R. v. Srecko, 2016 ONCJ 499

CITATION: R. v. Srecko, 2016 ONCJ 499 Case Name: R. v. Srecko Between Regina, and Maric Srecko Ontario Court of Justice Toronto, Ontario P. Kowarsky J.P. Heard: July 13, 2016 Judgment: August 16, 2016 Representation: Ms. C. Morais-Bernardo: City Prosecutor Mr. J. Davie: Paralegal for the Defendant, who was assisted by a Bosnian Interpreter. REASONS FOR JUDGMENT A. THE CHARGE 1. The defendant is charged with “Drive hand-held communication device” contrary to

section 78.1(1) of the Highway Traffic Act whichreads as follows: “No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device orother prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or textmessages.” B. THE EVIDENCE FOR THE PROSECUTION 2. Prior to the officer’s commencing his testimony, the prosecutor asked him questions in order to qualify his notes, which he stated thathe required in order to refresh his memory. Mr.

Davie objected because the officer did not have an independent recollection of the event.Relying on the decision in R. v. Colangelo, 2007 ONCJ 489 , [2007] O.J. No. 4070 (O.C.J.), I permitted the officer to refer tohis notes to refresh his memory. 3. Toronto Police Officer Steve Min, testified for the Prosecution. His testimony may be summarised as follows:

a) On October 15, 2015, at approximately 9:05 pm, he was in uniform, driving a marked police vehicle westbound on Lakeshore Blvd.West, Toronto. He was in the right-turn lane, approaching Jameson Avenue, conducting cell phone enforcement.

b) The traffic light was red for him at the time. He pulled up beside a black Sports Utility Vehicle, which was also stopped for the redlight. On the driver’s side window he saw a reflection of an illuminated hand-held communication device; the driver’s hand was movingover the screen and the driver was looking down.

c) He activated his emergency equipment, pulled the vehicle over, and observed a Samsung cell phone with the touch screen facingupward on the passenger’s seat next to the male driver. He made a demand for his Driver’s Licence, Registration and proof of insurance,all of which the driver provided.

d) The driver produced a valid Ontario Driver’s licence in the name of Maric Srecko with an address of 38 Dutch Myrtle Way in

Toronto, and a date of birth of September 24, 1962. The digital photograph on the licence matched the likeness of the driver, and theofficer was satisfied with his identification. The Ontario Licence Plate number of the vehicle was BTMY 429.

e) When he first observed the vehicle, he did not actually see the cell phone. He saw only its reflection in the driver’s side window. Hefirst saw the cell phone after he stopped the driver. C. THE EVIDENCE OF THE DEFENDANT 4. Prior to calling the defendant to testify, Mr. Davie asked for the DVD relating to the incident to be shown in court. The DVD had beendisclosed to the defendant by the prosecutor. After the DVD had been shown, Mr. Davie requested that it be entered into evidence asDefence Exhibit #1, which I did. 5. Mr. Srecko’s evidence may be summarised as follows:

a) He is a full-time limousine-driver, and on the date and time in question, he was driving the vehicle concerned westboundon Lakeshore Blvd. West towards Jameson Avenue, and was stopped at a red light.

b) While he was waiting at the red light he answered his cell phone “through the blue tooth in my left ear. Both hands wereholding the steering wheel.” The cell phone was between the two front seats where the coffee holder is located.

c) He was not texting at the time. The officer asked him if he had been using his cell phone. “No, I was not holding it” was hisreply. He testified that even when the vehicle is stopped, when the phone rings, he touches the blue tooth button in his left earin order to answer the call. When his phone rang while he was stopped at the red light, he glanced at the screen, and then touched theblue tooth button in his left ear, and spoke without holding the phone.

d) That is how he answered the phone at the time, and that is how he always does so. He denied that he had been texting. D. THE ISSUE 6. The testimony of the officer is that he saw the reflection of the defendant through the driver’s side window. The driver was lookingdown, and his hand appeared to be moving over the illuminated screen of a cell phone. 7. The defendant’s testimony is that he was talking on the cell phone using his blue tooth device; he was not holding the cell phone norwas he texting. 8. Even if I were to accept the evidence of the defendant, would his communication through his blue tooth amount to “using” the cellphone within the meaning of

section 78.1(1) of the Highway Traffic Act? E. THE CLASSIFICATION OF THE OFFENCE 9. In R. v. Sault Ste.

Marie (City), (SCC), [1978] 2 S.C.R. 1299, Dickson J. speaking for the Supreme Court of Canada,held that compelling grounds existed for the recognition of the following three categories of offences: 1.) "Offences in which mens rea, consisting of some positive state of mind such as intent, knowledge or recklessness, must beproved by the prosecution either as an inference from the nature of the act committed, or by additional evidence; 2.) Offences in which there is no necessity for the prosecution to prove the existence of mens rea; the doing of theprohibited act prima facie imports the offence, leaving it open to the accused to avoid liability by proving that he took all reasonablecare.

This involves consideration of what a reasonable man would have done in the circumstances. The defence will be available if theaccused reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took allreasonable steps to avoid the particular event. These offences may properly be called offences of strict liability; and 3.) Offences of absolute liability where it is not open to the accused to exculpate himself by showing that he was free of fault." 10. Mr.

Justice Dickson found that public welfare offences would, prima facie, be classified as strict liability offences.

11. In R. v. Allen (1979) (ON SC), 59 C.C.C. (2d) 563, a case involving an offence of operating a commercial vehicle with an overweight double axel under the Highway Traffic Act Fitzgerald D.C.J. noted: "Without strict compliance with such provisions as rules of the road and speed limits, traffic could not move safely upon the highway, and in many cases, could not move at all. Even minor departures from these regulations may cause situations approaching chaos. Many provisions of this [Highway Traffic] Act will therefore impose absolute liability." 12. In R. v.

Nickel City Transport (Sudbury) Limited, (ON CA), 82 C.C.C. (3d) 541, Madam Justice Arbour J.A in aconcurring judgment, but with a different reasoning than Tarnopolsky, J.A noted that: "…the appellant must show not only that the offence should be classified as one of absolute liability pursuant to the analysis requiredunder the authority of R. v. Sault Ste. Marie, but also that there is no constitutional impediment to that conclusion.

If the applicablestatutory provisions create an exposure to imprisonment or probation sufficient to threaten the liberty or security interest protected bySection 7 of the Canadian Charter of Rights and Freedoms, an absolute liability offence will be unconstitutional," and that "imprisonment(including probation orders) deprives persons of their liberty." An offence, the learned Judge continued, has that potential "as of themoment it is open to the judge to impose imprisonment." 13.

It is clear that under the Provincial Offences Act the possibility of imprisonment arises only in exceptional circumstances upondefault, and not upon conviction. 14. The decisions of the Supreme Court of Canada in Sault Ste. Marie and R. v. Chapin (SCC), [1979] 2 S.C.R. 121, stand for the proposition that public welfare offences such as those created by the Highway Traffic Act are, prima facie, offences of strict liability, and absolute liability offences will be exceptional and will only be recognized in the face of clear legislative direction. 15. The defendant is charged under

section 78.1 (1) of the Highway Traffic Act, which provides as follows: “No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or otherprescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.” 16. The offence carries a set fine of $400.00 plus three demerit points. 17. In Sault Ste.

Marie the Supreme Court set out the following guidelines for determining whether an offence is one of absolute liability: • the over-all regulatory pattern adopted by the legislature; • the subject matter of the legislation; • the importance (or severity) of the penalty; • the precise language used. 18. In R. v. Kazemi, 2013 ONCA 585 , [2013] O.J. No. 4300 (O.C.A.) the Ontario Court of Appeal was dealing with the meaning of “holding” in

section 78.1(1) of the H.T.A. The Court held that “Road safety was best ensured by a complete prohibition on having a phone in one’s hand while driving.”

19 . At paragraph 13 of Kazemi the Court stated the following:

Section 78.1(1) was added to the H.T.A. with the enactment of the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4 . On third reading, on April 22, 2009, the Minister of Transportation described the purpose of the amending legislation this way: [O]ur 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, driver should focus on one thing and one thing only: driving. See: Ontario, Legislative Assembly, Official Report of the Debates (Hansard), 39th Parl., 1st Sess., (22 April 2009) (Hon. James Bradley). 20 . And at paragraph 14, of Kazemi the court stated the following: “Road safety is best ensured by a complete prohibition on having a cell phone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cell phone.

It removes any temptation to use the cell phone while driving. And it prevents any possibility of the cell phone physically interfering with the driver's ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cell phone in his or her hand while driving.” 21 . It seems to me that by design the Legislature placed

section 78.1(1) in

Part VI of the H.T.A., which is headed: “Equipment” required for motor vehicles in order to safeguard the safety of drivers and all other users of the highways in this province, including pedestrians as well as property. Accordingly, the legislation in

Part VI contains requirements in relation, inter alia , to lights, brakes, windshield wipers, mirrors, signs and colour coating which obstruct the view of drivers. 22 . As the courts found in R. v. Chadwick, [2011] O.J. No. 3748 (O.C.J.) and R. v. Grech-Vennare, [2013] O.J. No. 2387 (O.C.J.) , I am satisfied that in accordance with the guidelines of the Supreme Court of Canada in Sault Ste. Marie , the offence of distracted driving set out in

section 78.1(1) of the H.T.A. is an absolute liability offence, which requires the prosecutor to prove the actus reus of the offence beyond a reasonable doubt in order to sustain a conviction. F. ANALYSIS 23 . The essential elements of the offence before me are: • A person • Driving 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. 24 .

The evidence is compelling that all these elements were present during the incident in question. In my view, the only contentious aspect of the case is whether the defendant was holding or using the cell phone or doing both at the time. 25 . In the Officer’s Notes that were disclosed to the defendant, he states: “Driver advised to using his cellphone while stopped at the red light to text clients.” 26 . The officer repeated this statement during his cross-examination.

27. On the other hand, in his evidence, the defendant denied making such a statement, and testified that he had not been texting anyone atthe time. He said that while he was waiting at the red light he answered the phone “through the blue tooth in my left ear.” The cell phonewas between the two front seats in the space where the coffee holder is. He glanced at the phone but did not touch it. Both of his handswere holding the steering wheel. When the phone rang he did what he always does, and that is he pressed the blue tooth button in his leftear. 28.

During the trial, I watched and listened carefully to the DVD of the incident, which is Defence Exhibit #1. While preparing thisjudgment I again viewed the DVD numerous times. It is clear that the defendant told the officer when he approached the defendant’svehicle that he was using the cell phone while he was stopped at the red light. However, whatever the defendant said to the officer aftermaking that comment is unclear, and I am unable to decipher what the defendant said. 29. The officer saw the defendant’s reflection through the driver’s side window.

He appeared to be looking down, and his hand appearedto be “moving over the screen.” It was not until the officer approached the vehicle after stopping it that he actually saw the cell phone onthe passenger’s seat with the illuminated screen facing upwards. 30. It must be remembered that in order to register a conviction I must be convinced of the defendant’s guilt beyond a reasonable doubt. Ido not find that the reflection of what the officer saw is sufficient to satisfy me that the defendant was using the cell phone by lookingdown and moving his hand over the screen.

Consequently, I accept that the defendant was using his cell phone through his blue toothequipment. 31. However, it is clear from the evidence of the defendant coupled with his statement on the DVD that he was using the cell phonewhile stopped at the red light. Whether he used it while the vehicle was stopped or while his vehicle was in motion does not, in my view,exculpate him. But his evidence is that he was using the phone through his blue tooth, and never touched the phone at all. Does thisconstitute “using” within the meaning of that term in the legislation under consideration? 32.

In accordance with the third element of the credibility test as set out by the Supreme Court of Canada in R. v. W.D. (SCC), [1991] 1 S.C.R. 742 (S.C.C.) after considering all the evidence in this case, I am left with a reasonable doubt as to whether thedefendant was using the cell phone by holding it. The reasonable doubt always favours the defendant, as it does in the case before me. 33. What about the fact that the defendant admitted to using the cell phone through his blue tooth?

Section 47(3) of the ProvincialOffences Act provides as follows: “The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendantis on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption orqualification does not operate in favour of the defendant, whether or not it is set out in the information.” 34.

Section 78.1(2) of the Highway Traffic Act deals with driving while holding or using a hand-held electronic entertainment device,which is not germane to this case. 35. Having found that the defendant was using his cell phone through his blue tooth, I turn now to

section 78.1(3) of the HighwayTraffic Act, which provides as follows: “Despite subsections (1) and (2), a person may drive a motor vehicle while using a device described in those subsections in hands-freemode.” 36. I am persuaded by the evidence of the defendant that he was using his cell phone through the blue tooth equipment which is a hands–free device. Consequently, I find the defendant not guilty. P. Kowarsky J.P.