A recent decision of the Ontario Court of Justice indicates that
courts are clamping down on drivers accused of using mobile devices
Justice of the Peace Dechert noted that other drivers
– who have apparently opted not to testify but simply to
argue that the prosecutor has not proven the charge –
have argued that they could have been holding a toy, a flashlight
or garage door opener that looks like a cell phone but is not.
J.P. Dechert quoted Madam Justice Ready's statement, in the
case of R. v. Gill,  O.J. No. 2511 (Ont. C.J.) that,
"Mere suggestions as they were put to the justice of the
peace, without something more concrete, with an air of reality [to]
them, cannot lead to reasonable doubt."
In the case before J.P. Dechert, a police officer testified that
he saw the driver holding what appeared to be a cell phone to his
left ear as the driver's lips were moving, and there was a
black cord running from the device down to the dash area.
The driver argued that because the police officer made no
notation that he had confirmed that the device was a cell phone and
had no recollection of seeing the device up close, the prosecutor
had not proven that the device was indeed a cell phone, so the
charge should be dismissed.
Justice of the Peace Dechert decided that he could draw a
"reasonable inference" that the device was a cell phone,
given that the officer saw a black device being held to the
driver's left ear and observed the driver's lips moving,
that there was a black cable running from the device to the dash,
and that there was no other person in the vehicle to whom the
driver could have been speaking.
Employers should take note of the court's rejection of
drivers' arguments in these mobile device cases, and should
consider, as part of their occupational health and safety program,
including a clear requirement that employees not use handheld
mobile devices while driving on company business.
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