Toronto (City) v Russo

Toronto (City) v. Russo

2024 ONCJ 476
Ontario Court of Justice — Justice of the Peace Mary A. Ross Hendriks | September 24, 2024

Background

Roberto Russo was driving westbound on Eglinton Avenue West in Toronto on May 25, 2023, when Police Constable Jeffrey Blair spotted him in the left-turn lane holding a cellphone. Russo was stopped, fourth car back from the intersection, facing a red light. Officer Blair had a clear view through the passenger window and watched Russo looking down at his phone, which was tilted at a 45-degree angle toward his face. When Blair waved at him, Russo immediately put the phone down on the passenger seat.

Russo was charged under section 78.1(1) of the Highway Traffic Act — drive handheld communication device. But there was more to the story. Russo is a diabetic with a sensor implanted in his arm that connects to a smartphone app called LibreLink. While waiting at the red light, his phone received an urgent blood sugar alert that sounded like an Amber Alert. Feeling unwell, he picked up his phone to check his glucose levels using the app, which required him to hold the phone near the sensor in his arm.

Issues

1. Did the prosecution prove the actus reus of driving while holding a handheld communication device?
2. Did Russo successfully establish the defence of necessity?

The Defence of Necessity

Justice of the Peace Ross Hendriks found that while Russo clearly violated section 78.1(1) of the HTA, he successfully established the defence of necessity. The court applied the three-part test from Perka v. The Queen: (1) imminent peril or danger, (2) no reasonable legal alternative, and (3) proportionality between harm inflicted and harm avoided.

Imminent Peril: The court found Russo faced "clear and imminent peril" to his well-being. His diabetic monitoring device alerted him to an urgent medical event while he was feeling unwell, and he needed to determine immediately whether to take medication to prevent confusion, dizziness, or unconsciousness.

No Legal Alternative: The judge ruled it would be dangerous to require Russo to wait for the light to change, make his turn, then find a place to pull over. During this delay, he could become incapacitated behind the wheel. The court noted it would be "unconscionable to require a diabetic driver to become unwell to the point of calling 911" to use this defence.

Proportionality: While acknowledging that distracted driving laws exist for serious public safety reasons, the court found the harm avoided — preventing a diabetic driver from becoming disoriented or unconscious while driving — outweighed the risk of briefly checking his phone while stopped at a red light, four cars back from the intersection.

Key Takeaway

Medical emergencies can justify breaking handheld device laws, but only in very specific circumstances.

This case doesn't create a blanket exception for medical device use while driving. The court emphasized that necessity is an "excusable" defence, not permission — the act is still wrongful, but pardonable in emergency circumstances. The key factors were that Russo was completely stopped, facing immediate health consequences, and had no reasonable alternative.