THE CITY OF TORONTO — v. —, 2020 ONCJ 615

CITATION : Toronto (City) v. Isse , 2020 ONCJ 615 DATE : December 16, 2020 COURT FILE No .: Toronto 4860 999 00 6993811Z ONTARIO COURT OF JUSTICE (Toronto Region) BETWEEN: THE CITY OF TORONTO — AND — ABDIRAHMAN ISSE Before Justice of the Peace Roger Rodrigues Heard on February 13, 2020 Written Reasons released on December 16, 2020 Oral Judgment on December 16, 2020 Ms. R. Raczkowski................................................................................... for the Prosecution Mr. A.

Blaha................................................................................................... for the Defendant JUSTICE OF THE PEACE R. RODRIGUES: Introduction 1 . Abdirahman Isse (the “defendant”) was charged on September 27, 2018 for driving while holding or using a hand-held communication device. The evidence before the court came from Police Constable Michael Thompson (“Officer Thompson”) of the Toronto Police Service. The defendant elected not to give evidence in his defence . 2 .

At the conclusion of the trial, and with the consent of the parties, I adjourned the matter to June 5, 2020 to provide the within reasons and, upon release of my reasons, if necessary, to accord the parties an opportunity to speak to penalty. In the intervening time, as a result of the Covid-19 pandemic , this matter, as with most other Provincial Offences Act proceedings, was further adjourned until December 16, 2020 . 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 telephone communications, electronic data, mail or text mes​sages. 4 . Subsection 78.1(7) of the HTA provides, in part, that the Minister of Transportation 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 applicable 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 there was 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. 9.

The remaining issue is whether the defendant was holding a cell phone in his right hand during the material time. The prosecution must prove this remaining issue to the standard of proof beyond a reasonable doubt and the defendant is presumed innocent until proven guilty. The Evidence 10. The relevant evidence may be summarized as follows. Officer Thompson’s Testimony 11. During examination-in-chief, Officer Thompson testified with the assistance of his notes to refresh his memory. He stated he had an independent recollection of the events, which transpired on September 27, 2018 at about 7:45 pm.

The notes were made on the date of the alleged offence and there have been no additions, alterations or deletions thereto. 12. On that date and time, Officer Thompson was travelling in a stealth police cruiser westbound in the curb lane of Fort York Boulevard, a two-lane highway, at Bathurst Street, in the City of Toronto. The defendant was proceeding westbound, in the left lane, of Fort York Boulevard, in front of the cruiser. Officer Thompson observed the defendant’s vehicle drifting several times to the right over the lane markings and then “jerking” back into its lane without signaling.

At one point, the wheels of the defendant’s vehicle crossed over into Officer Thompson’s lane. 13.

Upon taking a position side-by-side with the defendant’s vehicle, Officer Thompson observed, through the defendant’s front passenger window, the defendant, the sole passenger of the vehicle, “holding a large rectangular cell phone in his right hand, at face level, above the vehicle’s middle console.” Officer Thompson added the cell phone’s screen “was lit” and the defendant was “holding it slightly tilted to his face” and the defendant “was looking towards this cellular device in his right hand not forward through the

window.” As well, there was “what appeared to be a power cord attached to the bottom of the cell phone toward the console area.”Officer Thompson further testified it “was dark out” and the area was “artificially lit with street lighting” and his observations weremade while travelling at approximately forty kilometres per hour and over a “distance of view” of “150 to 200 metres.” 14.

Not losing sight of the defendant’s vehicle, Officer Thompson activated his vehicle’s emergency lights and stopped the vehicle.He approached the defendant’s vehicle and he observed a cellular device, which he “previously observed in the air in [the defendant’s]hand now attached to a holding device to the left of the steering wheel” with the power cord still attached to the device. OfficerThompson stated “it was the same cell.” Officer Thompson satisfied himself there was not an emergency allowing for the use of thedevice and advised the defendant of the reason for the stop.

At this point, Officer Thompson testified the defendant “immediately madean utterance offering an explanation and a conversation ensued.” The defendant was identified via a valid Ontario drivers licence. 15. During cross-examination, Officer Thompson conceded he did not know “the make or model” of the cellular device and he isnot “an expert”, but maintained it was “blatantly a cell phone” and “the screen was lit.” Then, Officer Thompson stated, “After hisutterance with me…no doubt it was a cell [phone]. I was absolutely satisfied.

One hundred percent satisfied based on my observation andcommunication with the defendant.” Officer Thompson repeated, later during cross-examination, that before he advised the defendant hewas being recorded, “We had a conversation. His utterance satisfied me it was a cell [phone]” and “the conversation after his utterancetook away all possible doubt it was a cell phone.” Officer Thompson offered to “play the in-car camera, if required” at this point,however, the cross-examination continued for a short while longer.

Further, during cross-examination, Officer Thompson testified thedevice observed appeared able to receive and transmit signals because “it was active and lit”, the “screen was lit” “and changing.” Aswell, the visual display of the device did not look like another type of device, such as a calculator, as suggested by the defence. OfficerThompson did not comment on the similarity of the device at issue to a “music device”, also suggested by the defence. Analysis The Prosecution’s Request to Recall Officer Thompson 16.

At the conclusion of the cross-examination, the prosecution requested the court’s permission to re-examine Officer Thompsonon the defendant’s utterance, which I declined with brief reasons. Upon reflection, my comments going to denying the prosecution’srequest based on the request amounting to case splitting were only partially complete and some elaboration is required.

In decidingwhether to allow the prosecution, at that stage of the trial, to call further evidence on the matter of the defendant’s utterance to OfficerThompson, the considerations are not essentially differently from those required relative to re-examination, and whether reply or rebuttalevidence should be permitted: D.J. Ferguson, Ontario Courtroom Procedure. Re-examination is generally limited to matters that firstcame out in cross-examination and which matters could not reasonably have been anticipated by the other side.

So too, reply evidenceshould properly be admissible only where the matter addressed arises out of the defence’s case, where it is not collateral and generallywhere the prosecution could not have foreseen it developing: R. v. G.(S.G)., (SCC), [1997] 2 S.C.R. 716. 17. So, this begs the question whether the matter of the defendant’s utterance to Officer Thompson, and the particulars thereof,could reasonably have been anticipated by the prosecution.

As already stated, during examination-in-chief Officer Thompson testified,when he advised the defendant of the reason for the stop, the defendant “immediately made an utterance offering an explanation and aconversation ensued.” The prosecutor chose not to question the witness further on the utterance and simply allowed the witness to go onto testify about road conditions, visibility, identity and other matters. The prosecution concluded by advising the court “Those are myquestions.” 18.

During cross-examination, I note that when the issue of the defendant’s utterance, and such being recorded, arose, the matter didnot arise specifically in relation to a defence question on that point, rather the testimony was volunteered by Officer Thompson as furtherjustification for his forming an opinion the device he initially observed in the defendant’s right hand was a cellular telephone. Clearly,the witness’s evidence on cross-examination is not collateral or is something new—indeed, the utterance first came to light duringexamination-in-chief and was simply not pursued by the prosecution.

It is further important to note the defendant was charged onSeptember 27, 2018, almost two-and-a-half years before the trial date. Officer Thompson, the prosecution’s sole witness, his notes andthe in-car camera video, which he testified was available for viewing, were all available to the prosecution for over two years. This iscertainly not a case where the evidence of the defendant’s utterance was not available to the prosecution before trial and, further, whereit could never have been anticipated that it might ever be needed.

The prosecution ought to have sought to admit the particulars of theutterance during examination-in-chief during a voir dire. 19. I accept the evidence is material to an issue that is properly part of the prosecution’s case. However, the prosecution must alsoexplain why the evidence was not led earlier and justify why, in this case, there should be a departure from the standard rules. The

prosecutor stated he was seeking to introduce the utterance after cross-examination because the defence suggested to Officer Thompsonthe device was something other than a cell phone—a calculator or a music device. It is inconceivable to me an experienced prosecutorwould not anticipate such a rudimentary question being put to the police witness.

The prosecution is required to prove in part, and beyonda reasonable doubt, the device held by the driver of a motor vehicle is a hand-held wireless communication device or other prescribeddevice that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages—this is an essentialelement of the offence. In my experience, most trials of this nature come down to whether the defendant was “holding” the device and/orwhether the device at issue was capable of receiving or transmitting telephone communications or some other device not so capable.

Itshould be noted the prosecutor decided not to call additional evidence, which I was prepared to allow, other than the utterance, going towhy the officer believed the device was a cellular phone and not another type of device. 20. I understand why the prosecution sought to introduce this evidence—in essence to reinforce Officer Thompson’s earliertestimony the device observed was a cellular phone. The prosecutor did not seek to recall the witness to explain ambiguities, qualifyadmissions or to put answers given in cross-examination into proper perspective—all permissible purposes of re-examination.

As such, Iconcluded it was not proper to recall the officer for the purpose stated by the prosecutor and for the reasons already stated. It is evidencethat ought to have been introduced in-chief because it is evidence that was in the possession of the prosecution for well over two years,its necessity for the prosecution’s case ought to have been anticipated, and the prosecution had, in fact, already adduced evidence on theutterance matter in chief. In my view, the prosecution’s request to recall the witness on the defendant’s utterance was inappropriate and Ideclined the prosecution’s request.

In analogous circumstances McIntyre J., speaking for a unanimous Supreme Court of Canada in R. v.Krause, (SCC), [1986] 2 S.C.R. 466, discusses, at paragraph 16, the limited circumstances under which, in that case theCrown, may be allowed to call rebuttal evidence at the conclusion of the defence case: The plaintiff or the Crown may be allowed to call evidence in rebuttal after completion of the defence case, where the defence has raisedsome new matter or defence which the Crown has had no opportunity to deal with and which the Crown or the plaintiff could notreasonably have anticipated.

But rebuttal will not be permitted regarding matters which merely confirm or reinforce earlier evidenceadduced in the Crown's case which could have been brought before the defence was made. It will be permitted only when it is necessaryto ensure that at the end of the day each party will have had an equal opportunity to hear and respond to the full submissions of the other.[Emphasis added] Was the Defendant Holding a Cellular Phone in his Hand During the Material Time? 21.

As stated, the sole remaining issue is whether the prosecution has proved, beyond a reasonable doubt, the defendant was holdinga cell phone in his right hand during the material time. It is not the defendant’s responsibility to demonstrate, establish, or prove hisinnocence or to explain away the allegations made against him. He is not required to establish he was not holding a cell phone whiledriving, nor is he required to explain the evidence presented by the prosecution. He is presumed to be innocent until proven guiltybeyond a reasonable doubt.

The prosecution bears this onus of proof beyond a reasonable doubt throughout the trial and the onus nevershifts. 22. The Supreme Court of Canada has provided guidance in connection with the principle of proof beyond a reasonable doubt inseveral cases. In R. v. Lifchus, (SCC), the Supreme Court held that the meaning of proof beyond a reasonable doubtwas as follows: "the standard of proof is higher than ... a balance of probabilities yet less than proof to an absolute certainty." In Lifchus,the Court further instructed a reasonable doubt is not an imaginary or frivolous doubt.

It must not be based upon sympathy or prejudice. Rather, it is based on reason and common sense. It is logically derived from the evidence or absence of evidence. In R. v. Starr (2000),2000 SCC 40 the Court further defined the reasonable doubt standard by explaining that it falls much closer to absolutecertainty than to proof on a balance of probabilities.

Here, considering the whole of the evidence presented, I find that the prosecutionhas failed to establish, beyond a reasonable doubt, the defendant was holding a cell-phone in his right hand, while driving the motorvehicle on a highway during the material time. 23. As the defendant did not testify, I only have Officer Thompson’s lay, or non-expert opinion, which, for the reasons to follow, Iam unable to find sufficiently reliable.

Office Thompson’s evidence was, while his and the defendant’s vehicles were in motion, at a rate of speed of forty kilometres per hour,and while Officer Thompson had a “distance of view” of “150 to 200 metres”, he observed the defendant “holding a large rectangularcell phone in his right hand, at face level, above the vehicle’s middle console.” Officer Thompson further observed the cell phone’sscreen “was lit” and the defendant was “holding it slightly tilted to his face” and the defendant “was looking towards this cellular devicein his right hand not forward through the window.” Officer Thompson also observed “what appeared to be a power cord attached to thebottom of the cell phone toward the console area.” While the area of observation was artificially lit, it “was dark out” according to thewitness.

24. Several factors militate against a finding Officer Thompson’s lay opinion evidence to be reliable as it relates to his initial observation of the defendant and his identification of the object in the defendant’s right hand. And at this point I have to say I listened to the audio recording of the proceedings several times to ensure I did not misapprehend the witness’s testimony his “distance of view” was “150 to 200 metres” prior to stopping the defendant’s vehicle, at which time he observed a cell phone attached to a holding device to the left of the steering wheel.

A Canadian Football League (“CFL”) field measures 110 yards, or approximately 100 metres, in length. As such, Officer Thompson testified his initial observations of the accused during the material time may have been over a distance of view equivalent to the length of two CFL fields. While Officer Thompson may be a trained observer, in my view, it stretches credulity beyond reason to believe, in the absence of an optical device for distance viewing such as binoculars, his initial observation of the defendant, as he testified, was even possible over such a vast distance.

This is especially so coupled with Officer Thompson’s testimony both vehicles were in motion, it was dark out and he was observing through the defendant’s vehicle’s passenger window. These circumstances fall well short of optimal to allow for a reliable observation, which may form a basis for the inference the object in the defendant’s right hand was a cell phone. As such, I can assign no weight to Officer Thompson’s opinion based on his initial observation of the defendant. 25.

The shortcomings of Officer Thompson’s initial observation were made clear by his additional testimony on examination-in- chief and cross-examination. As stated , Officer Thompson testified, upon approaching the defendant’s vehicle, he observed what he stated was the same cell phone attached to a holding device with a power cord still attached. At this point, Officer Thompson testified the defendant “immediately made an utterance offering an explanation and a conversation ensued” which utterance left Officer Thompson with “no doubt it was a cell [phone]” and he was “absolutely satisfied” in this regard.

In the absence of the defendant’s utterance and ensuing “conversation” with Officer Thompson, I have his initial incredulous observation from an enormous distance coupled with his second, up close, observation of what may very well have been a cellular phone legally attached to a holding device in the defendant’s vehicle. 26. As such, given all the evidence presented, I am left with a reasonable doubt as to whether the defendant was holding a cell- phone in his right hand when initially observed by Officer Thompson.

As the prosecution has failed to prove all the essential elements of the subject offence against the defendant beyond a reasonable doubt, I must find the defendant not guilty of the charge of driving a motor vehicle on a highway while holding or using a hand-held wireless communication device , contrary to subsection 78.1(1) of the H.T.A. DECISION: 27. The defendant is therefore found not guilty of the offence of driving a motor vehicle on a highway while holding or using a hand-held wireless communication device , contrary to

section 78.1(1) of the HTA , and the charge is dismissed. Released: December 16, 2020. Signed: Justice of the Peace Roger Rodrigues