R v Ngai

His Majesty the King v. Jackal Ngai

Ontario Court of Justice, Newmarket
Justice Jessica Sickinger | October 10, 2024

Background

PC Lefavre was driving northbound on Highway 404 when he spotted a blue Toyota Yaris. He pulled up beside the car and observed the driver, Jackal Ngai, with his face illuminated by a light. The officer believed he saw what looked like a cellphone in Ngai's hand. Lefavre pulled Ngai over and charged him with driving while using a handheld communication device under the Highway Traffic Act.

Here's the crucial detail: when Lefavre approached the vehicle after the traffic stop, he didn't see any cellphone. During cross-examination, he admitted he couldn't even recall which hand Ngai had been holding the device in. Most importantly, Lefavre gave no evidence about whether the device he observed was actually capable of communication.

Issues

1. Whether the verdict was unreasonable and unsupported by the evidence
2. Whether the Crown proved all essential elements of the offence

The Missing Element

The offence requires proof of two essential elements: first, that the accused was holding or using a device while driving; and second, that the device was "capable of receiving or transmitting telephone communications, electronic data, mail or text messages." The Justice of the Peace at trial found the first element proven based on the officer's testimony, but made a critical error on the second.

Justice Sickinger found that while the officer's evidence supported that Ngai was holding some kind of device, there was absolutely no evidence about what that device actually was or whether it had any communication capabilities. The trial judge simply assumed this element was proven, stating "there is no evidence to the contrary" — but that's not how the burden of proof works. The Crown must prove all elements beyond a reasonable doubt, not just hope the defence doesn't contradict them.

The Court of Appeal applied the Biniaris test for unreasonable verdicts and found the trial judge had made an error in law by entering a conviction when the evidence was incapable of supporting a finding of guilt on all elements.

Key Takeaway

The Crown must prove you were holding a communication device — not just any device that looks like one.

This case shows that even when an officer's observations seem damning, the Crown still has to prove every single element of the offence. If they can't establish that the device you were holding actually had communication capabilities, they haven't made their case.