Cellphone Use While Driving: The Mistaken-Object Defence

Penal Law

A reminder: what section 443.1 prohibits

Section 443.1 of the Highway Safety Code prohibits a driver from using a cellphone or any other portable device designed to transmit or receive information or to be used for entertainment purposes. The law presumes that a driver who is holding the device in their hand, or in any other manner, is using it. As we explain in our article on cellphone use while driving, the penalty is a fine of $300 or $600, five demerit points and, for a repeat offence, an immediate licence suspension. Since the Court of Appeal’s decision in Rahme, analyzed in our article on the Rahme decision, merely holding your phone while a function is active is enough.

However, the presumption applies only if the object being held is in fact a device covered by the law. A notebook, a glasses case or a parking receipt does not fall into that category. The whole question then becomes what the officer actually saw.

What is the mistaken-object defence?

In Ville de Salaberry-de-Valleyfield v. Jalbert, 2021 QCCM 120, the driver maintained that, while stopped at a red light, he was holding a broken part of a support used to install drywall sheets, not a phone. Judge Sylvain Dorais defines the defence as follows:

[12] Confusion or mistake as to the person is a defence of negation, that is, a justification that invites the rejection of one or more essential elements of a charge. This defence asserts the defendant’s actual innocence by attempting to discredit the eyewitness to the offence. To do so, the defendant may cast doubt on both the witness’s memory and the witness’s perception of the events. [Our translation]

In other words, the driver is not pleading an excuse: he is asserting that he simply did not commit the offence and that the officer was mistaken about what he had in his hand. The court specifies what is needed for this defence to be considered:

[15] To accept this defence, the court must be satisfied that there is evidence linking the act observed by the eyewitness, in this case a police officer, to another object whose use is not prohibited by law. As with any other defence, the confusion must have an air of reality before the trial judge is required to consider it. [Our translation]

A reasonable doubt is enough

The driver does not have to prove, on a balance of probabilities, that the officer was mistaken.

It is enough that the driver’s version, supported by credible evidence, leaves a reasonable doubt

[23] Obviously, this is a penal matter and the defence has no burden to meet. Once the prosecution’s evidence has been presented, it is sufficient that this defence be capable of leaving a reasonable doubt in order to obtain an acquittal. The defendant therefore does not have to convince the court that the officer made an error; if a reasonable doubt remains in that respect, that will be sufficient. [Our translation]

[24] The court must nonetheless determine whether the confusion rests on relevant, sincere and reliable evidence that is sufficiently credible to be accepted. On the other hand, this defence cannot be based on mere speculation, conjecture or wholly hypothetical grounds that find no support in the evidence. [Our translation]

Step one: the quality of the officer’s observations

As soon as a mistaken-object defence is raised, the court must first scrutinize the conditions under which the officer perceived the offence, because the prosecution’s case rests entirely on the accuracy of those observations. Judge Dorais draws a parallel with the well-known dangers of eyewitness identification evidence:

[18] […] the courts have repeatedly recognized the risks associated with evidence that rests solely on an eyewitness. It is recognized that the trial judge must avoid giving weight to such evidence simply because the witness appears honest and sincere. There is no reason to create an exception to this rule for members of law enforcement. The trial judge must therefore guard against the inherent weakness of this type of evidence. [Our translation]

The court then lists the factors used to assess the probative value of the officer’s observations (para. 19):

Each of these factors is an opportunity for the defence: an offence report that describes neither the device, nor the duration of the observation, nor the viewing angle is far more vulnerable than a detailed report. In Jalbert, the officer was stationary, conducting an operation targeting cellphones, in clear weather, with no other vehicle on the road, and she described a black « iPhone-style » phone held with both hands at steering-wheel height while the driver was texting. The court found that report to be « complete, reliable and precise. »

Step two: the evidence about the object

The second step concerns the evidence presented by the driver. To pinpoint the source of the alleged confusion, the court proposes a grid of ten questions (para. 25):

• What is the object at the root of the alleged confusion?
• Did the defendant describe the object, or allow the court to see it by producing it or a photograph?
• How similar is the object to the prohibited device in its shape, size, colour or general appearance?
• Where was the vehicle when the driver had the object in hand?
• Where was the object in the vehicle?
• Why did the driver have this object with them?
• How was the driver holding the object?
• What use did the driver make of it?
• For how long did the driver have it in hand?
• What movements and gestures did the driver make with the object?

The court is careful to point out that the driver is not required to answer each of these questions: the parties remain masters of their own evidence (para. 26). But the more detailed the version and the more it is supported by concrete elements, the better its chances of being found credible. The amount of detail provided about the object, while not decisive, is part of the analysis (para. 24).

The mistaken-object defence begins the moment the ticket is issued: keep the object and photograph it

Why the defence failed in Jalbert

The driver had shown the part in court and filed it as an exhibit. The court nonetheless concluded that no rational mistake was possible between that object and a phone:

[36] […] It is impossible to reconcile the two objects so as to see a rational possibility of mistake that could leave a reasonable doubt in the defendant’s favour. […] There is an unbridgeable gap between, on the one hand, a driver texting at the wheel with both hands and, on the other, a motorist looking at a broken piece of equipment such as the one produced in evidence. [Our translation]

[37] To consider that this equipment could cause some confusion with a portable phone, one would have to completely exclude the silver metal rod that makes up the largest part of the object. All that would remain is a small black rectangular block. That part is much smaller than the cellphone Jalbert used in the courtroom. Moreover, the part has no component that could resemble a screen. [Our translation]

Three other weaknesses weighed in the balance. First, the driver had not shown the object to the officer during the stop and had not explained what gestures he was making with it, whereas the officer described a two-handed texting motion (para. 38). Second, the screenshots of his messages, meant to show that he had not texted that day, bore a date different from that of the offence and came from only one messaging application among others, which deprived them of any probative value (para. 39). Finally, the driver, who was self-represented, had not summoned the officer for cross-examination.

This last point deserves attention. In penal matters, the officer’s offence report stands in for testimony, and it is up to the defence to summon the officer if it wishes to confront them. The court recalls, relying on the rule in Browne v. Dunn, that a contradictory version should normally be put to the witness so that they can explain themselves:

[31] It should be added that even in statutory penal matters, where documentary evidence remains the rule, it would be desirable for mistaken-object defences to more serious offences to be subjected to appropriate judicial scrutiny. Applying this principle is all the more important where there is no other evidence that could reduce the dangers inherent in an offence that rests on a single eyewitness. [Our translation]

Absent cross-examination, the judge did not know what the officer would have said in response to the allegation of confusion, and her report was accepted as it stood. The driver was found guilty and ordered to pay the $300 fine.

What this means for the driver

The Jalbert decision does not close the door on the mistaken-object defence; it lays out how to use it. The defence succeeds when the object being held reasonably resembles a phone in size, colour and shape, when the driver coherently explains why they had it in hand and what they were doing with it, and when the officer’s observations have weaknesses: distance, angle, duration, no description of the device. Conversely, an object that looks nothing like a phone, a vague account or doubtful documents doom the defence.

A free information session with Me Alexandre Lacroix

A cellphone-while-driving ticket carries five demerit points and can lead to a licence suspension. If you were holding something other than a phone, the mistaken-object defence deserves serious consideration. Me Alexandre Lacroix offers a free information session to analyze the officer’s report, assess how plausible the confusion is and prepare your defence before the municipal court.

This blog post is provided for general informational purposes only and does not constitute legal advice. Every situation is unique — consult a legal professional for advice tailored to your case.