Judge says South Asian driver’s means of demonstrating his innocence was “somewhat inventive”

 

BY RATTAN MALL

 

“I would estimate that I have heard the same explanation from male drivers at least a dozen times in the past couple of years and am somewhat skeptical when I hear this defence from male drivers who claim they were holding their wallet to their ear.  It is a practice that holds no logic.”
 
Provincial Court Judge Hunter W. Gordon noted the above in his reasons for judgment released last month in Victoria in a case involving Bhavjit Thandi.
 
Thandi was charged on July 31 last year with driving on a highway while using an electronic device. His defence was that it was his wallet that was in his right hand and not a cell phone.
 
The judge noted: “His means of demonstrating his innocence is somewhat inventive.”

 

CONSTABLE LeBlanc, an experienced Victoria Police Department police officer who had been assigned to traffic enforcement with the Capital Regional District Integrated Road Safety Unit (IRSU) for at least three years, told the judge that while conducting a cell phone / seatbelt monitoring operation in Saanich on July 31, 2012, with a Pentax spotting scope at 20X magnification, on a sunny and clear day at about 3:18 p.m., he observed a black Jaguar with two males in the front seats.  The driver had his right hand to his right ear and was holding in his fingers a black object that appeared to him to be a cell phone.  He could see a shiny surface and blue light shining from the surface of the object.  The driver’s lips were moving. He said he made this observation for about eight seconds.  As he signaled the driver to stop, he noticed the driver bring his right hand down sharply.
 
LeBlanc said that when he approached the driver’s window and told him he was being stopped for using an electronic device while driving, the driver did not say anything and he appeared to have an expression of resignation on his face.
 
When the officer returned to the vehicle to serve the ticket, Thandi told LeBlanc that it was not his cell he was holding but his wallet in front of him and that he was putting his gym card into it. Thandi showed the wallet to the officer. Thandi agreed with the officer’s testimony of the conversation.  LeBlanc said the wallet was not shiny nor did it have a reflective surface, as the object he saw did.

 

A few minutes after LeBlanc had served the ticket on Thandi and was writing his notes about the incident, he realized that another officer on the team in the same location, Constable Whitbread, had stopped what appeared to be the same vehicle with the same two males in the front.  He walked up to the vehicle and could hear a dialogue similar to what he had had with the driver.
 
He concluded that Thandi had set up a mock drive-by to discredit the basis of the ticket he had issued him a few minutes before.  He also became aware that Thandi was recording the conversation.
 
Whitbread, a West Shore RCMP officer also assigned to IRSU who had been at that time an officer for nearly six years, testified that he noted a black vehicle with two males approaching him. The driver was holding a black object cupped in his right hand.  He held it to his right ear, pulled it away and then put it back to his ear.  He could see the driver’s lips moving.  Whitbread suspected the driver was holding a cell phone in his hand.
 
He signaled the driver to pull to stop.  As the driver did so, he rolled down his window, held his wallet out to the officer and said, “Look, it’s my wallet.  The other officer got it wrong.”  The driver said he was coming from the gym and was very upset and was berating the other officer for issuing him the ticket.  Whitbread noted the wallet was black and grey and small and could be held in a portion of his hand.  He was satisfied that what he had observed in Thandi’s hand was his wallet.  He also was aware from the conversation that it was being videoed and recorded on a cell phone by the passenger.

 

IN his analysis, the judge noted: “It is not an issue of whether Mr. Thandi had a cell phone or a wallet to his ear.  It is an issue of whether Mr. Thandi had his right hand to his right ear, as Cst. LeBlanc says he clearly saw, or he had his right hand in front of him the whole time, as Mr. Thandi says he did.  Everything else falls from that finding.  It is an issue of credibility.”
 
He added: “I accept the evidence of Cst. LeBlanc in its entirety.  Where there is a difference in the testimony in a crucial respect between Cst. LeBlanc and Mr. Thandi, I accept the evidence of the former.”
 
The judge noted: “In my view, an experienced traffic enforcement police officer would neither mistake nor misinterpret what he was seeing between a hand at the right ear and a hand being held out in front of the driver and the lips of the driver moving, at what would have been at most the equivalent of 20 to 25 metres because of the scope.  Further, Mr. Thandi only made his claim that he was holding his wallet and not a cell phone when Cst. LeBlanc returned to his vehicle after writing the ticket and not immediately when initially stopped.”
 
He added: “Further, although Mr. Thandi claimed he was holding his wallet in front of him, when he returned a few minutes later for his reenactment to demonstrate that a wallet could be mistaken for a cell phone, he was holding the wallet to his right ear, as one would do when talking on the phone, and not out in front of him as he said he was doing and how one would expect him to reenact the use of a wallet instead of a cell phone.”

 

THE judge accepted LeBlanc’s version and found Thandi guilty as charged. He wrote: “There are some parts of the evidence that would be consistent with both version of events, but taking the evidence on the whole and drawing logical inferences from it, I am satisfied beyond a reasonable doubt that Mr. Thandi was using his cell phone when sighted by Cst LeBlanc.”

 

Read the full judgment at: http://canlii.ca/t/g0pr3