Source: CanLII

Court of Appeal for Saskatchewan
Citation: R c Desmeules, 2026 SKCA 86
Docket: CACR4018
Date: 2026-08-06

Between:

Jean-March Desmeules,
applicant/appellant

and

His Majesty the King,
respondent/respondent

Reasons: Bardai J.A. (in chambers)

Disposition: Application for leave to appeal dismissed

Written reasons by: The Honourable Justice Naheed Bardai

On appeal from: 2026 SKKB 86, Saskatoon
Application heard: June 11, 2026

Counsel: Jean-Marc Desmeules for himself
Dana Brûlé for His Majesty the King

Bardai J.A.

[1] Jean-Marc Desmeules was found guilty by a justice of the Provincial Court of having used a cellphone while driving a motor vehicle contrary to s. 241.1 of The Traffic Safety Act, SS 2004, c T-18.1. This decision was appealed to the Court of King's Bench but the appeal was dismissed by a judge of that court. Mr. Desmeules applies for leave to appeal this decision.

[2] Section 4(4) of the Summary Offences Procedure Act, 1990, SS 1990-91, c S-63.1, applies the appeal process provided by s. 839 of the Criminal Code to this offence. Mr. Desmeules may only appeal on a question of law and only with leave of the court. To obtain leave, Mr. Desmeules must demonstrate a question of law that is either significant to the administration of justice generally or exceptional circumstances where the denial of leave would result in an injustice going unaddressed (R v Knoll, 2026 SKCA 35 at para. 4; and R v Bray, 2017 SKCA 17 at para. 2). None of these grounds are present. Therefore, Mr. Desmeule's application for leave is dismissed.

[3] At trial, Mr. Desmeules testified that he was using his hands-free phone for Google Maps. The phone fell to the floor under the accelerator pedal, creating an emergency situation. He then diligently leaned over to retrieve his phone to avoid an imminent danger, an action which took between five and seven seconds. According to Mr. Desmeules, while he was trying to retrieve his phone, the screen lit up allowing him to find it on the ground. He then held the phone on the steering wheel while leaning over again to retrieve the external battery which had also fell. Once he had retrieved the two objects, he placed him on the vehicle console.

[4] The trial judge concluded that Mr. Desmeules, who was stopped at a red light on Idylwyld Drive, was distracted by his phone. The vehicle was not parked and the emergency lights were not activated. Mr. Desmeules was stopped by police while he was holding the phone in his hand, with the screen lit up and facing him. Mr. Desmeules was alone in the vehicle at that moment and was distracted from the road for five to seven seconds.

[5] The trial judge concluded that the offence had been established beyond a reasonable doubt and that the defences of necessity and due diligence were not made out on the evidence before him. His decision rested mainly on the factual circumstances. In particular, he found that there was an absence of evidence to support the defence of urgent circumstances, concluding that the telephone on the ground did not present an immediate and urgent danger in this case.

[6] Additionally, the trial judge was not convinced by the facts that reasonable diligence had been exercised. He concluded that a phone that was correctly secured would not have fallen to the floor, that the vehicle was not parked and that the emergency lights were not activated while Mr. Desmeules was looking for his phone. These are factual findings which are owed deference.

[7] The factual findings of the trial judge were supported by the evidence, despite Mr. Desmeules' challenges. The trial judge was confronted with contradictory versions of the facts and had to resolve the differences using the admissible evidence before him. Having considered the evidence, he was in the best position to make these decisions.

[8] Mr. Desmeules appealed the trial judge's decision before the Court of King's Bench and his appeal was heard by a judge of that court [appeal judge].

[9] Before the appeal judge, Mr. Desmeules argued that the trial judge ignored his version of the facts and the evidence that he presented, and that he did not correctly consider the defences of necessity and due diligence.

[10] The appeal judge evaluated the two grounds of appeal: (a) whether the verdict was unreasonable by reason of a lack of evidence; and (b) whether the trial judge erred in his analysis of the defences of necessity and due diligence.

[11] On the first point, the appeal judge concluded that the three elements of the offence had been proven beyond a reasonable doubt, not only by the testimony of officer Fortugno, but also by Mr. Desmeules' own testimony. The appeal judge considered the jurisprudence from Quebec which Mr. Desmeules relied on and concluded that they were not relevant or applicable. He concluded that the trial judge did not err in concluding that the Crown had proved each element of the offence beyond a reasonable doubt.

[12] In regards to the second ground of appeal, the appeal judge found that the trial judge could have established a clearer distinction between the defences of necessity and due diligence, but nevertheless concluded that the trial judge did not commit any error of law in his evaluation of the invoked defences. Specifically, the trial judge did not err neither when he concluded that a phone falling to the floor of a vehicle did not constitute an “immediate danger” within the meaning of the first element of the defence of necessity, nor when he found that there was no reasonable and legal alternative for Mr. Desmeules to retrieve his phone. On the issue of due diligence, the appeal judge the appeal judge concluded that the trial judge did not err by determining that Mr. Desmeules had not taken reasonable precautions to avoid the offence by placing the phone in a position where it was susceptible to falling.

[13] As a result, the appeal judge dismissed the appeal.

[14] The outline Mr. Desmeules' notice of appeal alleges:

• (a) an incorrect interpretation of the facts;
• (b) a distortion of the facts;
• (c) a palpable and overriding error;
• (d) a distortion and incorrect interpretation of the evidence;
• (e) an error of the trial judge in his analysis of an essential element;
• (f) incorrect interpretation of the evidence;
• (g) that the evidence was considered outside of its context; and
• (h) that the verdict was unreasonable.

[15] In his oral representations, Mr. Desmeules sought to introduce new facts which were brought to neither the trial judge nor the appeal judge's attention. Mr. Desmeules also re-iterated that any obstruction under a vehicle pedal created a danger which would have justified his actions. Of course, the trial judge concluded that, in the circumstances before him, this was not the case.

[16] Mr. Desmeules, while describing his grounds of appeal as errors of law, has in fact contested the factual conclusions of the trial judge. The problem that Mr. Desmeules faces is that, even on the basis of his own evidence, he had a telephone in his hand while he was driving on a busy road. I completely agree with this position and with the Court of Appeal for Ontario in its decision in /R v Kazemi, 2013 ONCA 585, where the Court declared:

[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.

…

[3] The respondent does not contest that when she was observed by the officer she was driving, and that her cellphone was a hand-held wireless communication device. The central issue on appeal is whether the respondent was “holding” the cellphone for the purposes of s. 78.1(1).

[15] The interpretation of “holding” offered by the appeal judge requires that there be some sustained physical holding. Any holding for a shorter period of time, with the accompanying risks to road safety and driver attention, would be exempt from the prohibition. With respect, I do not think this accords with the ordinary meaning of the word. Nor does it properly reflect the object of the HTA or best achieve the legislature's purpose in enacting the section. Moreover, such an interpretation would leave the uncertainty of how long the physical holding must be sustained to be caught by the provision. It would create the enforcement challenge of requiring continued observation of the driver for that period of time if the prohibition is to be effective.

¹⁾

[16] Section 78.1 of the Highway Traffic Act, RSO 1990, c H.8 of Ontario and s. 241.1(2) of The Traffic Safety Act, SS 2004, c T-18.1, are reproduced side-by-side below for ease of reference:

(My emphasis)

[18] The similarities between the two dispositions are obvious. The meaning of the word “hold” in s. 241.1 of The Traffic Safety Act has the same meaning as the word “hold” in the Highway Traffic Act of Ontario. According to the facts found by the trial judge, Mr. Desmeules was holding a phone while driving. The terms of the legislation are sufficiently generic to cover Mr. Desmeules' conduct. It is also clear that the driver does not have to activate the phone. The offence is established when someone holds, uses, manipulates or looks at their phone.

[19] Kazemi was cited with approval in R v Lukic, 2021 SKQB 221 and by the appeal judge in this case. Mr. Desmeules has relied on facts which were not in evidence and has also relied on decisions from Quebec, but I find that the decision of the Court of Appeal of Ontario and those from this province are more persuasive.

[20] The conviction flows from the factual findings of the trial judge. Once again, these facts were supported by the evidence. I do not find any disputable error in the appeal judge's analysis which would merit a hearing before this Court. No significant question of law was raised and I am not convinced that there is an undeniably meritorious situation which justifies leave to appeal. As a result, the application for leave to appeal is dismissed.

___Bardai j.a.“___
Bardai, j.a.