As if there has not been enough confusion about distracted driving laws, it appears that yet again confusion over what is permissible has led to an improper conviction for one driver.
The most recent case overturning a distracted driving ticket is that of R. v. Ali. This is yet another case where the officer observed a cell phone charging in a cup holder, and this evidence formed the basis of the conviction.
But, for reasons I discuss in this blog post, this case is a little more complex.
In Mr. Ali’s case, there was a contest of credibility. The officer stated that in his rear view mirror, he saw Mr. Ali with his head bobbing up and down, and his fingers moving. He interpreted this to be consistent with using a phone. Mr. Ali, for his part, claimed to be eating peanuts and drinking a cup of tea.
The judicial justice in traffic court accepted the officer’s evidence and rejected Mr. Ali’s explanation for what the officer saw. Mr. Ali was convicted.
Now, I know you’re thinking… well, then what’s the big deal?
Well, apparently when the officer went to stop Mr. Ali and serve him with the ticket, he saw the cell phone charging in the cup holder. This reinforced for the officer that Mr. Ali had been using it. Mr. Ali did not dispute that it was sitting there.
The judicial justice, for reasons that are not clear, decided to go on from his reasons for rejecting Mr. Ali’s evidence and preferring the officer’s.
The judicial justice wrote:
[16] The evidence of Mr. Ali by itself would be sufficient to confirm a conviction for cell phone use. I rely on the case of R. v. Jahani out of the B.C. Supreme Court where it was held that simply charging a cell phone, even if the cell phone is off, is the using of a function of the cell phone and, therefore, it falls within s. 214.2(1) of the Motor Vehicle Act.
This was where the error lay.
The court on appeal determined that the judicial justice had muddied the issues by relying on the fact that Mr. Ali had the phone in his cupholder. Also, the judicial justice had misstated the law as decided in the Jahani case, which required that there be more than just the mere presence of a charging phone.
On the one hand, it is frustrating to see that yet again the law was applied incorrectly. But on the other hand, it is perplexing to see why such commentary was even made by the traffic court justice. If believing the officer was sufficient, as the appeal court found, to convict, then why bother with some statement about the law that is not correct?
Ultimately, though, it worked out for Mr. Ali. His matter was sent back for a new trial, as the Court felt the judgment was too ambiguous as to the actual basis for the conviction.
And Mr. Ali gets another shot at persuading a judge that he was eating peanuts and drinking tea while driving.
Do you have a distracted driving ticket you want to dispute? Give me a call on 604-685-8889.
