding by the Court of Appeal in Tassone of what parking a motor vehicle would mean, so as not toconstitute driving on a highway, would not include the situation where a motorist puts the motor vehicle into the “park mode” in a livelane of traffic while it is stopped for a red traffic light, and then stays in the vehicle at the red light. [48] Ergo, when applying the Tassone reasoning on what parking entails to the case at bar, then it cannot be said that the defendantwas no longer driving the vehicle as it had been decided by the court in R. v.

McConnell, since the evidence in the case at bar does notshow that the defendant’s transport truck had been both “parked” and stopped for the red light.

(iv) Other courts in Ontario have held that a motorist that is stopped at a red traffic light has committed the offence of “drivewith hand-held communication device” under s. 78.1(1) of The Highway Traffic Act [49] Several courts have indeed found motorists that were holding or using a cellphone while they were stopped for a red light to beguilty of driving with a hand-held communication device. See R. v. Petrovic, [2012] O.J. No. 4185 (O.C.J.), per Dechert J.P.; R. v.Peuker, [2016] O.J. No. 7072 (O.C.J.), per Bonas J.P.; R. v. Russo, [2013] O.J. No. 3564 (O.C.J.), per Opalinski J.P.; R. v. Srecko,[2016] O.J.

No. 4329 (O.C.J.), per Kowarsky J.P. [50] Furthermore, the Court of Appeal for Ontario in R. v. Kazemi (2013), 2013 ONCA 585 , 117 O.R. (3d) 300, [2013] O.J.No. 4300, had to consider the prosecution’s appeal of a case where a motorist had been charged with driving while holding a hand-heldwireless communication device under s. 78.1(1) of the HTA after a police officer had observed the motorist stopped at a stop light andholding a cellphone in her hand.

At trial, the motorist had testified that her cellphone had been on the seat but had dropped to the floor ofthe car when she had braked, and that she had only picked up the cellphone after she got to the red light and that was when she said shehad been observed holding a cellphone by the officer. The trial judge had found that she had been guilty of holding a hand-held wirelesscommunication device in contravention of s. 78.1(1). However, the Provincial Offences Appeal Court overturned the conviction.

And,although the Court of Appeal for Ontario subsequently restored the conviction and held that the motorist had indeed been holding ahand-held wireless communication device within the meaning of s. 78.1(1) when she had been stopped at a red light, the Court of Appealin R. v. Kazemi did not address or decide the question of whether being stopped at a red light constitutes “driving on a highway” for thepurposes of s. 78.1(1). (

v) How have other jurisdictions decided the issue of whether a motorist is “driving on a highway” when they are stopped at ared traffic light while using or holding a hand-held communication device? [51] In R. v. Ryan, [2007] N.J. No. 338 (N.L. Prov. Ct.), at paras. 13 to 15, Gorman J. had noted that the word “driving” is notdefined by Newfoundland and Labrador’s Highway Traffic Act and that the term had been interpreted in other contexts, as not being asbroad or as encompassing as such words as "care or control" or "operating" [emphasis is mine below]:

Section 176.1(2) of the HTA states: A person shall not use a hand-held cellular phone while driving a motor vehicle on a highway. In R. v. McCarthy (2005), 27 M.V.R. (5th) 131, I considered

section 176.1(2) of the HTA and concluded that "the word use was chosenby the drafters of the legislation to reflect a broad and encompassing prohibition on the use of a hand-held cellular phones for anypurpose by a person driving a motor vehicle ... Any use which could constitute a distraction to the driving of a motor vehicle would besufficient, even if the accused's driving was not actually distracted". In Aisthorpe, the Court of Appeal indicated that the "purpose ofprohibiting cell phone use while driving is clear: to prevent drivers from being distracted while driving". It concluded that "the word"use" in

section 176.1(2) "encompasses a variety of operations of a hand-held cellular telephone that could result in the driver beingdistracted". In this case, Mr. Ryan concedes that he was using a hand-held cellular phone. The issue to be determined is was he "driving" a motorvehicle at the time? This requires an

interpretation of the word driving in

section 176.1(2) of the HTA. The word driving is not defined bythe HTA and it has been interpreted, in other contexts, as not being as broad or as encompassing as such words as "care or control" or"operating" (see section 178(3) of the HTA,

section 253 of the Criminal Code of Canada, R.S.C. 1985, Victoria U Drive Yourself AutoLivery v. Wood, (BC CA), [1930] 2 D.L.R. 811 (B.C.C.A.), R. v. Mitchelmore (1984), 27 M.V.R. 68 (N.L.C.A.) and R. v. Toews (1985), (SCC), 21 C.C.C. (3d) 24 (S.C.C.)).1 Having said this, what approach is to be taken to defining theword driving in the context of

section 176.1(2) of the HTA? [52] Furthermore, Gorman J. in R. v. Ryan, explained at paras. 18 to 26, that in the English case of R. v. MacDonagh, [1974] 1 AllE.R. 257 (C.A.), Lord Widgery, C.J., for the Court of Appeal of England and Wales, had held at p. 258 that the word “drive” in itssimplest meaning referred to a person using the driver's controls for the purpose of directing the movement of the vehicle. However, forthe purposes of the Newfoundland and Labrador Highway Traffic Act, Gorman J. reasoned that the difficulty with the definition adoptedin R. v.

MacDonagh is that “movement” is not a necessary component of driving in the normal sense of that word, nor is movementcontextually appropriate for that particular case that was before the Newfoundland and Labrador court. Moreover, in providing anexample that driving a motor vehicle does not require movement, Gorman J. remarked that one would normally be considered to be

driving a motor vehicle while stopped at a yield sign or while allowing a pedestrian to cross the street, though in both those instances the motor vehicle would not actually be moved. As such, Gorman J. concluded that since using a hand-held cellular phone in either instance of the motor vehicle being stopped or in motion would cause the same type of distraction to the driver, which the legislation attempted to prevent, so that any definition of “driving” that would require movement must logically be rejected [ emphasis is mine below ]: Thus, the Court in determining the meaning of the word driving in the context of

section 176.1(2) of the HTA must consider the manner in which the word driving is used in its normal and ordinary sense, but it must also consider its meaning in the context of the

section and statute in issue and the Legislature's intent and purpose in prohibiting the use of hand-held cellular phones by anyone driving a motor vehicle . This point was made by the British Columbia Court of Appeal in R. v. Steeden (1995), 12 M.V.R. (3d) 303 . In that case, the accused was charged with driving a motor vehicle without due care and attention, contrary to section 149(1)(

a) of the Motor Vehicle Act , R.S.B.C. 1979 c. 288. An issue arose which required the Court of Appeal to interpret the word driving. The Court of Appeal described the task it faced in the following manner (at paragraph 8): The scope of activity encompassed by the verb "to drive" will vary according to the context in which it is used. The task in this case is to find the "context" which the Legislature intended should govern the scope of that activity in s. 149 of the Motor Vehicle Act .

In doing so, regard must be had for the ordinary meaning which usually attaches to the word, as well as for any special or unusual meaning that may emerge from a reading of the enactment and that may be necessary in order to give effect to the apparent purpose of the Legislature. HOW HAS THE WORD DRIVING BEEN INTERPRETED IN THE CONTEXT OF OTHER STATUTORY PROVISIONS? In R. v.

MacDonagh , [1974] 1 All E.R. 257 (C.A.) , it was held, at page 258, that in "its simplest meaning" the word drive "refers to a person using the driver's controls for the purpose of directing the movement of the vehicle ..." In Steeden , the Court of Appeal adopted the following definition of the word "drive" from the Shorter Oxford English Dictionary (3d ed.), as being appropriate (at paragraph 9): I begin by considering the meaning which ordinarily attaches to the verb "drive" when it is used in connection with motor vehicles. The Shorter Oxford English Dictionary (3d ed.) provides the following common usage

definitions which seem applicable in the context of a statute designed to regulate the use of motor vehicles on public highways: To urge onward and direct the course of (a vehicle or the animal which draws it, a railway train, etc.); ...

To cause to move along; After considering a number of authorities, the Court of Appeal adopted a definition for the word drive which involves both "movement and control ": It is my view, that when it is intended to describe conduct in relation to a motor vehicle, the ordinary meaning which attaches to the verb "drive" in the English language is one that combines the elements of movement and control; movement of the vehicle and control of that movement by the person said to be driving .

There is nothing about either the language or the apparent purpose of s. 149 to suggest that "drive" should be given any specialized or technical meaning in the application of that

section . Indeed, its ordinary usage seems consistent with the context in which s. 149 finds itself in

Part 3 of the Motor Vehicle Act which is devoted primarily, although not entirely, to the regulation of moving traffic through what might be called "rules of the road". The difficulty with this definition is that movement is not a necessary component of driving in the normal sense of that word, nor is movement contextually appropriate in this particular case . One would, for instance, normally be considered to be driving a motor vehicle while stopped at a yield sign or while allowing a pedestrian to cross the street, though in both instances the motor vehicle is not being moved .

Using a hand-held cellular phone in either instance would cause the type of distraction which the legislation attempts to prevent and thus, the Steeden definition must be rejected .

In R. v. Jacobs (1955), (BC CA), 113 C.C.C. 73 (B.C.C.A.), the accused was charged with unlawfully driving a motorvehicle on a highway, without due care and attention, contrary to

section 57 of the Motor-Vehicle Act, R.S.B.C. 1948, c. 227. Thecircumstances involved were described by the Court of Appeal as follows: The circumstances which led to the conviction were that the appellant drove his automobile on to the wrong side of the fairly busyDewdney Trunk Road on a dark night, and stopped the car momentarily opposite some letter boxes in order to extract his mail. He lefthis lights on and his engine running; he did not get out of his car. The stopping-place was 500 ft. east of a brow of a hill.

One GeorgeLank, proceeding east on his right-hand side of the Dewdney Trunk Road, on coming over the brow of the hill saw the appellant's lightsahead of him and drove to pass him on the right. He realized too late that appellant was stationary on the wrong side of the road. Hecollided with the mail boxes and the left rear side of appellant's car. The accused in Jacobs argued that because his car was stopped, he could not be found guilty of "driving".

The British Court of Appealrejected this proposition and concluded that "a person does not cease to drive an automobile merely because he stops temporarily forsome momentary purpose": The relevant part of the manoeuvre referred to was bringing the automobile to a stop in that place under those conditions. The operationof bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it. Therefore the findings offact constitute an offence under the section.

While it is not essential to our decision, we add, in deference to the argument of appellant's counsel, that a person does not cease to drivean automobile merely because he stops temporarily for some momentary purpose, e.g., in order to see if he can turn around in safety.Being stopped under such circumstances is an incident in the operation of the automobile which may be fairly described as driving it.

By a fair extension of this reasoning we think the appellant was driving the automobile while it was stopped under the circumstances ofthis case for a momentary purpose, the appellant being in control of and in the automobile with its machinery operating. It is notnecessary to decide under what circumstances the appellant would have ceased to be driving the car. A similar approach was taken Pinner v.

Everett, [1969] 2 All E.R. 257 (H.L.), in which Lord Reid concluded that the term driving"cannot be limited to periods in which the car is in motion" (at page 259): I must consider in what circumstances a person can, by the ordinary usage of the English language, properly to be said to be driving acar. Clearly the term cannot be limited to periods in which the car is in motion. Suppose the car is held up in a traffic jam and isstationary for five or ten minutes. No one would say that the driver is not driving the car during that period.

He may have switched offthe engine and be reading a book or a map; or he may have got out to clean his windscreen; and I do not think it would make anydifference if he got out to buy a newspaper from a newsvendor on the pavement or to go shopping. I do not think it could be said he isdriving the car while he is buying groceries. And I do not think that it would make any difference if he remained in the car while hispassenger was doing the shopping; he would then not be driving but waiting for his passenger. In R. v.

Toussaint (1984), (NB KB), 59 N.B.R. (2d) 361 (Q.B.), it was also held that if "an automobile which is beingdriven stops momentarily, for example at a stop sign or at an intersection while waiting for oncoming traffic to give an opportunity tomake a left turn, that is a situation which is part of what we mean when we speak about driving. The vehicle still maintains its capacity tocontinue on its way once the reason for its temporary stop no longer exists. The motor vehicle is still capable of moving and ofcontinuing on its way after the interruption of movement". [53] Moreover, in R. v.

Ryan, at paras. 27 to 28, Gorman J. had held that in interpreting the meaning of s. 176.1(2) of theNewfoundland and Labrador Highway Traffic Act in regards to the legislative purpose for prohibiting motorists from driving whileholding or using a cellphone, did not require that the vehicle be in motion to constitute the act of driving. Accordingly, Gorman J.concluded that a vehicle stopped at a traffic light is still being driven by its operator, even if it has temporarily stopped.

Moreover,Gorman J. also reasoned that it does not matter if the vehicle is in “park” or “drive” at the time, as in either case the danger of distractionfrom proper driving, which is the purpose of the provision, is still present during the temporary nature of the stop. As a result, GormanJ. held that using a hand-held cellular phone while stopped at a traffic light constitutes a breach of

section 176.1(2) of the Newfoundlandand Labrador Highway Traffic Act because it involves

an act which falls within the meaning of the word “driving” in the context of thatsection [emphasis is mine below]:

I conclude that for the purpose of

section 176.1(2) of the HTA , driving does not require that the vehicle be in motion . A vehicle stopped at a traffic light is still being driven by its operator, even if it has temporarily stopped . Whether the vehicle is in park or drive at the time is of no matter for the purpose of

section 176.1(2), as in either case the danger of distraction from proper driving, which is the purpose of the provision, is present because of the temporary nature of the stop. It will have to be left for another day to determine if pulling off to the side of the road or into a parking lot for the purpose of answering a hand-held cellular would violate

section 176.1(2) of the HTA , though in those instances, the word "parked" might constitute a more accurate description of what is occurring than the word driving. In this case, one could not fairly describe Mr. Ryan as being parked at the traffic light when he used his hand-held cellular phone . It is not necessary nor desirable in this case to attempt to formulate an exhaustive definition of the word driving in the context of

section 176.1(2) of the HTA . It is sufficient for the purposes of this case to indicate that I have concluded that using a hand-held cellular phone while stopped at a traffic light constitutes a breach of

section 176.1(2) of the HTA because it involves

an act which falls within the meaning of the word driving in the context of that

section . I have concluded that the drawing of a distinction between using a hand-held cellular phone , while temporary stopped in a motor vehicle in order to comply with the HTA and stopping a motor vehicle in an area outside of the normal flow of traffic, in order to use a hand-held cellular phone , constitutes the drawing of a distinction which is consistent with the Legislature's intent. [ 54 ] Also, in R. v. Jacobs , [1955] B.C.J.

No. 95 (B.C.C.A.), at paras. 6 to 8 , the British Columbia Court of Appeal had held that the operation of bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it, and as such, a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose [ emphasis is mine below ]: The relevant part of the manoeuvre referred to was bringing the automobile to a stop in that place under those conditions.

The operation of bringing an automobile to a stop is just as much driving it as is the operation of accelerating or steering it . Therefore the findings of fact constitute an offence under the section. While it is not essential to our decision, we add, in deference to the argument of appellant's counsel, that a person does not cease to drive an automobile merely because he stops temporarily for some momentary purpose, e.g., in order to see if he can turn around in safety . Being stopped under such circumstances is an incident in the operation of the automobile which may be fairly described as driving it .

By a fair extension of this reasoning we think the appellant was driving the automobile while it was stopped under the circumstances of this case for a momentary purpose, the appellant being in control of and in the automobile with its machinery operating . It is not necessary to decide under what circumstances the appellant would have ceased to be driving the car. [ 55 ] In addition, in Montreal (City of) v.

Cardinal , 2013 QCCM 82 , at paras. 10 to 12 , Mandeville J.C.M.M had decided that one cannot equate the state in which a motorist who chooses to immobilize his vehicle on the edge of the roadway, in order to park it, with the situation in which a motorist stands momentarily facing a red light, while waiting for a green light. Mandeville J.C.M.M noted that in the first case, the motorist withdraws from the traffic, while in the second case, the motorist is still actively part of it.

In this context, Mandeville J.C.M.M held that it remains just as important for a driver who is stopped momentarily at a red light to remain vigilant and not to be distracted by the use of a cell phone because he is still actively driving:

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