Mis-identified Vehicle For Talking On Cell Phone Charge

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High Authority
High Authority
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Mis-identified Vehicle For Talking On Cell Phone Charge

by: jsherk on
Mon Jun 17, 2013 12:36 pm


Was hypothetically charged with 78.1(1)

Code: Select all

Hand-held devices prohibited

Wireless communication devices

78.1 (1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.

So during cross-examination of officer I showed that the vehicle was a 1994 Sunbird and not a 1994 Sunfire as he had testified. During cross-examination I even asked if he identified the make and model of vehicle by comparing what was on the vehicle versus what was on registration and he said yes and confirmed that it was a Sunfire. I then submitted pictures of my vehicle and it clearly says Sunbird not Sunfire and the Crown even conceded that it was a Sunbird and not a Sunfire.

However the Crown then said its not "vehicle offence" but a "moving offence" and the model does not matter and the Justice agreed. I stated in closing that the officer grossly mis-identified the vechicle and the charges should be dropped, but Justice still found me guilty.

So my questions are:

(1) What is the difference between a vehicle offence and moving offence? I cannot seem to find any definitions that would identify what this means.

(2) Is speeding considered a vehicle offence or a moving offence?

(3) If the charge states "drive a motor vehicle" would that not mean that the officer has to correctly identify the vehicle?

(4) Is there any case law anybody can suggest that shows the officer must correctly identify the vehicle (even if not related to talking on cell phone specifically)?


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Simon Borys
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by: Simon Borys on
Sat Jun 22, 2013 8:09 am

One of the elements of the offence for using cell phone (as for any other moving or non-moving violation) is that the defending was driving a "motor vehicle" as defined in s. 1 of the Highway Traffic Act. The officer's mis-identification or imprecise identification (i.e. "grey car") of the motor vehicle may go to the weight of the officer's evidence, but it doesn't necessarily preclude the Justice from finding that the defendant was driving a motor vehicle. How much weight the Justice should give such evidence is a product of your advocacy skills...which is why lawyers are often worth hiring, because they've spent years cultivating said skills.

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