Drivers’ Cell Phone Alibis Being Rejected by Court: “It was a Garage Door Opener”

A recent decision of the Ontario Court of Justice indicates that courts are clamping down on drivers accused of using mobile devices while driving.

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, [2012] 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.

R. v. Petrovic, 2012 ONCJ 562 (CanLII)

Adrian Miedema

About Adrian Miedema

Adrian is a partner in the Toronto Employment group of Dentons Canada LLP. He advises and represents public- and private-sector employers in employment, health and safety and human rights matters. He appears before employment tribunals and all levels of the Ontario courts on behalf of employers. He also advises employers on strategic and risk management considerations in employment policy and contracts.

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