R. v. Schull Date:, 2013 BCPC 132

Citation: R. v. Schull Date: 20130423 2013 BCPC 0132 File No: AH0061323441 Registry: Port Coquitlam IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. ROBERT SCHULL ORAL REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE JOSEPH-TIWARY Appearing for the Crown: The Corporal Disputant: S. Ross Place of Hearing: Port Coquitlam , B.C. Date of Hearing: November 3, 2012 Date of Judgment: April 23, 2013

[1] THE COURT: This is my decision in R. v. Schull, heard November 3rd, 2012. Mr. Ross appeared for the Defence. [2] Mr. Schull is charged with using an electronic device while driving, contrary to s. 214.2(1) of the Motor Vehicle Act. [3] Defence counsel concedes that if his client had been holding a cell phone device at the time, then such holding would haveamounted to the offence charged. The Defence Case [4] The defence argues, relying on R. v. Pizzuro, [2012] O.J.

No. 860, an Ontario decision on driving on a highway while holdingor using a handheld wireless communication device contrary to s. 78.1(1) of the Ontario Highway Traffic Act, that the Crown isrequired to prove that the device held by the disputant was capable of receiving or transmitting telephonic communications, electronicdata, mail, or text messages and has failed to discharge that burden. [5] Further, the defence maintains that the Crown has failed to prove beyond a reasonable doubt that the driver was holding a cellphone. Defence reliance on R. v.

Pizzuro, supra [6] In the Pizzuro case, supra, the driver was allegedly seen typing or reading with the cell phone held in his left hand. The devicewas emitting light. The driver dropped the device and when stopped, a cell phone was noted in the passenger seat or console area of thevehicle. In paragraphs 9 and 10 of the decision, the Court found that there was no evidence that the device seen by the officer wascapable of receiving or transmitting telephonic communications, electronic data, mail, or text messages.

The Court considered proof ofsuch a capability an essential element of the offence. [7] Some five months after the Pizzuro decision, supra, the Ontario Court of Justice in another appeal, R. v. Kazemi, 2012 ONCJ383 , [2012] O.J. No. 2826, was asked to rule whether the Crown had to prove that the device being used by the driver wasoperable at the material time, that is, capable of sending or receiving a wireless communication. [8] Defence in advancing that argument relied on Beatty J.'s decision in R. v. Pizzuro, supra, with regard to the capability of thedevice.

In paragraph 26 of the Kazemi decision, supra, decision, the judge pointed out that an appeal of the decision in Pizzuro waspending at the time. In paras. 28 and 29 of the decision, he went on to say: [28] With the greatest of respect, I must disagree with Beatty J. In my opinion, the proper

interpretation does not require such proof.Again, the relevant subsection states the following: 78.1

(1) 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.[Emphasis in cite] [29] The devices subject to the provision are a "hand-held wireless communication device" or "other prescribed device that is capableof receiving or transmitting telephone communications, electronic data, mail or text message". It is only other prescribed devices that aresubject to this qualification. [9] The Court in arriving at its decision was of the opinion that the only grammatically correct

interpretation of the

section did notrequire evidence of such capability and that such an

interpretation was the only one consistent with the objective of the provision itself. The Court went on to say that the distraction and interference with driving occurs irrespective of whether the device is operable at thetime. [10] The Court pointed out that the additional condition of capability of receiving and transmitting is placed on other prescribeddevices alone so as to place a limit on the type of devices that could fall within the regulatory provisions but that there was norequirement for the prosecution to prove in either case that the device was operable at the time. [11]

Section 214.2(1) of the British Columbia Motor Vehicle Act and Regulations prohibits the use of an electronic device whiledriving on a highway, with "use" defined as including holding of the device in a manner in which it may be used. [12]

Section 214.1 provides: "electronic device" means (

a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function, (

b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or (

c) a prescribed class or type of electronic device. [13] The Use of Electronic Devices While Driving Regulation, B.C. 308/2009 prescribes what falls within a prescribed class or typeof electronic device under sub-clause (c).

[ 14 ] The use of the word "or" after

Section 214.1(

b) makes it clear that an electronic device includes or means a device that falls within any one of the three sub-clauses of s. 214.1 of the Act. Sub-clause (

b) alone requires that the hand-held electronic device be capable of transmitting or receiving electronic mail, or other text-based messages. Devices under sub-clause (

a) are not required to have this additional qualification. [ 15 ] It follows that a hand-held cellular telephone or another hand-held electronic device that includes a telephonic function is an electronic device without any qualification for the purposes of s. 214.2(1) of the Act. [ 16 ]

Section 2 of the Motor Vehicle Regulation 308/2009 in defining electronic devices under s. 214.1(

c) includes any electronic device that includes a hands-free telephone function, a GPS, hand-held electronic device, one of the purposes of which is to process or compute data, hand-held audio players, hand microphones, and television. The capability to transmit or receive oral communications is confined to hand microphones alone. That requirement is further limited to not requiring such transmission or receipt to be at the same time.

With regard to all of the other prescribed devices, the Regulations do not stipulate any kind of transmission or receipt qualifications. [ 17 ] I am unable to find that there is a requirement for the Officer to prove beyond a reasonable doubt that the alleged device seen had the capabilities described in s. 214.1(

b) where an officer alleges that the device being held was a cell phone or hand-held electronic device that includes a telephone function. Defence assertion that the Officer failed to prove beyond a reasonable doubt that the driver held a cell phone [ 18 ] Counsel argues that the Officer has provided no evidence of any distinguishing feature seen on the device that substantiates his assertion that the device held by the driver was a cell phone or that the device seen within the vehicle in the console was a cell, specifically iPhone.

He asserts that lack of details to cross-examination answers evidenced elusiveness on the part of the Officer. [ 19 ] The prosecution evidence is that the driver was seen talking on a cell phone, held with his left hand, and up to the side of his head. The observations were made as the Officer passed the disputant on a two-lane portion of the roadway, with the two vehicles travelling towards each other, passing one another closely as they proceeded their respective ways. The left side of the disputant's vehicle passed very close to the police vehicle.

When the driver was stopped, there was a black cell phone, specifically an iPhone in the console of the vehicle. [ 20 ] The Officer acknowledged in testifying that he was relying on his notes which were made some ten minutes following the issuance of the disputed ticket. When cross-examined, he read from his notes his observations made on the day of the violation.

He acknowledged he was unable to say what, if any, particular feature of the device distinguished it as a cell or iPhone. [ 21 ] A logical assessment of the Officer's direct observations of the device being held to the side of the driver's head as the driver was seen speaking is compelling evidence that the driver was using the device in the like manner as a cell phone is used, that is, hand- held at the side of the head to facilitate both speaking into it and listening at the same time. The disputant was driving at the time.

He was seen talking for approximately two seconds as the Officer's vehicle approached the disputant's on the roadway in the lane just next to his and the two passed each other. [ 22 ] In cross-examination, the Officer agreed his view of that part of the device where it was held would be obstructed. The notorious nature of cell phones in such common use today coupled with what the Officer saw supports a common sense inference that the device seen held had telephone capabilities as testified by the Officer.

A prima facie case is made out on the evidence accepted by the Court. [ 23 ] There is also evidence from the Officer who, under cross-examination, was firm as to his familiarity with iPhones, and that he had seen a black cell phone, most specifically an iPhone in the console area. He could not say if he saw a distinguishing feature such as an apple on the device seen in the console.

There is no evidence before me that all iPhones have an apple motif or that such a motif would be seen on all iPhones irrespective of how such a phone may be placed in the console. [ 24 ] On a balance of probabilities, I am unable to come to a conclusion that because an apple motif was not seen on the device in the console, the Officer's assertion that he was familiar with iPhones, or that he saw one in the console area is untrue or even that a reasonable doubt is raised as to his assertion of having seen a device. [ 25 ] I accept his evidence that on the day of the violation he saw what he thought was an iPhone.

Significantly, Officer Ewert did not in the course of cross-examination embellish his evidence, chose to rely on notes he had made just ten minutes after service of the ticket, pointing out that his best recollection of the events which had occurred some 12 months before the date he was testifying were his notes. [ 26 ] I am unable to agree with the defence position that the Officer's inability to provide any distinguishing feature on the device he saw is indicative of officer elusiveness under cross-examination. [ 27 ] It would be an impossible burden to expect officers to recall all of the details of each incident which result in the issuance of a traffic ticket. [ 28 ] Viewed in an objective light, his unembellished testimony of observations made as he passed another vehicle on the roadway, the inability to point to a specific feature of a device which was held to the driver's ear into which the driver was speaking, or even of a device seen sitting within a vehicle console area, is not unreasonable.

Some 12 months have passed since the incident. I find no merit in the argument that the Officer was being elusive on the stand when he chose to rely on his notes as the best recollection of what he witnessed on the day of the violation. [ 29 ] 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 hasprivacy interests or perhaps even a search of the vehicle in situations where the device has been placed out of sight. [30] The practical reality is that the electronic device prohibition provisions contained in the Motor Vehicle Act, that is, use whiledriving, are by the very nature of the offence enforced by way of traffic stops conducted roadside.

A more thorough investigation intothe type of device or specific distinguishing features will result in privacy incursions not normally envisaged in a traffic stop. It issomewhat a dubious notion to envisage that the lawmakers intended a search of the vehicle in which a cell phone is allegedly being usedwhen an individual is seen speaking into a hand-held device while driving. There is also the issue of the practicalities of conductingprolonged investigations roadside every time a violator is stopped roadside. [31] 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 therewas no proof beyond a reasonable doubt that a cell phone is a wireless communication device and where defence had argued that thedevice could have been a toy. The officer there had testified that he had seen the accused talking while holding what he said was a cellphone in his hand up to his ear and when stopped roadside, a flip phone was seen in the vehicle accessible to the driver. Nodistinguishing 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? The appeal was dismissed. [32] In the case at hand, when the Officer was asked if the driver could possibly be holding a GPS or an MP3 player or an iPod, heanswered that was possible adding to the initial GPS query that it would be odd for him to be speaking to a GPS.

Then when asked if hewas certain that the disputant was not speaking into a voice recorder, he answered he could not be certain and a voice recorder is anelectronic device. It was then put to him by counsel specifically that the driver was not speaking to a cell phone, the Officer respondedfirmly that in his professional opinion, the driver was speaking on a cell phone which was held in his hand.

Counsel then put to him thathe had testified to no features distinguishing the device as a cell phone, his response was he could only rely on notes made thenreiterating that his evidence was that at a slow speed he had observed the driver seated in the courtroom speaking into a cell device heldat the side of his head and that he had seen an iPhone in the console when the vehicle was stopped. [33] It is the submission of the defence that the Crown, having conceded that the driver could have been using a voice recorder, areasonable doubt is raised to the charge of using an electronic device, as a voice recorder is not an electronic device. [34] On the issue of whether the Crown has proven its case beyond a reasonable doubt, I am guided by R. v.

W. (D.), (SCC), [1991] S.C.J. No. 26.

No evidence having been presented by the defence, the issue is whether on the basis of evidenceaccepted by me the Crown has discharged its burden of proving that the disputant was using an electronic device contrary to s. 214.2(1)beyond a reasonable doubt. [35] Speculative questions directed at the Crown witness as to possibilities without something more tangible cannot by themselvescarry more weight than the other evidence provided by the Officer as to what he saw. [36] All of the evidence before the Court must be considered together and not individual pieces of evidence in isolation as to thepossibilities of a situation. [37] In R. v.

Lifchus, (SCC), [1997] 3 S.C.R. 320 the Court said reasonable doubt must be based on reason andcommon sense as well as logically connected to all of the evidence heard or the absence of evidence. The Court went on further to saythat it would be virtually impossible to prove anything to an absolute certainty and such a standard is impossibly high. [38] Having regard to the possibilities put to the Officer, the driver's actions were not consistent with the use of a GPS, MP3 or iPodas he was seen speaking.

If indeed he was recording his voice as suggested on a voice recorder, it appears only logical that the devicewill be held closer to his mouth consistent with facilitating such recording and not as seen by the officer speaking with the device held tothe side of the head. The device here was held in a manner consistent with the use of a cell phone.

Additionally, it would be mostunusual for someone to be driving around recording his voice on a recorder as such an action would, as Justice Ready in Gill, supra,opined draw unwanted attention from the police. [39] The defence position requires the Court to disregard the logical and common sense inference that may be drawn from theOfficer's evidence of what he saw and noted as he approached passing the disputant. No evidence to the contrary was presented bydefence. [40] On the basis of evidence accepted by me, I find that the disputant was holding a cell phone.

There is no need to decide if avoice recorder is an electronic device as envisaged by the Act. [41] However, for completeness as the argument has been raised, I must say I find myself unable to agree with the defence assertionbeing mindful of all the devices mentioned in the Act and Regulations such as cell device, GPS, as well as a hand-held electronic device,the purpose of which is to process or compute data and more particularly a hand-held audio player, it is difficult to envisage how a hand-held voice recorder used to make a voice recording could possibly fall outside the spirit and intention of the provisions being consideredhere.

Such an

interpretation would frustrate the law which is targeted at avoiding distracted driving whilst in control of a motor vehicle. [42] The proposition that a voice recorder is not an electronic device is by itself a highly dubious one, to say the least. A recorder isdefined in the Oxford Advanced Learners Dictionary, as a machine for recording sound or picture. To the common reasonable man, avoice recorder is an electronic device in the same manner as is a radio, tape recorder, or a Game Boy machine. Recording your voice ona voice recorder while driving is no less distracting than holding a cell phone in a manner in which it may be used while driving.

[ 43 ] I find the Crown has proven its case beyond a reasonable doubt and I find Mr. Schull guilty of using an electronic device while driving. [ 44 ] That now leaves me to deal with the fine amount. Anything from you, Officer Ewert on fine? I think you should go first so that Mr. Ross has an opportunity to respond at the same time. [ 45 ] THE CORPORAL: With regards to the fine, Your Worship, Crown will just go with the fine amount as on the face of the ticket. [ 46 ] THE COURT: Mr. Ross? [ 47 ] MR. ROSS: Your Worship, we were wondering if a reduction would still be in order. In this case, Mr.

Schull did raise some issues that are new to the Province as far as use of electronic devices goes. [ 48 ] MR. ROSS: So we were hoping that -- [ 49 ] THE COURT: I enjoyed reading all those Ontario cases. I have a question for you. There is discretion under the provisions of the Offence Act which in this situation would require a discussion of means, there being no guilty plea. Is there anything about means that you think I should know, Mr. Ross? [ 50 ] MR. ROSS: There are no issues on means, Your Worship. [ 51 ] THE COURT: Then the fine will be $167.00. [ 52 ] MR.

ROSS: With 30 days to pay, Your Worship? [ 53 ] THE COURT: I can give you longer if you want. [ 54 ] MR. ROSS: 30 days should be sufficient. [ 55 ] THE COURT: Okay, 30th May, 2013. Thank you. You both have a good day. Thank you, Mr. Ross. (ORAL REASONS FOR JUDGMENT CONCLUDED)