R v Petrovic

R. v. Petrovic

2012 ONCJ 562
Ontario Court of Justice — Justice of the Peace Kenneth W. Dechert | September 6, 2012

Background

On August 19, 2011, at 2:15 p.m., Police Constable Norman Deneault was stopped at a red light at the intersection of Appleby Line and Dundas Street in Burlington. He was watching for traffic violations when he spotted Bozo Petrovic driving a Pontiac Montana in the right-turn lane. As Petrovic's vehicle passed by at about 40 km/h and made the right turn, Deneault observed him holding a black device to his left ear with his lips moving, appearing to talk into it. There was a black electrical cord running from the device down toward the dashboard area.

Deneault followed and pulled Petrovic over, issuing him a ticket for driving while operating a handheld communication device under section 78.1(1) of the Highway Traffic Act. The officer never examined the device up close and conducted no investigation to confirm what type of device it actually was. At trial, Petrovic's representative argued the prosecution failed to prove the black device was actually a cell phone or that it was capable of transmitting communications.

Issues

1. Can a court take judicial notice that a "cell phone" is a handheld wireless communication device under the HTA?
2. Must the prosecution prove a device was actually capable of transmitting at the time of the offence?
3. Was the circumstantial evidence sufficient to prove the black device was a cell phone?

Circumstantial Evidence and Cell Phones

Justice Dechert ruled that courts can take judicial notice that a cell phone qualifies as a "handheld wireless communication device" under section 78.1(1) of the HTA — no additional proof required. More importantly, he found that the prosecution doesn't need to prove the device was actually capable of transmitting at the time of the offence. The wording of section 78.1(1) only requires proof that the device is capable of communication, not that it was working at that specific moment.

The key battle was over circumstantial evidence. The defence argued that without examining the device, there was no proof it was actually a cell phone — it could have been a toy, flashlight, or garage door opener. But Justice Dechert found the combination of facts created only one reasonable inference: a person alone in a car, holding a black device to their ear while talking, with an electrical cord running to the dashboard, was using a cell phone. He called any other explanation "impermissible speculation."

Key Takeaway

Visual observations of typical cell phone use can be enough for conviction, even without examining the actual device.

If an officer sees you holding something to your ear while driving and talking, that circumstantial evidence alone may satisfy the court that you were using a handheld communication device. The prosecution doesn't need to prove your phone was actually working or inspect it closely.