R v McConnell

R. v. William McConnell

Information No. 2811-999-00-1028825B-00
Ontario Court of Justice — Justice P. West | February 1, 2017

Background

William McConnell was charged under section 78.1 of the Highway Traffic Act for using a handheld wireless communication device while driving. The incident occurred at the intersection of Brock Road and Highway 7 in Pickering. Police Constable Stinson was positioned in a church parking lot, observing northbound traffic for distracted drivers. He claimed to see McConnell holding a black flip-style cell phone while stopped at a red light and plugging a charger into it.

McConnell's defence counsel, Mr. Marscheler, challenged the officer's evidence on the basis that Constable Stinson had no independent recollection of the events beyond what was written in his notes. The defence argued that the officer's notes should have been entered as an exhibit if they were the actual source of his evidence, and questioned whether McConnell was actually "driving" when the alleged phone use occurred.

Issues

1. Did the officer have sufficient independent recollection to testify without filing his notes as exhibits?
2. Was the defendant "driving" within the meaning of section 78.1 of the Highway Traffic Act when stopped at a red light?

The Independent Recollection Problem

Justice West found the officer's testimony problematic. During examination-in-chief, Constable Stinson claimed he had an "independent recollection" of the events. However, under cross-examination, he admitted that much of what he testified to came from his notes rather than actual memory. When asked about specific details — like how many vehicles were ahead of McConnell, the tint on the windows, or whether he observed the incident through the windshield — the officer couldn't recall.

The court noted that when an officer relies primarily on notes rather than independent memory, those notes should be filed as an exhibit. As Justice West explained, "If a document is actually the source of the evidence, permit the document itself to be admitted as an exhibit, where the document is in the font or source of the information permitting it to be filed as an exhibit is sensible unless the document contains otherwise inadmissible information."

The "Driving" Definition

The defence argued that McConnell wasn't "driving" when stopped at a red light with his transmission in park. Justice West referenced the Kazemi case from the Ontario Court of Appeal, which established that "holding" a phone can be momentary, but noted that Kazemi specifically dealt with holding, not whether someone was driving. The court found that being stopped at a red light while still in the active travel lane constituted being "in the process of travel" and therefore driving within the meaning of the Act.

Key Takeaway

Police officers who rely on their notes rather than independent memory must file those notes as evidence — they can't have it both ways.

This case shows the importance of challenging officer testimony when they claim independent recollection but clearly rely on written notes. It also confirms that you're still considered "driving" when stopped at a red light in an active traffic lane.