Differences

This shows you the differences between two versions of the page.

--- sk:r_c._desmeules_2026_skkb_86 [2026/08/05 00:11] – victorzhou
+++ sk:r_c._desmeules_2026_skkb_86 [2026/08/05 01:19] (current) – victorzhou
@@ Line 1: / Line 1: @@
 ====== R c. Desmeules, 2026 SKKB 86 (CanLII) ======
+Original Source: [[https://www.canlii.org/fr/sk/skkb/doc/2026/2026skkb86/2026skkb86.html|CanLII]]
 ===== COURT OF KING'S BENCH FOR SASKATCHEWAN =====
@@ Line 55: / Line 57: @@
 [6] Two witnesses testified at trial: officer Arnaldo Fortugno for the Crown and Mr. Desmeules in his own defence.
-[7] Officer Fortugno testified that he had been an officer for 22 years. On July 6, 2021, he and his colleague were conducting driver seatbelt and cellphone checks on Idylwyld Drive in Saskatoon. Because it was nice outside, officer Fortugno was patrolling on foot. He observed Mr. Desmeules driving his vehicle, a RAV4, 15 metres away. He confirmed that Idylwyld Drive is a public road.
+[7] Officer Fortugno testified that he had been an officer for 22 years. On July 6, 2021, he and his colleague were conducting driver seatbelt and cellphone checks on Idylwyld Drive in Saskatoon. Because it was nice outside, officer Fortugno was patrolling on foot. He observed Mr. Desmeules driving his vehicle, a RAV4, 15 metres away. He confirmed that Idylwyld Drive is a highway.
 [8] Officer Fortugno testified that while he was monitoring southbound traffic on Idylwyld, he noticed Mr. Desmeules in his vehicle, a RAV4. Officer Fortugno looked inside the RAV4 through the passenger window. He noted that Mr. Desmeules was holding a cellphone in his right hand with the screen facing him. He clarified that Mr. Desmeules was holding the phone between his fingers and that the screen was lit. After making these observations, officer Fortugno returned to his patrol vehicle and stopped Mr. Desmeules. Once Mr. Desmeules' vehicle was stopped, officer Fortugno observed that his phone had a map application open.
@@ Line 77: / Line 79: @@
 [16] The trial judge first considered the details of the offence that Mr. Desmeules was convicted of. He then examined s. 241.1(2) of the //Act// and noted that the definition of "electronic communications equipment" in s. 241.1(1) included a cellphone. He identified the following questions: first, whether the prosecution proven the elements of the alleged offence beyond a reasonable doubt; and second, if the Crown had discharged this burden, whether the accused established a defence of due diligence on a balance of probabilities.
-[17] Regarding the evidence of the //Act// infraction, the trial judge concluded that officer Arnaldo Fortugno's testimony and the defendant's own testimony proved offence beyond a reasonable doubt. The defendant was the sole occupant and driver of the RAV4 in a traffic lane on Idylwyld, a public road in Saskatoon. The vehicle was stopped at a red light. Since the road was on a traffic land, the judge concluded that Mr. Desmeules was driving in the applicable sense. The judge found that s. 241.1(2) targeted distracted driving, including short stops at red lights, since drivers have to be aware of their surroundings, which include traffic lights, pedestrians and nearby vehicles. Mr. Desmeules admitted to having held a cellphone while picking it up from near his feet. He said that he held it for five to seven seconds before placing it on the dashboard. His testimony was consistent with officer Fortugno's testimony, who observed the accused holding the cellphone with his right hand and the screen being lit and facing Mr. Desmeules between the steering wheel and his face.
+[17] Regarding the evidence of the //Act// infraction, the trial judge concluded that officer Arnaldo Fortugno's testimony and the defendant's own testimony proved offence beyond a reasonable doubt. The defendant was the sole occupant and driver of the RAV4 in a traffic lane on Idylwyld, a highway in Saskatoon. The vehicle was stopped at a red light. Since the road was on a traffic land, the judge concluded that Mr. Desmeules was driving in the applicable sense. The judge found that s. 241.1(2) targeted distracted driving, including short stops at red lights, since drivers have to be aware of their surroundings, which include traffic lights, pedestrians and nearby vehicles. Mr. Desmeules admitted to having held a cellphone while picking it up from near his feet. He said that he held it for five to seven seconds before placing it on the dashboard. His testimony was consistent with officer Fortugno's testimony, who observed the accused holding the cellphone with his right hand and the screen being lit and facing Mr. Desmeules between the steering wheel and his face.
-[18] The trial judge considered three decisions of the Municipal Court of Quebec that Mr. Desmeules relied on and found that they did not apply in this case. He concluded that the Crown had proved the commission of the offence beyond a reasonable doubt.
+[18] The trial judge considered three decisions of the municipal courts of Quebec that Mr. Desmeules relied on and found that they did not apply in this case. He concluded that the Crown had proved the commission of the offence beyond a reasonable doubt.
 [19] Next, the trial judge turned to the defence of due diligence as interpreted by the Supreme Court in //R v Sault Ste. Marie//, 1978 CanLII 11, [1978] 2 SCR 1299 [//Sault Ste. Marie//]. He also considered the elements of the defence of the necessity, referring to //R v Latimer//, 2001 SCC 1 [//Latimer//]. The judge then applied the criteria to establish necessity to the facts and found that Mr. Desmeules had failed to prove the  criteria on a balance of probabilities. He also concluded that Mr. Desmeules had not established the defence of due diligence. As a result, the trial judge found Mr. Desmeules guilty of the highway offence.
@@ Line 104: / Line 106: @@
 ==== VI. Analyis ====
 === The offence of holding a cellphone while driving ===
@@ Line 114: / Line 115: @@
 **241.1**(1) In this section and in section 287:
-  * (a) __"electronic communications equipment" means a cellular phone__ or other prescribed equipment;
+  * (a) __"electronic communications equipment" means a cellular phone__ or other prescribed equipment;
-  * (b) "make a phone call" means to make, answer or end a phone call, or to
+  * (b) "make a phone call" means to make, answer or end a phone call, or to transmit or receive voice communication;
-         transmit or receive voice communication;
   * %%(c)%% "new driver" means a new driver as defined in the regulations;
   * (d) "use" means, with respect to electronic communications equipment, to use the electronic communications equipment to make a phone call, text, talk, email, or surf or access the Internet, or for any other prescribed purpose.
@@ Line 122: / Line 122: @@
 (2) __No driver shall hold, view, use or manipulate electronic communications equipment while driving a motor vehicle on a highway.__
-(2.1)  Every person who contravenes subsection (2) is guilty of an offence and liable on summary conviction:
+(2.1) Every person who contravenes subsection (2) is guilty of an offence and liable on summary conviction:
   * (a) to a fine of not more than $500 for a first offence;
   * (b) in the case of a second conviction in a 12-month period for an offence pursuant to this section, to a fine of not more than $1,000; and
@@ Line 129: / Line 129: @@
 (3)  Subsection (2) does not apply to:
   * (a) a driver who is not a new driver and who, while driving a motor vehicle on a highway:
-      * (i)  activates the electronic communications equipment to make a phone call by pressing a button once on the electronic communications equipment, or on a device that is linked to electronic communications equipment, and does not hold the electronic communications equipment; or
+      * (i) activates the electronic communications equipment to make a phone call by pressing a button once on the electronic communications equipment, or on a device that is linked to electronic communications equipment, and does not hold the electronic communications equipment; or
       * (ii) utilizes his or her voice to activate electronic communications equipment to make a phone call and does not hold the electronic communications equipment;
   * (b) a driver if the driver is using electronic communications equipment to report an emergency to a police service, a fire department or emergency medical services or to request an ambulance;
-  * %%(c)%%  a prescribed person or prescribed class of persons; or
+  * %%(c)%% a prescribed person or prescribed class of persons; or
-  * (d)  a prescribed vehicle or prescribed class of vehicles.
+  * (d) a prescribed vehicle or prescribed class of vehicles.
 </blockquote>
 [Underlines added by appeal judge.]
+[29] In //R v Kazemi//, 2013 ONCA 585 at para. 14 [//Kazemi//], the Court of Appeal for Ontario, while considering a similar law, explained that for public safety, these laws completely prohibit cellphone usage while driving to prevent distracted driving. In //Kazemi//, the facts were briefly summarized by Goudge J.A. in para. 1:
+<blockquote>
+[1] The facts of this case are simple. On April 26, 2010, the respondent was driving home from work alone. While she was stopped at a stop light, a police officer observed her to have a cellphone in her hand. She said that the cellphone had been on the seat but had dropped to the floor of the car when she braked. She picked it up when she got to the red light. That was when she was observed by the officer.
+</blockquote>
+[30] The main question was whether Ms. Kazemi was "[TRANSLATED] holding" her cellphone while driving. The Justice of the Peace concluded that Ms. Kazemi's admission that she had her cellphone in her hand established that she was holding it within the meaning of the offence. The summary conviction appeal judge overturned the conviction, finding that there needed to be sustained physical contact with the device to constitute "[TRANSLATED] holding" and that a momentary touch wasn't sufficient.
+[31] In the appeal at the Court of Appeal for Ontario, the Court held that the correct interpretation of the expression "holding" was to having a cellphone in the driver's hand without considering the length of time the cellphone was held. This interpretation conformed to the ordinary meaning of the word and best attained the objective of the law, being to protect those who use the roads of Ontario: //Kazemi// at paras. 11-12.
+[32] In //Kazemi// at para. 14, the Court of Appeal found that the objective of the law was to completely prohibit holding a cellphone while driving to prevent distracted driving and thus increase public safety:
+<blockquote>
+[14] Road safety is best ensured by a complete prohibition on having a cellphone in one's hand at all while driving. A complete prohibition also best focuses a driver's undivided attention on driving. It eliminates any risk of the driver being distracted by the information on the cellphone. It removes any temptation to use the cellphone while driving. And it prevents any possibility of the cellphone physically interfering with the driver's ability to drive. In short, it removes the various ways that road safety and driver attention can be harmed if a driver has a cellphone in his or her hand while driving.
+</blockquote>
+[33] //Kazemi// was cited with approval in //Lukic v R//, 2021 SKQB 221 [//Lukic//]. In //Lukic//, MacMillan-Brown J. concluded that the appellant was using his cellphone while driving, contrary to s. 241.1(2) of the //Act//, even though his vehicle was stopped at a red light. MacMillan-Brown J. found that the appellant was driving since his vehicle was in a traffic lane and in the flow of traffic, even though the appellant was briefly stopped and at a red light.
+[34] The offence proscribed by s. 241.1(2), holding a cellphone while driving, is a strict liability offence. To establish that Mr. Desmeules is guilty of this offence, the Crown must prove beyond a reasonable doubt that Mr. Desmeules committed the prohibited act (//actus reus//), specifically the following elements:
+  * (a) Mr. Desmeules was the driver of a motor vehicle;
+  * (b) He was driving on a highway;
+  * (c) While he was driving, he was holding, looking at, using or manipulating a cellphone.
+[35] Mr. Desmeules' version of events established each of these elements beyond a reasonable doubt. He admitted that he was driving the RAV4 on Idylwyld Drive, a highway in Saskatoon. He confessed that, when he was stopped at an intersection, he picked up his cellphone from his feet, held it between five to seven seconds and then placed it on his dashboard. In this regard, Mr. Desmeules' testimony is consistent with that of officer Fotugno's.
+[36] In short, the facts of this case are as simple as the facts in //Kazemi//. On July 6, 2021 at 2:45 PM, Mr. Desmeules was driving a vehicle on Idylwyld Drive in Saskatoon, Saskatchewan. Idylwyld Drive is a "highway" as described by s. 2(k) of the //Act//. Mr. Desmeules' vehicle was stopped at a red light. Even though his vehicle was stopped, he was on a travel lane and was driving: see //Lukic// at para. 65. When he was stopped, he picked his phone up from the floor at his feet. He held it in his hand between five to seven seconds, looked at the screen briefly before placing it on the dashboard. Thus, Mr. Desmeules contravened s. 241.1(2) of the //Law// when he held electronic communications equipment while driving a motor vehicle on a highway.
+[37] At trial and on appeal, Mr. Desmeules relies on three decisions of the municipal courts of Quebec: //Ville de Saint-Jérôme c Noël//, 2019 QCCM 61 [//Noël//]; //Ville de Montréal c Safa//, 2020 QCCM 19; and //Ville de Saint-Jérôme c Fortin//, 2020 QCCM 78. None of these decisions are of assistance to Mr. Desmeules, for multiple reasons. First, the rule under consideration in each of these cases, s. 443.1 of the //Code de la sécurité routière//, RLRQ ch C-24.2, is not as restrictive as s. 241.1(2) of the //Act//. As explained by para. 16 of //Noël//, the Quebec law allows:
+<blockquote>
+[TRANSLATED]
+[16] For the purposes of this case, the Court makes three findings on the interpretation of this law:
+.1 It is permitted to have a telephone conversation while using a cellphone and driving a vehicle, as long as the cellphone is in "hands-free" mode;
+.2 It is permitted, while driving, to look at the information on a display screen, including on a portable device, as long as (1) the device only shows information pertinent to the driving of the vehicle or the functionality of its devices, (2) the screen is integrated with the vehicle or placed on a support, either stationary or move-able, attached to the vehicle, and (3) the device as attached in a secure way.
+.3 It is permitted, while driving, to activate a function on a display screen on the same conditions enumerated by paragraph 16.2 above.
+</blockquote>
+[38] The law under review does not allow the driver to look at their cellphone's screen nor permit the usage of an application on the screen.
+[39] Second, in each of these cases, the accused was acquitted because they were using a map application in conformity with the law/or because they were having a conversation in hands-free mode. None of the accused were holding the phone in their hand.
+[40] In the case at bar, the Justice of the Peace committed no error in finding that the Crown had proved the elements of the offence beyond a reasonable doubt.
+=== The defences of necessity and due diligence ===
+[41] Mr. Desmeules argues that the trial judge committed an error by failing to find the defences of necessity and impossibility.
+[42] The state of necessity can be used as a defence against a regulatory violation of a provincial law, such as the //Act//, in the same way as against criminal offences: //R v Brennan//, 1989 CanLII 7169, 52 CCC (3d) 366 (ONCA); and //R v Kurtzman//, 1991 CanLII 7059, 66 CCC (3d) 161 (ONCA).
+[43] The elements required to establish the defence of necessity are the following (//Latimer// at para. 28):
+(a) There must be an imminent peril or danger;
+(b) The accused must have had no reasonable legal alternative to the course of action he or she undertook; and
+(c) There must be proportionality between the harm inflicted and the harm avoided.
+[44] When sufficient evidence is placed before the court that raises the defence of necessity, the Crown must prove beyond a reasonable doubt that the accused's actions were voluntary: //Perka v The Queen//, 1984 CanLII 23, [1984] 2 SCR 232 (SCC) at pp. 257-258.
+[45] The decision in //Toronto (City) v Russo//, 2024 ONCJ 476, illustrates the application of the defence of necessity to a highway offence involving the use of a cellphone. Mr. Russo, the driver of the vehicle, was stopped in the left-hand turn land at an intersection. He was diabetic and received an alert on his cellphone from an implant in his arm. He took his cellphone out, opened an application and held the phone in his arms. An officer witnessed these actions and indicated for him to pull over. Mr. Russo explained that his blood sugar level were low and he needed to take his medicine. The Justice of the Peace concluded that there were signs of a clear and imminent danger for Mr. Russo's health. He had to measure his blood sugar level to determine the next steps. Since his vehicle was fourth in line and traffic was slow, he did not have any other choice but to violate the road rule. He had an urgent need and could not find a way to leave the road. Finally, the symptoms that Mr. Russo was trying to avoid - vertigo, disorientation, loss of consciousness while driving - were more dangerous than the danger of a brief distraction from consulting his cellphone.
+[46] The defence of impossibility is encompassed by the defence of due diligence: //R v Cobalt Construction Inc.//, 2018 YKSC 36 at paras. 47-55; //Mount Polley Mining Corporation v Environmental Appeal Board//, 2022 BCSC 1483 at paras. 62-63. To establish this defence, the defendant must provide evidence of their due diligence. They must demonstrate, on a balance of probabilities, that they took all reasonable measures to avoid the events in question: //Sault Ste. Marie// at pp. 1325-1326.
+[47] In the case at bar, the trial judge correctly identified the constitutive elements of the defence of necessity. They then concluded that they were not convinced, on a balance of probabilities, that the presence of a cellphone on the floor of a vehicle, under the accelerator pedal, would create a situation of imminent danger, which is the first element of the defence. Additionally, he was not convinced that Mr. Desmeules demonstrated that there were no other reasonable and legal options other than violating the law, which is the second element. As an example, the trial judge stated that Mr. Desmeules could have put the vehicle in park and activated the hazard lights before picking up his cellphone.
+[48] The trial judge also found that Mr. Desmeules failed to establish the defence of due diligence. They noted that Mr. Desmeules could have taken precautions to prevent his phone from falling to the floor. The judge remarked that the defendant could have placed his phone in a secure place, like a pocket or a storage area. Thus, the judge rejected the defence of due diligence.
+[49] In my view, the trial judge could have made a clearer distinction between the defences of due diligence and necessity in his application of the law to the facts of the case at bar. Despite this lack of precision, the judge clearly concluded that Mr. Desmeules failed to show, on a balance of probabilities, that he was in imminent danger from dropping his cellphone and that there was no other reasonable solution other than to violate the law. He did not commit any error in this regard.
+[50] Additionally, the trial judge concluded that Mr. Desmeules did not take reasonable precautions, such as attaching his cellphone to a place where it would not be at risk of falling to the floor. As a consequence, Mr. Desmeules failed to show, on a balance of probabilities, that he took all reasonable precautions to avoid the contravention. Again, the trial judge made no error in coming to this conclusion.
+[51] For these reasons, I find that the trial judge's verdict is supported by the evidence and is reasonable. I also find that the judge did not commit any error neither when they stated the required elements of the defences of necessity and due diligence nor they applied those elements to the fact.
+==== VII. Conclusion ====
+[52] For these reasons, the appeal is rejected.
+__%%_________%%J.__ \\
+P.T. BERGBUSCH