Help With Cell Ticket - 78.1(1) Received 11/22/2018

I received a ticket Nov 22/18 for using my cellphone while driving. I was told when pulled over that their was a plain clothes spotter who saw me using my phone, and he radioed the car that pulled me over. I told the officer I wasn't using my phone, that my card has Android auto built into it and I habitually use it. He said he couldn't discuss it as it wasn't him that saw the use, and that if I wasn't using it, I should fight the ticket.

Filed for a trial and got my disclosure today.

Notes of the spotter are quite clear and detailed as to his position to my vehicle, my vehicle, the intersection in question, etc. The entire first page explains where he was and why he chose that location. The second page:

"I observed a driver with what I believed to be a cell phone in hand. I watched the vehicle accelerate from a stopped position and continue westbound through the intersection. I had an unobstructed view of the driver as no other vehicles was in my line of sight.

Used radio to communicate to marked car:

Westbound, Lane 1, [my car], [my plate], male driver, cell phone in right hand texting or scrolling as he passed through the intersection."

[vehicle make and model], [lic plate], m/w cell phone in right hand texting or scrolling as passed thru intersection.

(abbreviated)

Received call from spotter, followed car and pulled over, driver had no DL, insurance, or registration. Gave him ticket. The male was polite with police.

I never stopped at the intersection. I see from the spotting officers notes that in his full report he says he saw me stop and leave, and his written notes make no mention of stopping just that I 'passed through' the intersection. I recall this specifically because the officer who pulled me over said an officer saw me using my phone while stopped and I knew the last intersection I stopped at because I verbally setup my GPS for my location while at the intersection, then drove until I was pulled over (about 3km from the red light where I actually did stop).

From what I've read with these tickets your only chance is if the officer doesn't show or they totally blow their notes. In the event the officer does show up (I assume both have to? Or just the spotter perhaps?) will I get anywhere with the discrepancy between his written notes and electronic notes? Perhaps I'm grasping.

Thoughts?

Appreciate any feedback!

Differences between handwritten notes and electronic notes are meaningless. Notes are simply that; they are not evidence.

If you can poke holes in the spotter's story (you hadn't been stopped, ask how he identified that you were holding a cellphone, what type of phone he thinks he saw, etc.), you may have a chance.

The disclosure only states that the officer "believed to be" a cell phone in the driver's hand. If it goes to court you might want to try and reference Regina v. Mina , (March 22, 2016 Ont. C.J.). The judge in that case stated that when the police officer testified that the item being held by the driver “appeared to be a cell phone”, the trial Justice of the Peace should have ended the trial at that point and dismissed the charge as there was reasonable doubt that did not call for an answer.