



COURT OF APPEAL FOR ONTARIO

CITATION: R. v.
Pizzurro
, 2013
    ONCA 584

DATE: 20130927

DOCKET: C55284

Laskin, Goudge and Watt JJ.A.

BETWEEN

Her Majesty the Queen

Appellant

and

Hugo
Pizzurro

Respondent

Jameson W.
Clow
, for the
    appellant

Brady Cunningham,
amicus curiae

Hugo
Pizzurro
, appearing in
    person

Heard: May 27, 2013

On appeal from the judgment of Justice George Beatty of
    the Ontario Court of Justice dated January 30, 2012, allowing the appeal from
    the conviction entered by Justice of the Peace Susan Evans on July 14, 2011.

Goudge J.A.:

[1]

On February 14, 2011, the respondent was driving
    southbound on Highway 11.  He was
    observed by a police officer to have a cell phone in one hand.  It appeared to the officer that the
    respondent was either typing or reading the information on it.

[2]

The respondent was charged with a breach of s.
    78.1(1) of the
Highway
    Traffic Act
R.S.O. 1990, c. H.8 as amended by S.O. 2009, c. 4, s. 2
    (the 
HTA
).  It reads:

Wireless
    communication devices

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. [Emphasis added.]

[3]

The trial court rejected the respondents
    argument that there was no evidence that what the officer observed him using was
    an operating cell phone, and that this was required in order to convict
    him.  The respondent was found guilty and
    fined $125.00.

[4]

On appeal to the Ontario Court of Justice, the appeal
    judge allowed the appeal and dismissed the charge.  He concluded that an essential element of the
    offence under s. 78.1(1) of the
HTA
is that the cell phone be capable of receiving or transmitting telephone
    communications, electronic data,
mail
or text
    messages. He held that the burden rests upon the prosecutor to prove the
    essential elements of the offence, and in this case the prosecutor had failed
    to do so.

[5]

The Crown, represented by the District
    Municipality of
Muskoka
, appeals with leave to this
    court.

ANALYSIS

[6]

The respondent has never disputed that the cell
    phone he was observed to have in his hand while driving was a hand-held
    wireless communication device.  The sole
    issue is whether the Crown must prove that the cell phone was capable of
    receiving or transmitting in order to convict him under s. 78.1(1) of the
HTA.

[7]

For the following reasons, I conclude that the
    Crown need not do so.

[8]

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).

[9]

In my view, the requirement that the device be
    capable of receiving or transmitting telephone communications, electronic data,
mail
or text messages applies to prescribed devices
    but not to cell phones.  In its ordinary
    meaning, the wording of s. 78.1(1) provides that it is prescribed devices that
    must have that capability.  This
    constitutes the legislatures direction to the Minister to ensure that, in
    future, the devices prescribed by regulation be of a kind that have this
    capability.  On the other hand, cell
    phones are well known as a kind of device that
are
capable
    of receiving or transmitting.  No similar
    requirement is needed for them.

[10]

Moreover, to impose the requirement that a cell
    phone held by a driver while driving was capable of receiving or transmitting
    would be unreasonable both for enforcement and for prosecution.  The legislature could not have intended that
    result.

[11]

The significant challenge for law enforcement is
    readily apparent.  There can be no doubt
    that s. 78.1(1) was targeted principally at cell phones.  Observing a driver holding or using a cell
    phone while driving would not be enough if this requirement existed.  For each case, the police would also have to
    find ways to immediately acquire and test the cell phone in order to determine
    that it was capable of receiving or transmitting.  I do not think that the legislature would
    have intended such a burden to be imposed by a section that is otherwise
    designed to operate in a simple and straightforward way.

[12]

It would also be unreasonable for
    prosecution.  Where for example the
    charge is using a cell phone while driving, to require the Crown, once it has
    proven the use of a cell phone to communicate, to also prove that the cell
    phone that was being used to communicate is capable of doing so is
    unnecessary.  It would be unreasonable to
    read s. 78.1(1) to impose such a burden.

[13]

Finally, the legislative purpose of s. 78.1(1)
    must be considered.  In
R. v.
Kazemi
,
    (issued simultaneously with these reasons) this court described that purpose as
    ensuring road safety and driver attentiveness to driving.  It is best served by applying the requirement
    that the device be capable of receiving or transmitting only to prescribed
    devices, but not to cell phones. Road safety and driver attentiveness to
    driving are best achieved by entirely prohibiting a driver from holding or
    using a cell phone while driving.  To
    hold out the possibility that the driver may escape the prohibition because the
    cell phone is not shown to be capable of communicating, however temporarily, is
    to tempt the driver to a course of conduct that risks undermining these
    objectives.

[14]

For these reasons I conclude that s. 78.1(1) of
    the
HTA
does not require that the cell phone held or used by a driver while driving be
    shown to be capable of receiving or transmitting telephone communications, electronic
    data,
mail
or text messages.

[15]

I would therefore allow the appeal and restore
    the conviction.

Released: September 27, 2013 (J.L.)

S.T. Goudge J.A.

I agree John Laskin J.A.

I agree David Watt J.A.


