Brant (County) v. Vanboekel, 2016 ONCJ 823

CITATION: Brant (County) v. Vanboekel, 2016 ONCJ 823DATE: December 14, 2016 ONTARIO COURT OF Justice Central West Region County of Brant -and- Robert Vanboekel Proceedings conducted, 20 October 2016, at Brantford, Ontario Decision issued 12 August, 2016 Reasons issued 14 December, 2016 Appearances: DaSilva, P. for the prosecution McRoberts, A. for the Defendant Statutes Considered or Cited: Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (“HTA”) O. Reg. 366/09: Display Screens and Hand-Held Devices under Highway Traffic Act Provincial Offences Act, R.S.O. 1990, c.

P.33, as amended Cases Considered or Cited R. v. Defaria 2008 ONCJ 687 , [2008] O.J. No. 5427 R. v. Marujo, [2015] O.J. No. 6683 R. v. Pizzurro, 2013 ONCA 584 R. v. Sault Ste. Marie (City), (SCC), [1978] 2 S.C.R. 1299 R. v. WD (SCC), [1991] 1 S.C.R. 742 Witnesses: Roy Ralph, witness for the defence Vincent Stewart, investigating officer Robert Vanboekel for the defence Decision of the Court 1. For the reasons set out below, I dismiss the charge against Mr. Vanboekel.

Background and Evidence 2 . Mr. Vanboekel is charged with “Drive – handheld communication device” contrary to s.78.1(1) of the HTA . There is no dispute that the defendant was operating a motor vehicle, specifically a tractor-trailer combination westbound on Lynden Road at Wayne Gretzky Parkway in the City of Brantford on the date and time in question. 3 . Investigating officer Stewart gave evidence that he was positioned at a red traffic signal in the left turn lane of the northbound

section of Wayne Gretzky Parkway, and was positioned first in line at the stop line at the intersection. This afforded him a clear view of vehicles crossing the intersection along Lynden Road. Specifically, he observed the vehicle operated by the defendant, and advised he was able to see the defendant holding what he “believed to be” a cell phone. He made the conclusion that it was a cell phone as he observed the defendant holding a black device in the shape of cell phone, in the defendant’s right hand.

The hand was positioned at about the defendant’s chest height, while the defendant’s left hand was on the steering wheel. The defendant appeared to be manipulating the surface of the device in a manner that appeared to be pushing buttons on a keypad. His observations lasted about five to eight seconds, since the tractor-trailer took about that long to traverse the intersection across the officer’s path, having started from a stop prior to entering the intersection. 4 .

The officer then effected a traffic stop about two blocks west of the location of the initial observations, as it took some time for the officer to be able to enter the intersection safely, catch up to the defendant’s motor vehicle and get that vehicle to stop safely. There is no dispute that the vehicle (and driver) stopped was that initially observed by the officer. 5 . Upon the stop, the officer approached the passenger side door of the tractor-trailer, climbed up onto the step to be able to speak with the driver and look into the cab.

He made a demand for identification and obtained the driver’s licence; there is no dispute about the driver operating the motor vehicle. 6 . After the officer explained the reason for the stop, the defendant made a statement. The Court held a voir dire and determined that the statement was made voluntarily. The substance of the statement made as reported by the officer was that there was a device in the motor vehicle, which wasn’t a phone but a “GPS device” which allowed the driver’s employer to track his whereabouts. 7 . The officer requested and was given the device to examine.

As part of the evidence, the officer tendered a photo image of the device; there is no dispute that this is the device that was in the cab. After examining the device, the officer concluded it had a visible, readable screen, had a black antenna extending from the body of the device and had a visible display which the officer understood to be a signal strength meter. 8 .

Under cross-examination, the officer rejected a suggestion that the device he observed in the hands of the driver was in fact a water bottle (as would later be the evidence of the defendant), and concluded that he had seen the communication device later seen in the cab of the truck, and shown to the officer by the driver. He recognized the maker of the device- Motorola – as a maker of communication devices and, together with the observation of the signal strength meter, reaffirmed his conclusion that the device in the hands of the driver was in fact a communications device proscribed by the HTA . 9 .

The defendant, as indicated above, does not dispute much of the evidence of the officer. However, in his evidence, he asserted that he was holding a water bottle and that he was fidgeting with the top cap to allow him to have a drink of water. He presented the water bottle he said was also in his truck on that occasion, which is blue in colour.

There is no dispute that water bottle tendered in evidence is larger than the digital device shown in the photo, with the top surface being smaller than what is described by the officer and the depth (or, height, depending on how one were to characterize the dimension) being much deeper (some ten to twelve inches rather than an inch and a half deep). 10 . The defendant gave further, detailed evidence about the nature of a scanner, which is what he called the device depicted in the photo and which the officer asserts was previously described by the defendant as a “GPS device”.

He reports being provided that device by his employer, to scan and record details of items he was delivering to customers. Its functions include recording details of the start of a delivery (or arrival at a customer location), as well as its conclusion. It contains details of customer locations and may also transmit details of the driver’s location to the employer’s systems. He keeps that device in his possession between shifts and is responsible for keeping it charged. 11 . The defendant’s evidence establishes that the device was located in a cup holder within easy reach of the driver’s right hand.

A photo taken by the defendant was tendered in evidence showing where both the water bottle and device were located at the time of the traffic stop. There was no issue that this was an accurate reflection of what the officer would have observed. 12 . The defendant confirmed that he does not – indeed, it is his belief he cannot – use the device to make phone calls. He further advised he had his personal cell phone in the truck, however, it was stowed in his knapsack on the front seat of the motor vehicle, and not visible to him. He does not use that to make phone calls while driving. 13 . Mr.

Ralph, the defendant’s supervisor and person responsible for training the driver on the use of the device, gave further evidence, substantially confirming the functionality – as well as limitations on the device depicted in the picture. Analysis and Reasons 14 . At an early stage in the proceedings, the defence objected to the entering the photo image of the device said by the officer to have been held by the defendant and triggering this investigation into evidence.

The objection would have been based on a claim that the photo was taken as a result of an illegal search or seizure, however, as no Charter application had been made, this objection was withdrawn. 15 .

Section 78.1 of the HTA provides: 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. 16 . The prosecution holds that it has proven the essential elements of the charge and that a conviction should be entered. 17 . The defence offers several lines of argument. 18 . First, the defence holds that the device in question is exempted by s.6(1) of O.Reg. 366/09 , which provides “6.

(1) Drivers of commercial motor vehicles, within the meaning of subsection 16 (1) of the Act, may drive a commercial motor vehicle on a highway with a mobile data terminal [1] display screen in the vehicle visible to the driver.” 19 .

Section 7 of the same Regulation further provides: The display screens of the following devices may be visible to any driver in a motor vehicle driven on a highway: 1. A device that displays, i. information on the conditions, use and immediate environment of the vehicle, or ii. information on road or weather conditions. 2. An ignition interlock device. 3. A car audio control that displays only text or static images. 4. A hand-held device that displays only text or static images and is connected directly into and operates using the audio system controls of the motor vehicle. 20 .

Finally,s.8 of that same Regulation further stipulates “The exemptions in sections 2, 3, 4, 5, 6 and 7 apply only if the display screen of the computer, mobile data terminal or other device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion.” 21 . It is clear that the stipulations in s.8 apply to either of the exemptions in s.6 and 7. 22 . The defence argues that by the device being positioned in the cup satisfies the requirement that the device be “placed securely in or mounted to the motor vehicle”, specifically that it was placed securely. 23 .

Clearly, other than asserting that the device was positioned in the cup holder (and the photo illustrating that), there is no evidence that would allow me to assess whether it was “placed securely”, as required by the Regulation .

Since The burden of proving that an authorization, exception, exemption or qualification prescribed by law operates in favour of the defendant is on the defendant, and the prosecutor is not required, except by way of rebuttal, to prove that the authorization, exception, exemption or qualification does not operate in favour of the defendant, whether or not it is set out in the information [2] and there is insufficient evidence to demonstrate that he has met a condition of that exemption, I am unprepared to accept that he qualifies for the exemption. 24 .

In the alternative, the defendant argues that the prosecution has failed to demonstrate that the device was “hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages”. 25 . Before embarking on an analysis of that leg of the submissions, I must remind myself with regard to the nature of the offence and the burden of proof. It is common ground between the parties that the offence with which the defendant is charged is one of strict liability, pursuant to the principles set out in Sault Ste.

Marie . 26 . Having regard to the wording of the charging section, including the numerous exemptions established by law, as well as the potential penalties which flow from a conviction for the offence charged, I agree with them. 27 . However, the defence argued that I ought to apply the principles in R. v. W.(D.) taking note of the admonishment adopted by Duncan, J in Defaria , and again adopted by Justice Baldwin, as follows: The direction in W.D. speaks to the proper assessment of a defendant's evidence in the context of a criminal case where the Crown bears the burden of proof beyond a reasonable doubt.

As mentioned, in this case, the matter in issue was due diligence, a point on which the appellant carried the burden on the balance of probabilities. In my view, it would be illogical and inappropriate to give the defendant the benefit of reasonable doubt on credibility when he bears the burden of proof on a balance of probabilities. I am firmly of the view that W.D. has no application to regulatory offences where the defence of due diligence is to be assessed by the trial court 28 .

Having specific regard to the last sentence quoted above, this decision can easily be confused as foundation for saying that for offences categorized as strict liability, that “W.D. has no application”. A consequence of that approach would be to disentitle the defendant from giving evidence against that called by the prosecution where he or she would be entitled to the “benefit of reasonable doubt on credibility”. In my view, that is too broad an

interpretation, since it would preclude a defendant from challenging the factual foundation of the charge against him on its face. Any evidence that the defendant provides to challenge the proof of the actus reus can and should be tested by applying the principles in R. v. W.(D.) . In the event that the defence adopts proof of the actus reus but proceeds to rely on a defence of due diligence or other defences consistent with R. v. W.(D.) then the principles in R. v. W.(D.) would not apply. 29 . With that framework in mind, I now turn to the question of whether the prosecution has proven that the device was 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”. 30 . The defence relies on the decision of the Ontario Court of Appeal in R. v. Pizzurro in which the court found In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices but not to cell phones. In its ordinary meaning, the wording of s. 78.1(1) provides that it is prescribed devices that must have that capability.

This constitutes the legislature's direction to the Minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability. On the other hand, cell phones are well known as a kind of device that are capable of receiving or transmitting. No similar requirement is needed for them. 31 . The evidence clearly establishes that the device that would have been observed by the investigating officer was not a cell phone.

Thus, the burden of proving that the device was otherwise “capable of receiving or transmitting telephone communications, electronic data, mail or text messages” falls to the prosecution. 32 . In this regard, I have the evidence of the officer, as well as the defendant and the defendant’s supervisor. From that evidence, it is clear that the device is (or is designed to be) hand-held. It is small, portable, and designed to be used at various work sites. It is used to transmit data regarding product delivered to customer sites to the employer’s systems.

It does not appear to fall within the list of device types enumerated in sub-sections 6 or 7 of the Regulation , although it may indeed qualify as a mobile data terminal. 33 . As it happens, the defence evidence does little if anything to convince me that it is anything else, except satisfying me that it cannot be used as a mobile telephone for making voice calls. 34 . Accordingly, I find on the entirety of the evidence that the device is one intended to be proscribed by the charging section. This finding arises from the conjunction of both the prosecution and defence evidence. 35 .

Given this finding, I do not find it necessary to address the argument advanced by the defence in terms of how to weigh lay expert evidence, as was canvassed thoroughly by my brother Justice Deckert, in R. v. Marujo . 36 . Finally, the defence argues that the defendant was neither holding nor using the device. 37 . On this point, the evidence is clearly inconsistent. The officer’s evidence is that he saw the defendant holding the device. He made this observation at a distance of some five or six lanes of traffic. He observed the driver fidgeting with the device in a manner consistent with tapping a key pad.

He believed the defendant was holding if not using a hand-help communications device. After stopping the defendant, he observed and photographed the device that I have found to be a hand-held communications device. 38 . The defendant asserted he was holding a water bottle; he was unwavering in that evidence. He produced the water bottle in question. 39 . Although the water bottle is blue in colour compared to the black communications device and having a top surface area slightly smaller than that of the device, it is not hard to imagine how the officer may have mistaken one for the other. 40 .

The defendant and his supervisor both established that there is no purpose to holding or using the device while travelling. It is used to transmit inventory data to the employer’s systems. The prosecution elicited no evidence that it could or may have been used to update destination data such as might be needed for the functioning of a global positioning system, or for any other purpose. 41 . I found the defendant completely credible in his evidence; it remained consistent and forthright, both in examination-in-chief as well as under cross-examination.

It did not bear any hints of being designed to support the specific legal argument that was eventually made. It was in fact supported by the defendant’s supervisor. There was nothing in evidence to establish that the witness had any particular interest in the outcome of the matter, aside from the fact he was called by and on behalf of the defendant. 42 . Even if I do not find that the defendant’s evidence provides a full challenge to the officer’s evidence, I am clearly satisfied that it raises a reasonable doubt as to what the defendant was holding at the time of the officer’s observations. 43 .

For these reasons, I believe there exists reasonable doubt as to whether the defendant was holding a hand-held communications device or some other object, and therefore dismiss the charge. Issued at Brantford, Ontario, December 14, 2016 His Worship Donald Dudar Justice of the Peace