Offence Number 6181901 Z

Ontario
ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Prosecutor

-and-

MD WASHIM AHMED
Defendant

FACTUM OF THE DEFENDANT

Md Washim Ahmed
1065 Ramsey Crescent, Apt #801
Ottawa, Ontario, K2B 8A1
Phone:613-701-2249
Cell: 647-657-5260
Email: washim01@gmail.com
Self-represented

TO:
Michael Gauthey
City of Toronto
Phone: 416-392-7412
Email: mgauthe@toronto.ca
Lawyer for the Crown

TABLE OF CONTANTS
PART I Overview ,.. 2
PART II Facts , 3
PART III Issues ........6
PART IV Law and Arguments..7
PART V Orders ..... 16

PART I - OVERVIEW:
1. The issue in dispute is whether Md Washim Ahmed [hereinafter, the defendant] held or
used a handheld communication device contrary to s.78.1(1) of the Highway Traffic Act
[hereinafter the Act]. The defendant also seeks a clarification in respect of whether
s.78.1 (1) of the Act creates an absolute liability offence.
2. The defendant was new in the town and used Global Positioning System (GPS) built in
his Samsung Galaxy S4 phone powered by Google Map [hereinafter the GPS device]
for directional purposes. He was charged under s.78.1 (1) of the Act for using handheld
communication device contrary to the Act.
3. The defendant testified that he was not holding the GPS device but making incidental
touches or pressing the buttons to accept or reject directional notifications. He was not
holding the device by his hands because it was securely attached to his car and connected
to a LG Bluetooth headphone, which allowed him to use the device in hands-free mode.

4. The defendant submits that none of his conduct[s] is contrary to the Act or falls within the
scope of the offence defined under s.78.1 (1) of the Act. The defendant argues that the
Crown fails to establish that there is an offence or defendant breached any of the
provisions of the Act beyond any reasonable doubt.
5.

In alternative, the defendant argues that if his conduct[s] is found in contravention of the
Act, he still should not be convicted because the offence under the aforementioned
provision of the Act is a strict liability offence, which entitles him to a due diligence
defence. The defendant submits that he is innocent because he exercised his due diligence
and took all reasonable care to avoid any breach of the law in that circumstance.

PART II - FACTS:
6. The defendant is a LLM student at Osgoode Professional Development [hereinafter
OPD], Osgoode Hall Law School located on 1 Dundas Street West, Toronto, M5G 1Z3.

Reference: Ahmed Affidavid at para 1.

7. On August 6 2014, the defendant participated in his orientation event held at 1 Dundas
Street West from which he was required to go to Keele Campus of York University
located on 4700 Keele Street, Toronto, M3J 1P3.

Reference: Ahmed Affidavid at para 2.

8. The defendant was new to the City of Toronto and did not know the routes that he should
follow to reach at 4700 Keele Street. He took assistance of the GPS device, which was
affixed to the wall of the car underneath the radio controller. A copy of the photographic
evidence indicating the location of the phone has been submitted to the Court and added
as an appendix to the court file. The phone was also connected to a LG Bluetooth wireless
headphone making the phone operable without holding at hand. The aforementioned LG
Bluetooth wireless headphone has been submitted to the Court for examination and added
as an appendix.
Reference: Ahmed Affidavid at para 3-4.

9. On or about 1:30 pm, the defendant was driving on the Bay Street towards North while
following the direction provided by the GPS device. The road was very crowded due to
regular traffic, construction and maintenance work. The defendant on different occasion
had to slow down the car because of the condition of the road.

Reference: Ahmed Affidavid at para 5.

10. Occasionally, the defendant had to lower down his head to look at the device to follow the
direction. On one or two occasions the defendant had to touch the screen of the GPS
device in order to accept or reject directional notifications and route alterations while the
GPS device is attached to the car. Those touches were incidental and did not last longer
than a few seconds.
Reference: Ahmed Affidavid at para 7.

11. On multiple occasions, the defendant checked his rear and side mirror as regular driving
protocol but did not notice any police car following him until he reached close to Bay and
Wellesley Street. The defendant noticed a police car flashing emergency lights for him to
pull over. The defendant pulled over on Bay and Wellesley Street, curb lane.

Reference: Ahmed Affidavid at para 8.

12. The police officer identified him as Allan Hung [hereinafter officer Hung] approached
to the defendants car and asked for his license and registration after informing the
defendant that the conversation was being recorded. The defendant provided the
documents as demanded. About 10 minutes later, the police officer returned to the
defendants car giving him a ticket for driving while handling communication device.

Reference: Ahmed Affidavid at para 9.

13. The defendant informed the Police Officer that he was new in Toronto and taking
assistance from the GPS device but was not handling it. He requested officer Hung
requested him to exercise his discretion to not to give him the ticket.

Reference: Ahmed Affidavid at para 10.

14. There was another female police officer accompanying officer Hung who informed the
defendant that his behavior indicated that he was using a handheld communication device.
She informed the defendant that he was driving slowly and his head was moving up and
down, a very typical behavior of a driver using handheld communication device.
However, none of the officer mentioned that they saw him holding or typing on a device
during this conversation.

Reference: Ahmed Affidavid at para 11.

15. The defendant showed officer Hung that the phone was connected to the Bluetooth
warless device and not held by hand. The defendant requested the police officer to include
the finding of LG Bluetooth warless headphone to his notes for the purpose of discovery.
However, officer Hung did not include the LG Bluetooth warless headphone in his notes.

Reference: Ahmed Affidavid at para 12.

PART III - ISSUE:

16. Whether defendants incidental touch to a handheld communication device, which is

affixed to the car and only used for directional purposes constitute an offence under s.78.1
(1) of the Act?

17. Whether the wording and courts interpretation of s.78.1 (1) meet the threshold of an
absolute liability offence or should it be treated as strict liability offence like any other
regulatory offence?

18. If the defendants conduct is found in violation of the Act, and the offence under s.78.1
(1) of the Act is an offence of strict liability, is the court convinced that the defendant has
established sufficient arguments and evidence to be accorded with the defense of due
diligence?

PART IV - LAW AND ARGUMENTS:

The Offence and Exemptions:

19. Regardless of whether the offence is absolute or strict liability, in order to establish a
violation of the Act in this circumstance, the Crown must establish:
a) There is an offence created by the Highway Traffic Act;
b) The defendant breached the provision of the Act or his conduct[s] falls within
the scope of the prohibited act beyond a reasonable doubt;
c) The defendants conduct[s] does not fall within the scope of any of the
statutory or regulatory exemptions.

20. If the offence is an offence of absolute liability, the defendant will virtually have no
defense except the defense of necessity. However, if the offence is of strict liability, the
defendant is entitled to due diligence defense.

Reference: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299; Kent

Roach, Criminal Law 5th ed, (Toronto: Irving Law Inc, 2012)
at 222.

21. The onus is on the Crown to prove the actus reus of the offence beyond any reasonable
doubt. The standard is explained by the Supreme Court of Canada as follows:

First, if you believe the evidence of the accused, obviously you must acquit
Second, if you do not believe the testimony of the accused but you are left in
reasonable doubt by it, you must acquit. Third, even if you are not left in
doubt by the evidence of the accused, you must ask yourself whether, on the
basis of the evidence, which you do accept, you are convinced beyond a
reasonable doubt by that evidence of the guilt of the accused.

Reference: R v W(D), [1991] 1 SCR 742

22. Section 78.1 (1) of the Highway Traffic Act prohibits everyone holding or using a handheld wireless communication device or other prescribed device that is capable of
receiving or transmitting telephone communications, electronic data, mail or text
messages.

23. However, subsections (3) of s.78.1 provides an exemption and allows a person to drive a
motor vehicle on a highway while using a device described in s.78.1 (1) in hands-free
mode.

Reference: Highway Traffic Act, RSO 1990, c H8.

24. There is no offence under the Act that prohibits touching or pressing the button of a
communication device while driving. The Act prohibits only holding and/or using, which
have separate and independent meanings and prohibit only those actions that fall within
the definition of the word holding or using.

25. The word holding is defined as holding in ones hand; to hold as to have grip on or
to support in or with the hands. The duration of time or intention to use are not relevant
in considering whether or not an act falls within the scope of holding under s.78.1 (1) of
the Act.
Reference: R v Kazemi, 2013 ONCA 585 at para 11.

26. The incidental touch made by the defendant to correct or follow the GPS direction does
not fall within the scope of holding because the device was completely free of his hands
and attached to the car. The device was also connected to LG Bluetooth warless
headphone worn by the defendant making him able to use the device without holding by
hand.

27. Therefore, the use and incidental touch do not fall within the scope of the prohibition
under the term using because of statutory exemptions under subsections (3) of the Act.
The word hands-free mode was defined as:

hands-free mode in this age of digital technology does not simply mean
without hands. Rather, the term refers to a manufacturers designed
adaptation, which permits the cell phone to be used without being held by
the operator and without physically entering data such as phone
numbers. Most units (either portable or built into the car) are activated by
the drivers voice so the driver speaks and hears the callers voice through
a speaker.

Reference: R v Whalen, 2014 ONCJ 233 (CanLII) at para 17.

28. Ontario Regulations 366/09 [hereinafter the Regulations] provide further exemption to
the use of devices that display road and weather information on the conditions that the
display screen of the computer, mobile data terminal or other device is placed securely in
or mounted to the motor vehicle so that it does not move while the vehicle is in motion.

Reference: Display Screens and Hand-held Devices, O. Reg.

366/09, s. 7; O. Reg. 366/09, s. 7.

29. The Regulations exempt any incidental touch or press of a button on a hand-held wireless
communication device to make, answer or end a cell phone call or to transmit or receive
voice communication on a two-way radio while driving if the device is placed securely in
or mounted to the motor vehicle so that it does not move while the vehicle is in motion

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and the driver can see it at a quick glance and easily reach it without adjusting his or her
driving position.
Reference: O. Reg. 366/09, s. 14 (1).
30. Moreover, the Regulations permits a person to drive a motor vehicle on a highway while
pressing a button on a device that is worn on his or her head or hung over or placed inside
his or her ear or is attached to his or her clothing and is linked to a hand-held wireless
communication device to make, answer or end a cell phone call or to transmit or receive
voice communication on a two-way radio or a hand microphone or portable radio.

Reference: O. Reg. 366/09, s. 14 (2)

31. The defendants conducts clearly comply with the statutory and regulatory
requirements for following reasons:
a) There is no offence under Highway Traffic Act that prohibits incidental touch
or pressing of a button on a GPS device.
b) Touching does not fall within the meaning of holding or using.
c) The defendant was using the GPS device for directional purpose, which is
permitted by the Act and Regulations.
d) The GPS device was securely attached to the car as prescribed by the
Regulations.
e) The defendant was using the GPS device in hands-free mode as prescribed by
the Act and Regulations.

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32. Furthermore, the Crown also fails to prove that the defendant held or used the
communication device contrary to the Act beyond any reasonable doubt. Following points
should be taken into consideration:
a) During the cross examination, officer Hung admitted that it is possible that the
defendants head was moving up and down for reasons other than holding or
using a communication device.
b) The defendant testified that that his head was moving because he was following
the direction of the GPS, which was attached to his car, but was not holding or
using the phone.
c) Officer Hung testified (also included in the disclosure) that he saw the defendant
typing on a black communication device. However, neither officer Hung nor the
accompanying officer said anything in respect of seeing the defendant holding
the GPS device during their conversation with the defendant after he was pulled
over.

Reference: Disclosure at para 3.

d. The defendant submits to this Court that it is absolutely possible to mistake any
black object such as a sunglass or wallet as a communication device especially,
while driving at a busy Downtown Street.
e. The statement made by the accompanying officer as well as the disclosure also
suggest that the defendant was pulled over due to the suspicion created by the

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movement of his head, which was in their opinion a typical behavior of a driver
holding or using a communication device.
f. In this circumstance, a reasonable person would ask a question: why a defendant
who is knowledgeable of the law, respectful to it, maintains a clean driving record
with zero infraction and has access to hands-free technology would hold or use a
communication device contrary to the law when he is completely capable of using it
in a safe, comfortable and legal way?
g. Considering the evidence and arguments presented above, a reasonable person
would sustain reasonable doubts with respect to whether the defendant was actually
holding or using the device for the purpose of s.78.1 (1).

Reference: Transcripts of April 31st Trial; Affidavid of Ahmed

and Disclosure.

Absolute or Strict Liability:

33. There is a general common law presumption against absolute liability with respect to
regulatory offences. The Supreme Court of Canada held that all regulatory offences
should be treated as strict liability offence unless there is a clear indication from the
legislature that either absolute liability or subjective mens rea is intended.

Reference: R. v. Sault Ste. Marie [1978] 2 SCR 1299.

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34. Factors that can be taken into consideration in determining whether the legislature created
an absolute liability offence include subject matter and regulatory pattern of the
legislation, the language used to define the offence and the penalties attached to it.
Reference: Kent Roach, Criminal Law 5th ed (Toronto, Irving
Law Inc, 2012) at 223.

35. There is no explicit wording in the provision, which suggests that the legislature intended
to create an absolute liability offence. Although the legislatures demonstrated a serious
concern over the increasing rate of accidents caused by the use of communication devices
during driving, it is impracticable to hold that the legislatures intended an absolute
prohibition due to the evolving nature and use of technology. The uses of modern-day
communication devices are no longer limited to texting or talking. Some of their
dominant uses include finding direction, getting updates on weather and road conditions,
which are not only legitimate but also necessary for a driver.
36. Considering the necessity of those devices, the legislature provided various exemptions
under the statute and regulations. These exemptions clearly indicate the purpose of the
legislatures that no absolute prohibition is intended and thus, they should be treated as
strict liability offences.
37. The courts have never considered prohibition on communication devices under s.78.1 (1)
as an absolute liability offence but always treated as strict liability offence. In R v Ilyk, the
Ontario Court of Justice held:
In regard to the onus and burden of proof, the Court is satisfied that this
regulatory offence is not an absolute liability offence or a mens rea offence.
It meets the requirement that characterize a strict liability offence,
therefore, this offence places the onus on the Prosecution to prove its case
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beyond a reasonable doubt. It also opens the opportunity to the defendant

to present a defence and avoid liability if the Court is satisfied, on a
balance of probabilities, that the defendant acted with due diligence and
took all reasonable care in all circumstances. The defence will be also
available if the defendant reasonably believed in a mistaken set of fact
which, if to, would render the act or its omission innocent.

Reference: R v Ilyk [2014] OJ No 3796 at para 2

38. With respect to the defence, MacKay J.A. of the Supreme Court of Canada, speaking for
the Court, held that in the case of an offence of strict liability it has been held to be a
defence if it is found that the defendant honestly believed on reasonable grounds in a state
of facts which, if true, would render his act an innocent one.

Reference: R v Custeau [1958], 120 CCC 246 at p 251

39. The fault requirement of a strict liability offence is negligence. While the Crown must
prove the acus reus beyond a reasonable doubt, the Crown is not required to prove it on a
standard of beyond reasonable doubt. Once the required wrongful act has been proven, the
negligence is assumed and the onus shifts on to the defendant to demonstrate that he or
she took reasonable care or acted under reasonable mistake of fact on a balance of
probability.
Reference: R v Sault Ste Marie [1978] 2 SCR 1299
40. It was pointed out earlier that the conduct of the defendant does not fall within the scope
of s.78.1 (1) and there are sufficient reasons to doubt that defendant has violated the
provision by holding or using the device. However, even if the Court if convinced that the

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Crown has established the required fault element[s], the defendant should still be found
innocent due to his exercise of due diligence.
41. The defendant has exercised all reasonable care to avoid the breach of the Act as it has
been established that the device was attached to the car and used in hands-free mode for
essential driving related purposes which are legitimate and exempted by the Act and
Regulations.

PART V - ORDER REQUESTED

42. The defendant respectfully request that this charge for hand-held communication device
under s.78.1 (1) be quashed. The court is also requested to rule that the offence under
s.78.1 (1) is a strict liability offence in order to remove ambiguity for future references.

SCHEDULE A
Highway Traffic Act, RSO 1990, c H8,

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.
Entertainment devices
(2) No person shall drive a motor vehicle on a highway while holding or using a handheld electronic entertainment device or other prescribed device the primary use of which is
unrelated to the safe operation of the motor vehicle. 2009, c. 4, s. 2.
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Hands-free mode allowed

(3) Despite subsections (1) and (2), a person may drive a motor vehicle on a highway
while using a device described in those subsections in hands-free mode. 2009, c. 4, s. 2.
Exceptions
(4) Subsection (1) does not apply to,
(a) the driver of an ambulance, fire department vehicle or police department vehicle;
(b) any other prescribed person or class of persons;
(c) a person holding or using a device prescribed for the purpose of this subsection; or
(d) a person engaged in a prescribed activity or in prescribed conditions or
circumstances. 2009, c. 4, s. 2.
Same
(5) Subsection (1) does not apply in respect of the use of a device to contact
ambulance, police or fire department emergency services. 2009, c. 4, s. 2.
Same
(6) Subsections (1) and (2) do not apply if all of the following conditions are met:
1. The motor vehicle is off the roadway or is lawfully parked on the roadway.
2. The motor vehicle is not in motion.
3. The motor vehicle is not impeding traffic. 2009, c. 4, s. 2.
Regulations
(7) The Minister may make regulations,
(a) prescribing devices for the purpose of subsections (1) and (2);
(b) prescribing persons, classes of persons, devices, activities, conditions and
circumstances for the purpose of subsection (4). 2009, c. 4, s. 2.

SCHEDULE B
ONTARIO REGULATION 366/09
DISPLAY SCREENS AND HAND-HELD DEVICES
Exempt devices
7. The display screens of the following devices may be visible to any driver in a motor
vehicle driven on a highway:
1. A device that displays,

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i. information on the conditions, use and immediate environment of the vehicle,

or
ii. information on road or weather conditions.
2. An ignition interlock device.
3. A car audio control that displays only text or static images.
4. A hand-held device that displays only text or static images and is connected
directly into and operates using the audio system controls of the motor
vehicle. O. Reg. 366/09, s. 7.
Requirement that display screens be secure
8. The exemptions in sections 2, 3, 4, 5, 6 and 7 apply only if the display screen of the
computer, mobile data terminal or other device is placed securely in or mounted to the motor
vehicle so that it does not move while the vehicle is in motion. O. Reg. 366/09, s. 8.
Exemption for pressing buttons
14. (1) A person may drive a motor vehicle on a highway while pressing a button on
a hand-held wireless communication device to make, answer or end a cell phone call or to
transmit or receive voice communication on a two-way radio if the device is placed securely
in or mounted to the motor vehicle so that it does not move while the vehicle is in motion
and the driver can see it at a quick glance and easily reach it without adjusting his or her
driving position. O. Reg. 366/09, s. 14 (1).
(2) A person may drive a motor vehicle on a highway while pressing a button on
a device that is worn on his or her head or hung over or placed inside his or her ear or is
attached to his or her clothing and is linked to a hand-held wireless communication device to
make, answer or end a cell phone call or to transmit or receive voice communication on a
two-way radio or a hand microphone or portable radio. O. Reg. 366/09, s. 14 (2).

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