Citation: 2026 SKKB 86 Date: 2026 04 23 File no: CRM-SA-00300-2023 Judiciary centre: Saskatoon

BETWEEN:

HIS MAJESTY THE KING
RESPONDENT

- and -

JEAN-MARC DESMEULES
APPELLANT

Counsel:

John Knox
for the Crown

Jean-Marc Desmeules; on his
own behalf

JUDGEMENT BERGBUSCH J. April 23, 2026

[1] Jean-March Desmeules appeals a conviction of holding a cellphone while driving, contrary to s. 241.1(2) of the Trafic Safety Act, SS 2004, c T-18.1 [Act]. Mr. Desmeules submits that the trial judge committed the following errors:

• (a) ignore the version of the facts and evidence that he presented; and
• (b) failing to consider the defences of necessity and impossibility

[2] Mr. Desmeules asks for the annulment of his conviction and his acquittal, or for a new trial.

[3] For the reasons that follow, I conclude that the trial judge did not commit any error of law that would result in the annulment of his conviction and that the verdict was not unreasonable. The appeal is dismissed.

[4] Mr. Desmeules was accused of driving a vehicle while holding, looking, using or manipulating electronic communications equipment in Saskatoon, Saskatchewan on July 6, 2021, contrary to s. 241.1(2) of the Act. This offence is liable to summary conviction under s. 275 of the Act.

[5] Mr. Desmeules pleaded not guilty by mail on August 24, 2021. On March 21, 2023, a French-language trial took placein the Provincial Court of Saskatchewan before a Justice of the Peace. Mr. Desmeules represented himself.

[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.

[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.

[9] After verifying Mr. Desmeules' identity with his driver license, officer Fortugno issued him violation ticket number 82553849.

[10] On cross-examination, officer Fortugno admitted that he did not remember the colour of the vehicle, only that it was a RAV4. He testified that the cellphone's case seemed dark-coloured. Finally, he confirmed that he did not see anyone aside from Mr. Desmeules in the vehicle.

[11] Mr. Desmeules testified that when he stopped his vehicle at a red light, his cellphone fell to the floor on the driver's side under his foot and the accelerator pedal. He bent down and picked his phone up. In the process, the screen lit up which allowed him to find and retrieve the phone. He picked the phone up and pressed it against the steering wheel before putting it in the central console. He testified that he used Google Maps and that he was navigating to his destination. Mr. Desmeules clarified that he held his cellphone for about five to seven seconds.

[12] Mr. Desmeules admitted into evidence a copy of his cellphone bill which, according to him, confirms that he was not using his cellphone to make or receive calls, or to send or receive text messages and emails.

[13] In his testimony, Mr. Desmeules showed his phone case and stated that it was pale green and not dark green as testified by officer Fortugno. He also testified that his dog was in the passenger seat and that he petted his dog occasionally. He explained that he was looking at the passenger side when he was stopped at the red light because he was petting his dog.

[14] On cross-examination, Mr. Desmeules confirmed that he was holding his cellphone in his hand when his RAV4 was stopped at a red light and that the application Google Maps was open. His car was stopped when his phone fell to the floor. He stated that his cellphone would have impacted his driving if he was holding it in his hand. However, Mr. Desmeules admitted that his vehicle had automatic transmission and that his vehicle would have moved forward slowly even without stepping on the accelerator, unless it was stopped on a slope.

[15] On June 19, 2023, the trial judge stated that the Crown had the burden to prove the commission of the infraction beyond a reasonable doubt. The judge rejected the defences of due diligence and necessity, finding that the accused had not established either of these defences on a balance of probabilities.

[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.

[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.

[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.

[20] Pursuant to s. 4(4) of The Summary offences Procedure Act, 1990, SS 1990-91, c S-63.1, Part XXVII (except s. 840) of the Criminal Code, RSC 1985, c C-46, applies to Mr. Desmeule's appeal. In particular, the defendant's right to appeal to the Court of King's Bench is prescribed by s. 813 of the Criminal Code.

[21] The powers conferred on a court of appeal in a summary conviction appeal are prescribed by ss. 686 and 822 of the Criminal Code. By virtue of s. 822 of the Criminal Code, the powers of the court of appeal apply to summary conviction appeals, which are appeals based on the file. When a defendant appeals a conviction, the court may allow the appeal if: 1) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence; 2) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or; on any ground there was a miscarriage of justice: s. 686(1)(a). Even if the court of appeal is of the opinion that the trial judge committed an error of law, if it is the court of appeal's opinion that no substantial wrong or miscarriage of justice has occurred, it may dismiss the appeal if no substantial wrong or miscarriage of justice has occurred: s. 686(1)(b)(iii).

[22] In general, a court of appeal may only intervene when the accused has been prejudiced. Unreasonable verdicts and miscarriages of justice are usually prejudicial to the accused by nature and are presumed to be errors of law; this presumption can be rebutted: R v Tompouba Tayo, 2024 SCC 16 at para. 56 [Tompouba]; R v Khan, 2002 SCC 86 at para. 16.

[23] A verdict is unreasonable when it is cannot be supported by the evidence or if it is vitiated by illogical or irrational reasoning: R v Brunelle, 2022 SCC 5. The court of appeal is entitled to review the evidence, re‑examine it and re‑weigh it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's verdict: R v Burns, 1994 CanLII 127, [1994] 1 SCR 656 at page 663.

[24] An error of law implies an error in the application of a rule of law. An error in the application of a rule can be an erroneous interpretation of a rule or an unjustified failure to apply a law: Tompouba at paras. 62-63. The presumed prejudice from an error of law can arise from a breach of either a substantive or a procedural right: Tompouba at para. 64.

[25] If the trial judge committed an error of law, the Crown may invoke the curative provisos prescribed by ss. 686(1)(b)(iii) and (iv). The court of appeal may dismiss the appeal if the error of law does not result in significant prejudice or a significant miscarriage of justice. This may occur if the error was so minor or harmless such that there was no impact on the verdict. This also may occur if the error was significant enough to warrant a new trial, but there was no substantial wrong or miscarriage of justice because the evidence against the appellant is so overwhelming that a trier of fact would inevitably convict: Tompouba at paras. 74-76.

[26] In his notice of appeal, Mr. Desmeules states that the trial judge ignored his version of the facts and his evidence, and failed to consider the defences of necessity and impossibility.

[27] With the standard of review applicable to summary convictions in mind, I will consider whether the verdict is unreasonable because it is not supported by the evidence. I will also consider whether the trial judge committed errors of law regarding the defences of necessity and impossibility.

[28] Mr. Desmeules was found guilty of contravening s. 241.1(2) of the Act. This paragraph reads, in substance, as follows:

Hand-held electronic communications equipment prohibited

241.1(1) In this section and in section 287:

• (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

transmit or receive voice communication;

• © “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.

(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:

• (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
• © in the case of a third or subsequent conviction in a 12-month period for an offence pursuant to this section, to a fine of not more than $1,500.

(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
  • (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;
• ©  a prescribed person or prescribed class of persons; or
• (d)  a prescribed vehicle or prescribed class of vehicles.

[Underlines added by appeal judge.]