R. v. Thandi Date:, 2013 BCPC 397

Citation: R. v. Thandi Date: 20130910 2013 BCPC 0397 File No: AH74275019-1 Registry: Victoria IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. Bhavjit THANDII REASONS FOR JUDGMENT OF JUDICIAL JUSTICE H. W. GORDON

Appearing for the Crown : Cst B. LeBlanc Appearing on his own behalf: Bhavjit Thandi Place of Hearing: Victoria , B.C. Date of Hearing: January 10, 2013 Date of Judgment: September 10, 2013 Introduction [ 1 ] Mr. Thandi was charged on July 31, 2012 with driving on a highway while using an electronic device, contrary to

section 214.2(1) of the Motor Vehicle Act . His defence is that it was his wallet that was in his right hand and not a cell phone. His means of demonstrating his innocence is somewhat inventive. Legislation [ 2 ] Although nothing in this case turns on the wording of the legislation, for completeness

section 214.2(1) reads as follows: Prohibition against use of electronic device while driving a. 214.2

(1) A person must not use an electronic device while driving or operating a motor vehicle on a highway. The Evidence [ 3 ] Cst LeBlanc was the first to give evidence. He is an experienced Victoria Police Department police officer who has been assigned to traffic enforcement with the Capital Regional District Integrated Road Safety Unit (IRSU) for at least 3 years.

He is trained in the use of laser and radar and is a breath analysis technician and uses these skills daily in his traffic enforcement duties. [ 4 ] He gave evidence that on July 31, 2012, IRSU was conducting a cell phone / seatbelt monitoring operation on Quadra Street at the southern end of Tuxedo Drive in Saanich. Quadra Street runs north and south and is a four lane undivided thoroughfare, two lanes in each direction. [ 5 ] The officers were using a 60X Pentax spotting scope on a tripod to view northbound traffic on Quadra Street. The Pentax was fitted with a polarized lens.

The scope was set at 20X power for this operation. The weather was sunny and clear. [ 6 ] At about 3:18 pm, using the Pentax spotting scope at 20X magnification, Cst LeBlanc observed a black Jaguar approaching northbound in the curb lane at about 50 kmh. In the vehicle were two males in the front seats. The driver had his right hand to his right ear and was holding in his fingers a black object that appeared to him to be a cell phone. He could see a shiny surface and blue light shining from the surface of the object. The driver’s lips were moving. He says he made this observation for about 8 seconds.

As he signaled the driver to stop, he noticed the driver bring his right hand down sharply. [ 7 ] Cst LeBlanc stated that when he approached the driver’s window and told him he was being stopped for using an electronic device while driving, the driver did not say anything and he appeared to have an expression of resignation on his face. The driver was identified by his licence as the Disputant, Mr. Thandi. After a voir dire , I admitted into evidence as a spontaneous utterance a statement Cst LeBlanc said Mr. Thandi made to him at the driver’s window when he returned to serve the ticket on him. Mr.

Thandi told Cst LeBlanc that it was not his cell he was holding but his wallet in front of him and that he was putting his gym card into it. The conversation was much longer than this, but that was the gist of the statement. Mr. Thandi showed the wallet to the officer. Mr. Thandi agreed with the officer’s testimony of the conversation. Cst LeBlanc says the wallet was not shiny nor did it have a reflective surface, as the object he saw did. [ 8 ] A few minutes after Cst LeBlanc completed the ticket and served it on Mr.

Thandi, and as Cst LeBlanc was writing up his notes of the incident, he became aware that another officer on the team in the same location, Cst Whitbread, had stopped what appeared to be the same vehicle with the same two males in the front. He walked up to the vehicle and could hear a dialogue similar to that as described in the voir dire above between the driver and Cst Whitbread. His conclusion was that Mr. Thandi had set up a mock drive-by to discredit the basis of the ticket Cst LeBlanc had issued him a few minutes before. He also became aware that Mr.

Thandi was recording the conversation. [ 9 ] Cst Whitbread then gave evidence. He is a West Shore RCMP officer also assigned to IRSU. He had been at that time an officer nearly 6 years. [ 10 ] He testified that using the same Pentax spotting scope, he noted a black vehicle approaching him northbound on Quadra Street in the curb lane. In it were two males. The driver was holding a black object cupped in his right hand. He held it to his right ear, pulled it away and then put it back to his ear. He could see the driver’s lips moving.

Cst Whitbread suspected the driver was holding a cell phone in his hand. [ 11 ] Cst Whitbread signaled the driver to pull to stop. As the driver did so, he rolled down his window, held his wallet out to the officer and said, “Look, it’s my wallet. The other officer got it wrong”. The driver said he was coming from the gym and was very upset and was berating the other officer for issuing him the ticket. Cst Whitbread noted the wallet was black and grey, small and could be held in a portion of his hand. He was satisfied that what he had observed in Mr. Thandi’s hand was his wallet.

He also was aware from the conversation that it was being videoed and recorded on a cell phone by the passenger.

[ 12 ] Mr. Thandi then gave evidence. He explained he had recorded the second incident to be able to show that an officer could not tell the difference between a cell phone and a wallet. He also said he had an Iphone and it did not have a blue light or a light reflecting on its face. Although I did not enter a copy of the video on the phone into evidence as it had not been copied, I viewed it with Mr. Thandi and Cst LeBlanc. It did not assist me in determining what the view of the first incident might have been from the spotting scope. [ 13 ] Mr.

Thandi also put into evidence a copy his billing from his cell phone provider for the period. Both were in the name of his father, but he says one of those phones is for his use. The billing for the number attached to the cell phone he says he uses and had at the time of the stop showed no calls were recorded for the time period in issue. The other billing, for the phone he says was the one his father used, showed 4 calls in or about the time of the stop, although all were short. Apparently there were one or two other cell phones that Mr.

Thandi used from time to time, but he says he was not in possession of them at that time. I accept that Mr. Thandi’s primary cell phone is the one for which he produced a billing. Analysis [ 14 ] As I see it, the real issue is whose version of what took place is the correct one. What took place is not a matter of a difference in appreciating or recollecting what took place. It is not an issue of whether Mr. Thandi had a cell phone or a wallet to his ear. It is an issue of whether Mr.

Thandi had his right hand to his right ear, as Cst LeBlanc says he clearly saw, or he had his right hand in front of him the whole time, as Mr. Thandi says he did. Everything else falls from that finding. It is an issue of credibility. [ 15 ] I accept the evidence of Cst LeBlanc in its entirety. Where there is a difference in the testimony in a crucial respect between Cst LeBlanc and Mr. Thandi, I accept the evidence of the former. [ 16 ] Cst LeBlanc was at the intersection of Quadra and Tuxedo for the specific purpose of watching for seatbelt and electronic device infractions.

He had a spotting scope which magnified the view by 20 times. There was something that caught his attention when observing the vehicle Mr. Thandi was driving. In my view, an experienced traffic enforcement police officer would neither mistake nor misinterpret what he was seeing between a hand at the right ear and a hand being held out in front of the driver and the lips of the driver moving, at what would have been at most the equivalent of 20 to 25 metres because of the scope. Further, Mr.

Thandi only made his claim that he was holding his wallet and not a cell phone when Cst LeBlanc returned to his vehicle after writing the ticket and not immediately when initially stopped. [ 17 ] Further, although Mr.

Thandi claimed he was holding his wallet in front of him, when he returned a few minutes later for his reenactment to demonstrate that a wallet could be mistaken for a cell phone, he was holding the wallet to his right ear, as one would do when talking on the phone, and not out in front of him as he said he was doing and how one would expect him to reenact the use of a wallet instead of a cell phone. [ 18 ] Finally, although this of lesser consideration in my decision than what I have recited above, I would estimate that I have heard the same explanation from male drivers at least a dozen times in the past couple of years and am somewhat skeptical when I hear this defence from male drivers who claim they were holding their wallet to their ear.

It is a practice that holds no logic. Decision [ 19 ] For those reasons, I accept Cst LeBlanc’s version of events and not that of Mr. Thandi. There are some parts of the evidence that would be consistent with both version of events, but taking the evidence on the whole and drawing logical inferences from it, I am satisfied beyond a reasonable doubt that Mr. Thandi was using his cell phone when sighted by Cst LeBlanc. Therefore I find him guilty as charged. The fine will be the ticketed amount. __________________________________- H.W. Gordon Judicial Justice