R v Pizzuro

R. v. Pizzuro

[2012] O.J. No. 860
Ontario Court of Justice — W.G. Beatty J. | January 30, 2012

Background

On February 14, 2011, at 6:40 p.m., a police officer was driving southbound on Highway 11 when he noticed Hugo Pizzuro's vehicle had excessive light coming from the front. As the officer overtook Pizzuro's car, he observed that Pizzuro had a GPS in the windshield and a cell phone in his left hand while driving. The officer testified that Pizzuro appeared to be either typing or reading the device, which was emitting light.

When Pizzuro noticed the police officer beside him, he dropped the cell phone. After being stopped, the officer found a cell phone in the passenger seat or console. Pizzuro was convicted on June 30, 2011, of driving while holding or using a handheld wireless communication device under section 78.1(1) of the Highway Traffic Act. He represented himself on appeal.

Issues

1. Did the Crown prove all essential elements of the offence under section 78.1(1)?
2. Who bears the burden of proving whether the device was capable of wireless communication?

The Missing Element

The offence under section 78.1(1) requires proof that the defendant was driving while holding or using a handheld wireless communication device that is capable of receiving or transmitting telephone conversations, electronic data, mail, or text messages. This capability is not just a technicality — it's an essential element that the Crown must prove beyond a reasonable doubt.

Here's where the Crown's case fell apart: while the officer testified that he saw Pizzuro holding what appeared to be a cell phone that was emitting light, no evidence was presented that the device was actually capable of wireless communication. The Justice of the Peace at trial incorrectly shifted the burden to Pizzuro to prove the device was inoperative, but Justice Beatty clarified that this was wrong — the Crown must prove all elements of the offence.

Justice Beatty noted that if the Crown had produced some evidence that the device was operative, then Pizzuro would have been put to his election to call contrary evidence or argue that his use fell within an exception. But without that foundational proof, the conviction couldn't stand.

Key Takeaway

The Crown must prove every single element of the offence — you don't have to prove your innocence.

Even when the facts seem obvious (like holding what looks like a cell phone), the prosecution still has to prove each legal requirement. Justice Beatty also noted that distracted driving from holding any device — even a non-functional one — might support a careless driving charge instead.