R v Marujo

R. v. Marujo

2015 ONCJ 717
Ontario Court of Justice — Justice of the Peace Kenneth W. Dechert | November 20, 2015

Background

On January 25, 2015, Sabrina Marujo was driving her white BMW SUV eastbound on Highway 401 near Milton when OPP Constable Jonathan Cannon spotted her from the adjacent lane. Cannon claimed he saw Marujo holding what appeared to be a cell phone in her right hand, bringing it down toward the center console. When she noticed him watching, she allegedly "appeared to mouth something angrily." Cannon pulled her over and issued a ticket under section 78.1(1) of the Highway Traffic Act for driving while holding a hand-held communication device.

Marujo pleaded not guilty and went to trial. The case hinged entirely on Cannon's testimony, as he was the prosecution's only witness.

Issues

1. Did the prosecution prove beyond a reasonable doubt that the object in Marujo's hand was actually a cell phone?
2. Was Constable Cannon's lay opinion evidence reliable enough to support a conviction?

The Reliability of Police Opinion Evidence

Justice Dechert found Constable Cannon to be honest but unreliable. While the officer had an unobstructed view from one lane away in daylight conditions, his memory of the incident was severely lacking. During testimony, Cannon admitted he "couldn't exactly remember what the phone looked like" and couldn't recall its color, brand, or whether it was a touchscreen or BlackBerry-style device. Most damaging: when asked if he saw the phone again after stopping the vehicle, he replied "I don't believe so. To be honest I don't have it noted. I don't recall."

The court applied the Supreme Court's test from R. v. Graat, which allows non-expert witnesses to give opinion evidence about identifying common objects. However, the weight given to such opinions depends entirely on their reliability. When pressed during cross-examination about what distinguished the object from a wallet, calculator, or digital recording device, Cannon couldn't provide any specifics. His testimony oscillated between confident statements ("what I saw was a cell phone") and equivocal ones ("it appeared to be a cell phone").

The judge found these internal inconsistencies fatally undermined the officer's credibility. Most significantly, Cannon admitted he wasn't "100 percent sure" what the object was because he didn't see it after the stop. This ambivalence, combined with his inability to recall any distinguishing features, rendered his opinion unreliable despite his optimal viewing conditions.

Key Takeaway

Even honest police testimony can fail if it lacks sufficient detail and consistency to be reliable.

For section 78.1(1) charges, the prosecution must prove you were holding a specific type of device — not just any rectangular object. If an officer can't describe what they allegedly saw or provide details that distinguish it from other common items, that creates reasonable doubt even when their viewing conditions were good.