R. v. Bari, 2019 ONCJ 827

ONTARIO COURT OF JUSTICE CITATION: R. v. Bari, 2019 ONCJ 827 DATE: November 4, 2019 COURT FILE No.: Toronto 4860 6906152Z BETWEEN: HER MAJESTY THE QUEEN — AND — FAIZAN BARI Before Justice of the Peace Roger Rodrigues Heard on October 1, 2019 Oral Judgment and Written Reasons released on November 4, 2019 Mr. I. Silvanovich......................................................... Representative for the Prosecution Mr. T. Crisp………………………………………………………….Agent for the Defendant JUSTICE OF THE PEACE ROGER RODRIGUES: Introduction 1 .

Faizan Bari (the “defendant”) was charged at 4:33 p.m. on March 27, 2018 for driving with a hand-held communication device. The evidence before the court comes only from Police Constable Zebrowski (“Officer Zebrowski”) of the Toronto Police Service (“TPS”). The defendant elected not to give evidence in his defence . 2 . As there was insufficient time remaining in the assigned tier, and with the consent of the parties, I adjourned the matter to November 4, 2019 to provide the within reasons and, upon release of my reasons, if necessary, to accord the parties an opportunity to speak to penalty. The Legislation 3 .

Subsection 78.1(1) of the Highway Traffic Act , R.S.O. 1990, c. H.8 , as amended, ("the HTA "), states: 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 tele​phone communications, electronic data, mail or text mes​sages. 4 . Subsection 78.1(7) of the HTA provides, in part, that the Minister of Transporta​tion may make regulations prescribing devices

for purposes of subsection 78.1(1) . 5 . While there is no definition of a hand-held wireless communication device or prescribed devices in the HTA or the Regulation, in Regina v. Pizzurro , [2013] O.J. No. 4299 (Ont. C.A.) , the Court of Appeal for Ontario provided the following instruction in connection with the types of devices included under subsection 78.1(1) of the HTA . At paragraph 8 the Court stated:

Section 78.1(1) applies to two kinds of devices: hand-held wireless communication devices (that is, cell phones) and other devices prescribed by regulation.

Section 78.1(7) gives the Minister the power to make regulations prescribing devices for the purposes of s. 78.1(1) . 6 . As such, I find a cell phone is a "hand-held wireless communication device" as contemplated by subsection 78.1(1) of the HTA . The Issues 7 . At the conclusion of the evidence and submissions, and as conceded by the defence , there is no dispute as to the date, time, place, location, Municipality, identity of the defendant and that the defendant was driving a motor vehicle on a highway.

Accordingly, I am satisfied that these elements of the actus reus of the alleged offence have been established beyond a reasonable doubt. As well, it appeared it was also not disputed the defendant was holding something, perhaps an iPod, in his left hand during the material time; however, this will be discussed further below. 9. There are two remaining issues. First, whether the defendant was holding a cell phone in his left hand during the material time and the prosecution must prove this remaining issue to the standard of proof beyond a reasonable doubt.

The defendant is presumed innocent until proven guilty. 10. Second, were there significant omissions from Officer Zebrowski’s notes so that I should exclude his testimony in that regard? I will deal with this issue first, below. The Evidence 10. The relevant evidence may be summarized as follows. 11. Officer Zebrowski testified with the assistance of his notes to refresh his memory; he stated he had an independent recollection of the events which transpired on March 27, 2018 at approximately 4:33 p.m. On that date he was on foot patrol on Lower Jarvis Street at the Esplanade.

He was under a roof overhang outside St. Lawrence Market monitoring the southbound “bumper-to-bumper” traffic. 12. It was a raining on and off throughout the day. During the material time the rain was described as “a mist.” From a distance of six-and-a-half metres, Officer Zebrowski observed a Toyota Matrix (the “vehicle”) stopped for a red light at The Esplanade and in the southbound curb lane of Lower Jarvis Street. He approached the vehicle via the passenger side and looked into the vehicle through the passenger side window.

The driver’s hands were not on the steering wheel, rather the driver was holding a white iPhone in his left hand and was “tapping” the phone with his right thumb.

Officer Zebrowski added the phone was in “text mode” and further testified he is “familiar with what the texting app looks like.” He testified his observations were made as he was “inches” from the vehicle and about “one metre” from the driver; the only obstruction being the passenger side window and he was able to see the driver and device “directly.” He added he “was not mistaken” about the type of device he observed, and volunteered the device “can receive and transmit electronic data.” 13.

Officer Zebrowski further testified the driver was “definitely in a conversation” as he observed “text bubbles” on the device. He opined the device was an iPhone as he observed “a circular hole button” at the bottom of the device, a “speaker button” on top and a “dot” for a camera, leading him to believe the device was an iPhone, not and android device.

14. Officer Zebrowski then knocked on the driver’s side window, informed the defendant why he was being stopped and asked him to park further down the street. Officer Zebrowski never lost sight of the vehicle and the defendant was asked for, and produced, his valid Ontario driver’s licence, ownership and insurance. The defendant was cooperative and did not indicate there was an emergency. 15. During cross-examination, Officer Zebrowski testified the rain did not interfere with his ability to make the stated observations.

When questioned about his opinion the device at issue was an iPhone, Officer Zebrowski testified he owned an iPhone in the past and “used to text people.” He added he was able to observe “two colours of bubbles” on the defendant’s device, the “text input” and a “keyboard” at the bottom of the device. He clarified the “speaker” he mentioned during direct-examination referred to the “speaker slit” on the device that is “put to the ear.” 16. Officer Zebrowski testified he is familiar with other Apple products.

He was asked about the “iPod Touch” and stated that device does not have “cellular capability.” When asked if the iPod Touch has a “striking resemblance” to the iPhone, he testified the former “is thinner”, “does not have round corners”, “does not have the same camera capability” and “does not have the fingerprint reader.” He was allegedly able to identify the fingerprint reader on the defendant’s device as “it has edging around it.” Officer Zebrowski further testified the two devices are “very close, but different” and added the circle at the bottom of the iPhone is a “reader” and has a “different feel.” Analysis

i) Should portions of Officer Zebrowski’s testimony be excluded, given the omissions in his notes? 17. In connection with Officer Zebrowski’s notes, which were not made an exhibit at trial, it was not disputed the extent of same states the defendant was observed holding a white iPhone in his left hand and was tapping the device with his right hand.

As the defendant’s agent submitted, there is nothing in the notes about a print reading button, speaker, other details about the device and what was allegedly observed by Officer Zebrowski, such as “text bubbles” and “keyboard” as was brought out during direct-examination. 18.

The defendant’s agent submitted, while Officer Zebrowski may have an independent recollection of what transpired during the material time, the additional details only came out at trial, over one year later, and, as such, we have a “disclosure problem.” Defendant’s agent submitted all observations “must” be in the notes in order to accord the defendant a proper ability to prepare for trial or to decide if he wishes to plead guilty.

The defendant’s agent further submitted, in light of the stated omissions from the officer’s notes, which the defence submitted I should exclude, and given Officer Zebrowski’s concession an iPod Touch and an iPhone are “strikingly similar”, based on the remaining evidence I should be left with a reasonable doubt and dismiss the charge. 19. In support of his submissions, the agent for the defendant relied on two decisions by Duncan J.: R. v. Zack [1999] O.J. No. 5747 and R. v. Golubentsev , [2007] O.J. No. 4608 .

In Zack , at paragraph 6, Duncan J. states: The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made.

In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made. 20. The defence’s argument "If it is not in the notes, then it didn't happen" flows from the above comments in the Zack decision, which were for some time misunderstood.

Indeed, Duncan J. himself clarified his position in Zack in his later decision, Golubentsev, as follows: My own decision in R. v. Zack [ supra ] is often relied in support of an argument to the effect, "if it's not in the notes, it didn't happen. That is not what Zack stands for. Rather, in that case, I intended to convey the idea that police officers could not withhold disclosure of crucial evidence on important points by saying "I didn't note it because I would remember it." Zack is a case about disclosure, not note-taking... [at paragraph 30]

21. Courts have frequently confirmed the principle that an officer's notes are merely testimonial aids and not evidence. Officers areexpected to have an independent recollection of the events they are testifying about, as was the case here, and the notes are there to assistwith specific details.

To suggest that the failure to make a notebook entry on something, particularly on something like routine procedureor practice, or, as in this case, the particulars of details going to the reasons why the officer formed the conclusion a device was aniPhone versus, perhaps, an iPod or an android, would necessarily require the trier-of-fact to conclude that the event did not occur andwould, in essence, eliminate the need for an officer to have an independent recollection and result in the notes becoming the evidence. 22.

Moreover, to require that “all observations must be in the notes”, as sub​mitted by the defence in this case, would place anunchecked and impossible burden on officers to indicate, in their notes, sufficient details to address most, if not all, possible questions putto them on the witness stand—failing which, the decision-maker could deem certain material events did not occur.

In my view, commonsense dictates that investigating officers should record the specific details that go to the heart of the case, perhaps addressing theessential elements of the offence, so the defendant knows, should she/he decide to proceed to trial, the case they have to meet. 23. I would not describe the missing references here as failing to give the defendant sufficient detail so as to render him sufficientlyunaware of the case he would have to meet, were he to decide to go to trial as he did. The details provided were adequate.

OfficerZebrowski’s notes indicated, in part, he observed the defendant, while driving a motor vehicle on a highway, holding a white iPhone inhis left hand, while tapping the said device with his right hand. Based on the notes, the defendant was provided with more than adequatenotice of the case he had to meet. Officer Zebrowski was not required to note every single thing he observed. For the reasons stated, thisis an unrealistic expectation and burden.

When the missing detail, however, is an event/observation, which relates to an essential elementof the offence, the lack of a note may very well impact on the credibility of the officer's recollection of the event in appropriate cases.For the reasons already stated, that is not the case here. 24. Turning specifically to the issue of disclosure, vis-à-vis missing details in an officer’s notes, I adopt the position of JusticeDurno of the Superior Court of Justice who stated, at paragraph 121 of R. v. Machado, 2010 ONSC 277 , [2010] O.J. No. 387(Ont.

S.C.J.),: While officers' notes are provided as part of disclosure, there is no law that I am aware of that an officer must record everything he or shedid or saw in their notebook to comply with the Crown's disclosure obligation. While some have attempted to elevate the judgment in R.v. Zack [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes that it did not occur, that is notwhat the judgment says. Indeed there are numerous authorities where events or observations that are noted have been accepted.

R. v.Thompson (2000), (ON CA), 151 C.C.C. (3d) 339, Ontario Court of Appeal, R. v. Bennett [2005] O.J. No. 4035,S.C.J. 25. In the next paragraph, Justice Durno went on to say that he agreed with the comments of Justice Garton, in paragraphs 24 and 25of R. v. Antoniak, [2007] O.J. No. 4816 (Ont. S.C.J.), where she stated: [24] It should be remembered that an Officer's notes are not evidence, but are merely a testimonial aid. Trial judges routinely tell officerson the witness stand that they may use their notes to refresh their memory and that they must also have an independent recollection of theevents.

To elevate the absence of a notation to a mandatory finding that the event did not occur, would eliminate the officer's independentrecollection from the equation. The notes would become the evidence. [25] The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness' testimony mustbe determined by the trier of fact on a case by case basis. ii) Has the prosecution proved, beyond a reasonable doubt, the defendant was holding a cell phone in his left hand duringthe material time? 26.

Officer Zebrowski’s testimony, going to the nature of the device in the defendant’s hand, is lay or non-expert opinion and,further, an opinion is an inference drawn from an observation. While this non-expert opinion evidence is admissible under the 'layopinion evidence rule', it must, nonetheless, be credible and reliable and, in the end, the the weight to be assigned to such evidence fallswithin the jurisdiction of the trier of fact. I admitted Officer Zebrowski’s non-expert opinion, which was the only evidence before me,that the device he observed in the defendant's left hand was an iPhone-type cell phone.

I must now determine the weight to assign to hislay opinion, based upon the totality of the evidence presented, including the circumstances surrounding the officer's observations. Inother words, I must determine how believable and how informative I consider the evidence to be, as a matter of human experience and,

like any opinion evidence, there must be some basis for the opinion before it can be given any weight. 27. As stated above, Officer Zebrowski’s non-expert opinion was that the device he observed in the defendant's left hand was a white cell phone, and in particular an iPhone. Officer Zebrowski initially observed the device in the defendant’s hand from a distance of about one metre through the vehicle’s passenger side window. The glass and moisture from the rain did not obstruct his direct view.

Officer Zebrowski testified the defendant’s hands were not on the steering wheel, rather the defendant was holding the white iPhone in his left hand and was “tapping” the phone with his right thumb. Officer Zebrowski added the phone was in “text mode” and further testified he is “familiar with what the texting app looks like.” Officer Zebrowski further testified the driver was “definitely in a conversation” as he observed “text bubbles” and a “keyboard” on the device.

He opined the device was an iPhone as he owned an iPhone in the past, he observed “a circular hole button” at the bottom of the device, a “speaker button” on top and a “dot” for a camera, leading him to believe the device was an iPhone, not and android device. 28. Unlike other cases which come before this court, the officer in the instant case, who is a trained observer, provided very extensive detail, as outlined above, going to why he opined the type of device he observed in the defendant’s left hand was a cell phone and, in particular, an iPhone.

At this point, I should state I do not agree with the defence’s position Officer Zebrowski’s conceded an iPod Touch and an iPhone are “strikingly similar.” To the contrary, the witness stated, in no uncertain terms, the iPod Touch “is thinner”, “does not have round corners”, “does not have the same camera capability”, “does not have the fingerprint reader”, the two devices are “very close, but different” and, further, the circle at the bottom of the iPhone is a “reader” and has a “different feel.” 29. I take guidance from R. v. Bada , 2018 O.J.

No. 4190 , a case involving the same charge and where the level of detail provided by the officer was significantly thinner than that in the instant case, and yet, nonetheless, Justice O’Marra states, at paragraph 15, in part, as follows: But, I have to query: How much more detail did the court require when the police officer testified that he observed a driver with a cell phone held to his/her ear? Every day I drive and I see people on cell phones. I could not for the life of me be able to tell you what are the particular details of a cell phone. I just see an object held to someone's ear driving a car. 30.

At paragraph 16, in dismissing the defendant’s appeal, Justice O’Marra relies, in part, on Justice Schreck’s pronouncement at paragraphs 104 and 105 in R. v. Tesla , [2016] O.J. No. 1914 : 30. With respect to the verdict being unreasonable, the submission that is made is that there are -- were no details given with respect to the cell phone that was observed, such as what colour it was or whether it was a flip phone and the like and the appellant relies, in particular, on the Justice of the Peace's own recognition that the evidence in this case was, as she described it, sparse.

I believe it was sparse, but that is not really the issue. The issue is whether or not, based on the evidence that was heard, it was open for the Justice of the Peace to find that the device was a cell phone. It may well be that there could have been more evidence, but I cannot say that in the circumstances it was not open to her to make the finding that it was a cell phone, such that I would be entitled to interfere with the finding on appellant review. 31. As always, the prosecution bears the onus of proving all of the elements of the actus reus of the offence, beyond a reasonable doubt.

In this connection, the only issue remaining to be determined is has the prosecution established, beyond a reasonable doubt, that the object Officer Zebrowski observed in the defendant’s left hand at the material time, was a cell phone.

For the reasons already stated, and based upon the entirety of the evidence presented, I find Officer Zebrowski’s testimony, the only evidence before me, entirely credible and sufficiently reliable so that I am able to assign it sufficient weight to say the prosecution has discharged its burden and proved, beyond a reasonable doubt, the device at issue in the defendant’s left hand during the material time was a cell phone. 32.

Officer Zebrowski’s evidence, provided during direct-examination, was sworn, uncontradicted by any other evidence before me, internally consistent and provided in a spontaneous and forthright fashion. He testified he initially “directly” observed the device in the defendant’s left hand from a distance of about one metre away through the vehicle’s passenger side window and the glass and moisture from the rain did not obstruct his view.

Officer Zebrowski added the defendant’s hands were not on the steering wheel, rather the defendant was holding the white iPhone in his left hand and was “tapping” the phone with his right thumb. Officer Zebrowski observed the phone to be in “text mode” and further testified he is “familiar with what the texting app looks like.” Officer Zebrowski further testified the driver was “definitely in a conversation” as he observed “text bubbles” on the device.

He opined the device was an iPhone as he observed “a circular hole button” at the bottom of the device, a “speaker button” on top and a “dot” for a camera, leading him to believe the device was an iPhone, not and android device. He testified he owned an iPhone in the past and “used to text people.” Officer Zebrowski provided additional details about his observation, which led him to opine the device was a cell phone. He testified he was able to observe “two colours of bubbles” on the defendant’s device, the “text input” and a “keyboard” at the bottom of the device.

During cross-examination, he clarified the “speaker” he mentioned during direct-examination referred to the “speaker slit” on the device that is “put to the ear.” In my view, Officer Zebrowski also provided ample, convincing and uncontradicted testimony going to why he

formed the opinion the device observed in the defendant’s left hand was an iPhone and not an iPod Touch, as suggested to him by the defence. 33. The defence was accorded an unimpeded opportunity to cross-examine Officer Zebrowski, yet he maintained his steadfast belief the device observed was a cell phone and, in particular, and iPhone. His testimony remained unshaken and internally consistent throughout and, from my observation, in answering questions put to him by the defence, he did not hesitate to formulate answers favourable to, and consistent with, his previously stated observations. 34.

When I consider the totality of Officer Zebrowski’s testimony objectively, I find the prosecution has proved, beyond a reasonable doubt, that the device held by the defendant was a cell phone and, in particular, an iPhone. ORDER: 35. The defendant is therefore found guilty of the offence of "drive motor vehicle while operating a handheld communication device”, contrary to

section 78.1(1) of the HTA and a conviction is registered. Released: November 4, 2019. Signed: Justice of the Peace Roger Rodrigues