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Appeal Granted: New Trial Ordered

Mark Cardy

City: Napanee, ON
Our Client (Appellant): Mr. M.
Respondent: The Crown (Her Majesty the Queen)
Case Type: Appeal of a Drive Hand-held Communication Device Conviction
Paralegal: Mark W. Cardy

Background: Mr. M. was a long-haul transport truck driver who spends more time on the road than he does at his own home.  While passing by the town of Greater Napanee in his truck on Highway 401, he was pulled over by an OPP officer.  The officer approached Mr. M. and notified him that he had seen Mr. M. holding a cell-phone in his right hand.  Utterly surprised by this, Mr. M. objected, indicating that he was not holding a phone and that he has Bluetooth capability so he never has to touch his phone while driving.  The officer indicated that while he was travelling in the left-lane behind Mr. M. (who was in the right lane) he could see into the truck through the use of the side-mirror.  The officer further indicated that while his police SUV pulled alongside Mr. M.’s truck, he could see up into the cab, across his person, and could see the phone being held in the right hand. Mr. M. was subsequently charged with Drive Hand-held Communication Device, or “distracted driving,” contrary to section 78.1(1) of the Ontario Highway Traffic Act.

Mr. M. had a trial in the Ontario Court of Justice – Provincial Offences division.  At trial, the officer gave evidence as to what he had seen on the date in question.  During cross-examination, the trial paralegal highlighted some significant holes in the story of the charging officer as to what he could have seen from his vantage point, and whether he was actually able to see anything at all.  The story of the officer, in the eyes of the defence, fell apart.  Mr. M. took the stand to provide evidence to the contrary. In his testimony, he denied holding a cell-phone and provided evidence that he was equipped at the time with a Bluetooth headset that all drivers at his company are equipped with – he did not have a need to touch the phone. He also provided some additional evidence as to whether the officer could see up and into the cab of the truck while driving beside him.

The decision of the presiding Justice of the Peace was that she was satisfied beyond a reasonable doubt as to what the officer saw on the date in question, and that his credibility was not damaged since his story remained consistent. Mr. M. was convicted of the offence.

Goal: Mr. M. was innocent and wanted to appeal the decision rendered by the trial Justice of the Peace. He contacted Mr. Mark Cardy from our firm who evaluated the merit of the appeal and whether there were grounds to proceed. While we would ask for an acquittal, if a new trial was ordered, we would accept that as a victory as well.

Strategy: Upon the review of the trial transcripts, Mr. Cardy determined that this appeal would be one where the Appellant (Mr. M.) may appeal solely on an error of fact.  Generally, a strong appeal addresses an error of law where the trier of fact misinterprets or misapplies the law in accepting a series of facts and rendering the appropriate judgment. Appeals by way of an error of fact alone can be up-hill battles.  However, Mr. Cardy would submit an argument that the trial Justice of the Peace erred in accepting evidence of the charging officer that had not actually been put into evidence by that witness.  Mr. Cardy would ask whether the court erred in awarding significant weight to the testimony of the officer, considering the issue that the only witness for the Crown did not actually testify to the adopted set of facts that the trial Justice of the Peace agreed with while convicting Mr. M.

Verdict: Following submissions made by both Mr. Cardy and the Crown, the presiding Judge who heard arguments agreed with the Appellant, indicating that the trial Justice of the Peace erred in accepting a series of facts that had not been put into evidence by the Crown and that the Crown’s witness was anything but consistent.  A new trial was ordered, overturning his conviction rendered at the time and place set for the original trial.

Please Note: Past results not predictive of future results.

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