R. v. Whalen, 2014 ONCJ 233

ONTARIO COURT OF JUSTICE DATE: 2014·05·06 COURT FILE No.: Regional Municipality of Waterloo Appeal 1796417B Citation: R. v. Whalen , 2014 ONCJ 233 IN THE MATTER OF an appeal under clause 116(2) (

a) of the Provincial Offences Act, R.S.O. 1990, c. P.33, as amended; BETWEEN: HER MAJESTY THE QUEEN Respondent on Appeal — AND — SUZANNE WHALEN Appellant on Appeal Before Justice M. J. Epstein Heard on February 27, 2014 Reasons for Judgment released on May 6, 2014 Ms. L. Clayton ............................................................................... counsel for the prosecution Mr. D. Morton, agent .......................................................... for the appellant Suzanne Whalen On appeal from a conviction by Justice of the Peace C. Anderson on October 23, 2013.

EPSTEIN J.: INTRODUCTION: [ 1 ] The Appellant appeals her conviction on a charge of driving with a hand-held communication device contrary to the provisions of s. 78.1(1) of the Highway Traffic Act . [ 2 ] The facts are not in dispute. On August 20, 2013 an officer of the Waterloo Regional Police Service was conducting cell phone enforcement in the City of Cambridge when he observed the Appellant operating her motor vehicle in the curb lane approaching his position. Her head was tilted significantly to her right and there was a cell phone between her right ear and shoulder.

Her lips were moving and she appeared to be talking into the phone. Both hands were on the steering wheel. The officer followed the Appellant and when he stopped her vehicle the cell phone was on the passenger side front seat of her vehicle. The issue is whether or not the Appellant was in contravention of s. 78.1(1) of the Highway Traffic Act when positioning the phone as she did in a manner that left both of her hands on the steering wheel. STATUTORY PROVISIONS: [ 3 ] The relevant provisions of the Ontario Highway Traffic Act , R.S.O. 1990 c. H.8 , are as follows: “ 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.

2009, c. 4, s. 2 . 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. 2009, c. 4, s. 2 . 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. 2009, c. 4, s. 2 . 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. 2009, c. 4, s. 2 . Same (5) Subsection (1) does not apply in respect of the use of a device to contact ambulance, police or fire department emergency services. 2009, c. 4, s. 2 . 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. 2009, c. 4, s. 2 . 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). 2009, c. 4, s. 2 . 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. 2009, c. 4, s. 2 .” [ 4 ] The pertinent provisions of Ontario Regulation 366/09 are as follows: “Hand-Held Devices … Exemption for pressing buttons 14.

(1) A person may drive a motor vehicle on a highway while pressing a button on a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio if the device is placed securely in or mounted to the motor vehicle so that it does not move while the vehicle is in motion and the driver can see it at a quick glance and easily reach it without adjusting his or her driving position. O. Reg. 366/09, s. 14 (1) .

(2) A person may drive a motor vehicle on a highway while pressing a button on a device that is worn on his or her head or hung over or placed inside his or her ear or is attached to his or her clothing and is linked to a hand-held wireless communication device to make, answer or end a cell phone call or to transmit or receive voice communication on a two-way radio or a hand microphone or portable radio. O. Reg. 366/09, s. 14 (2) .”

POSITION OF THE PARTIES: [5] The Appellant submits that she was not “holding” the device as defined in s. 78.1(1) of the Act and that, in any event, herconduct is saved by s. 78.1(3) in that she was using her cell phone in “hands-free mode”. She relies on R. v. Kazemi, 2013 ONCA 585, [2013] O.J. No. 4300, a decision of the Ontario Court of Appeal dealing with the meaning of “holding” as used in s. 78.1(1) ofthe Act. [6] The Respondent urges a purposive

interpretation of the

section and suggests that the type of conduct exhibited by theAppellant is exactly that which the

section was designed to prevent. ANALYSIS: [7] It is the primary position of the Appellant that she was not “holding” the device as defined in s. 78.1(1) and that it is notnecessary, therefore, to resort to the exception provided in s. 78.1(3) of the Act. It is the position of Mr. Morton that the recent Court ofAppeal decision in Kazemi is dispositive of the issue. [8] In Kazemi the defendant was stopped at a red light. Police observed her with a cell phone in her hand.

She claimed that thephone had fallen to the floor of the vehicle when she applied her brakes and that she had merely picked the phone up from the floor whenthe vehicle stopped.

In para. 3 of the judgment Goudge J.A. said: “The central issue on appeal is whether the respondent was ‘holding’ the cell phone for the purposes of s. 78.1(1).” [9] In Kazemi there was no issue that the appellant had the cell phone in her hands but rather the judgment focussed on whetherthe brief handling of the phone by the appellant as she retrieved it from the floor of her vehicle was sufficient to satisfy the “holding”requirement of the section. It had been argued on her behalf that the

section contemplated a sustained contact with the cell phone. [10] After pointing out that the statute did not define “holding”, Goudge J.A. went on to say at paras. 11-13: “11. The ordinary meaning of ‘holding’ a cell phone is having it in one’s hand. The New Shorter Oxford Dictionary, 1993 defines ‘tohold’ as ‘to have a grip on’ or ‘to support in or with the hands’. There is no suggestion that only if one has the cell phone in one’s handfor a sustained period of time is one holding the cell phone. 12. In my view, this

interpretation of ‘holding’ best ensures the attainment of the objective of the HTA, which is to protect those who usethe roads of Ontario: see R. v. Raham, 2010 ONCA 206, 99 O.R. (3d) 241, at para. 33. 13. This

interpretation also best serves the legislature’s purpose in enacting the provision in which ‘holding’ appears. Section 78(1) wasadded to the HTA 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 ascellphones while driving.

The goal is not to inconvenience people but to make our roads safer for them and for everyone else who sharesour roads. For safety’s sake, drivers 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. JamesBradley). [11] The court rejected an

interpretation of “holding” that required that there be a sustained physical holding as not according withthe ordinary meaning of the word. [12] It is my respectful view that Kazemi must be read in light of the sole issue to be determined, that is whether a brief handlingof the phone constituted “holding”. The decision does not purport to exhaustively define the word for all contexts. [13] The Canadian Oxford Dictionary, second edition, 2004 defines “hold” as: “Keep fast; grasp (esp. in the hands or arms).” It would appear by this definition that containing in the hands is but one method of “holding”.

In common parlance a violin is “held”under the chin and a cello between the knees. Items are “held” against the body by an arm. One “holds” the thong portion of a flip-flopsandal between one’s toes. I am satisfied that the definition of “holding” is sufficiently broad as to conclude that the Appellant was“holding” the cell phone between her ear and shoulder. [14] In paras. 9 and 10 of Kazemi the court approves of a purposive approach to statutory

interpretation: “9. The definitive formulation of the modern approach to statutory

interpretation is that of Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983), at p. 87: [T]oday there is only one principle or approach, namely, the words of

an Act are to be read in their entire context and in theirgrammatical and ordinary sense, harmoniously with the scheme of the Act, the object of the Act and the intentions of Parliament. 10. This principle is buttressed by s. 64(1) of the Legislation Act, 2006 S.O. 2006 c. 21, Sched. F. It reads: Rule of liberal

interpretation

(1) An Act shall be interpreted as being remedial and shall be given such fair, large and liberal

interpretation as best ensures the attainment of its objects.” [ 15 ] It is the clear intention of Parliament to protect those who use the roads of Ontario by prohibiting the use of cell phones except in an approved manner. It is my view that this objective is best attained by the more broad

interpretation of “holding” that I have suggested. [ 16 ] It is my view that this analysis is perhaps moot in any event since s. 78.1(1) makes it an offence to drive while “holding” or “using” a cell phone. It was clear from the officer’s evidence that the Appellant was “using” the phone when observed. [ 17 ] The issue then becomes whether the Appellant is exempt from liability by virtue of s. 78.1(3) which permits a person driving a motor vehicle to use a cell phone “in hands-free mode”. It is my view that “hands-free mode” in this age of digital technology does not simply mean “without hands”.

Rather, the term refers to a manufacturer’s designed adaptation which permits the cell phone to be used without being held by the operator and without physically entering data such as phone numbers. Most units (either portable or built into the car) are activated by the driver’s voice so the driver speaks and hears the caller’s voice through a speaker. [ 18 ] This

interpretation is consistent with s. 14(1) of the Regulations which permit a driver to press a button on a hand-held communication device to initiate or end cell phone calls provided that the device is securely mounted to the motor vehicle. Section 14(2) permits an operator to press a button on a device that is worn on the driver’s head or hung over or placed inside the driver’s ear or is attached to the driver’s clothing and is linked to a hand-held wireless communication device. [ 19 ] This

interpretation is entirely consistent with the legislature’s purpose in enacting this legislation. When the Countering Distracted Driving and Promoting Green Transportation Act, 2009, S.O. 2009 c.4 was introduced to the House on November 20, 2008 the Minister of Transportation said as follows: “We are simply asking drivers not to use hand-held wireless communication and electronic entertainment devices while driving. The use of hands-free wireless communications devices, such as an earpiece or Bluetooth set up to work with your cellphone or BlackBerry, will still be allowed.

GPS units mounted on a dashboard will still be permitted.” See: Ontario Legislative Assembly, Official Report of the Debates (Hansard), 39 th Parl., 1 st Sess., (20 November 2008)(Hon. James Bradley). [ 20 ] The evidence is clear that in this case the Appellant was not using a “hands-free” device, nor a device in “hands-free mode” as contemplated by the legislation. Her attention to driving was necessarily distracted in a manner not authorized by the statute.

She either initiated or received the call that she was on at the time she was seen by the officer by pressing a button on a device that was not secured to her car. She then placed the device between her shoulder and ear to continue with the call. When the call was ended she then had to use her hand to place the cell phone on the passenger seat where it was located by police. [ 21 ] It is my view that this is exactly the type of distraction sought to be eliminated by the legislation.

At trial the justice of the peace gave careful consideration to the intention of the legislature and concluded that the conduct of the Appellant was not saved by s. 78.1(3). I am in agreement. [ 22 ] The appeal is dismissed. Released: May 6, 2014 Signed: “Justice M. J. Epstein”