“Hand Held Communication Device Ticket Mixup”

I got a ticket last February for holding an iPod Touch while stopped for a traffic light. I was using a GPS app on iPod Touch 4G, and I was charged under 78.1(1) which is for hand held wireless communication device, but clearly an iPod Touch falls under section 78.1(2) as it is an entertainment device and not a communication device. Is this something that I can bring up during my trial? My trial is set for next month, and if I don't want to attend it, do I still have the option to pay this ticket online?

Thanks in advance for any suggestions and help.

It might be possible to fight the charge based on the incorrect section. That being said, I think the Crown could argue an iPod is capable of receiving data, e-mail, etc., so subsection 1 could still apply.

You are very correct in that it has the WiFi feature which can be used to access data, but this is useless in a vehicle correct?

My main question is, if I could somehow prove that I was charged under the wrong subsection ((1) instead of (2)) will this be enough for JP to drop the charge? Or could they change the subsection there and then, and charge me under the correct section?

Any feedback is greatly appreciated.

steveb wrote:You are very correct in that it has the WiFi feature which can be used to access data, but this is useless in a vehicle correct?

I'm not sure if there's any case law that lays out what "capable" means. Is it sufficient to state that the device has hardware capable of such a function? Or does the Crown need to show that it's reasonable to believe it could be used in such a capacity on the roadway? It's an interesting argument.

Can I still pay it online, if I don't want to skip work?

For anyone reading this thread in the future...

I just won my case two days ago based on this same scenario.

I was able to provide my cell phone records that showed no texting or browser activity.

I submitted R. v. Kazemi which challenges the word "holding" in 78.1 and that it should not be taken as literally as they are right now. It was a decision made at an appeals court which means it is binding and should influence a Justice of the Peace's decision in traffic court.

Look up this case on www.canlii.org

I also submitted R. v. Osman which is a case where the person claims to have been charged under the wrong subsection.\

All this being said, the Justice of the Peace decided to dismiss the case. I have to thank Kazemi for setting some precedence here.

It's ridiculous how they are just blindingly handing out these tickets. And people are made out to be guilty instead of proven innocent.

Feel free to PM me if you'd like to ask me any questions. I'm just a regular guy who Googled his way out of a texting ticket. I found alot of info along the way that made me fully understand the process of fighting tickets. Can't wait to help out my buddies in the future. I had a prosecutor that was taking his time in giving me the information I needed as part of my disclosure request. There's nothing like quoting him Section 7 of the Charter of Rights and Freedom to get what you want in a couple of hours...

I'm hoping my case will help set precedence just like Kazemi's. It's time that lawmakers rewrite this law so that it makes more sense.