Crown does not have to prove a cellphone is working to get a conviction for using a cellphone while driving

R. v. Pizzurro, 2013 ONCA 584 holds the Crown does not have to prove whether a hand-held wireless communication device is working or not to get a conviction under the HTA for using a cellphone while driving:

[6]          The respondent has never disputed that the cell phone he was observed to have in his hand while driving was a hand-held wireless communication device.  The sole issue is whether the Crown must prove that the cell phone was capable of receiving or transmitting in order to convict him under s. 78.1(1) of the HTA.

[7]          For the following reasons, I conclude that the Crown need not do so.

[8]          Section 78.1(1) applies to two kinds of devices: hand-held wireless communication devices (that is, cell phones) and other devices prescribed by regulation.  Section 78.1(7) gives the Minister the power to make regulations prescribing devices for the purposes of s. 78.1(1).

[9]          In my view, the requirement that the device be capable of receiving or transmitting telephone communications, electronic data, mail or text messages applies to prescribed devices but not to cell phones.  In its ordinary meaning, the wording of s. 78.1(1) provides that it is prescribed devices that must have that capability.  This constitutes the legislature's direction to the Minister to ensure that, in future, the devices prescribed by regulation be of a kind that have this capability.  On the other hand, cell phones are well known as a kind of device that are capable of receiving or transmitting.  No similar requirement is needed for them. 

[10]       Moreover, to impose the requirement that a cell phone held by a driver while driving was capable of receiving or transmitting would be unreasonable both for enforcement and for prosecution.  The legislature could not have intended that result. 

[11]       The significant challenge for law enforcement is readily apparent.  There can be no doubt that s. 78.1(1) was targeted principally at cell phones.  Observing a driver holding or using a cell phone while driving would not be enough if this requirement existed.  For each case, the police would also have to find ways to immediately acquire and test the cell phone in order to determine that it was capable of receiving or transmitting.  I do not think that the legislature would have intended such a burden to be imposed by a section that is otherwise designed to operate in a simple and straightforward way. 

[12]       It would also be unreasonable for prosecution.  Where for example the charge is using a cell phone while driving, to require the Crown, once it has proven the use of a cell phone to communicate, to also prove that the cell phone that was being used to communicate is capable of doing so is unnecessary.  It would be unreasonable to read s. 78.1(1) to impose such a burden. 

[13]       Finally, the legislative purpose of s. 78.1(1) must be considered.  In R. v. Kazemi, (issued simultaneously with these reasons) this court described that purpose as ensuring road safety and driver attentiveness to driving.  It is best served by applying the requirement that the device be capable of receiving or transmitting only to prescribed devices, but not to cell phones. Road safety and driver attentiveness to driving are best achieved by entirely prohibiting a driver from holding or using a cell phone while driving.  To hold out the possibility that the driver may escape the prohibition because the cell phone is not shown to be capable of communicating, however temporarily, is to tempt the driver to a course of conduct that risks undermining these objectives.

[14]       For these reasons I conclude that s. 78.1(1) of the HTA does not require that the cell phone held or used by a driver while driving be shown to be capable of receiving or transmitting telephone communications, electronic data, mail or text messages.