In a recent decision from traffic court, the BC Provincial Court has provided further clarity to the seemingly-endless grey area that is the distracted driving laws in British Columbia.
In this case, Ms. Wylie was seen driving with her phone plugged and sitting on her lap. The screen was not illuminated and she was not touching the device. The officer who ticketed her argued that simply having a phone resting on or near her lap was using it. Ms. Wylie testified that the phone was next to her leg and was charging.
You can find the judgment here.
After reviewing the law, the judicial justice determined first of all that having a phone charging is not using one of its functions. This has long been the subject of debate, despite the fact that numerous decisions have attempted to put this to bed. The argument in favour of a finding that it is “in use” when being charged is that the charging is a function of the phone.
But the judicial justice in this case used a common-sense comparison to find that the mere act of charging the phone was not using it. If the phone were a television, in one’s home, and it were plugged into the wall, it would not be considered in use even though it was plugged in. He determined that the same logic should apply to the cell phone rules in a vehicle.
Undeterred, the officer argued that it was irrelevant because the driver was holding the phone by having it on her lap.
On this issue, the court determined that having a phone on your lap does not constitute use.
That bears repeating and explanation. Having your phone sitting on your leg does not amount to using it, without further interaction with the phone.
The reason for that, as the judicial justice explained, is because of the plain meaning of the world “hold.” Hold has two definitions. One definition involves putting something somewhere designed to hold it, like a shelf or a mount. We already know that this is not illegal. In fact, having a phone mounted is permitted and encouraged by government and the law.
The other definition of “hold” includes to grasp an object, or more specifically, to take or keep something in your hand or arms.
Then, the issue came down to one of simple statutory interpretation rules. The legislation defines use as “meaning” certain activities. It does not define use as “including” certain activities. This means that the definition is exhaustive. Only those activities that are explicitly listed in the legislation and not others that could be included in it are prohibited.
Resting a phone on your lap is not listed as a prohibited activity, and while it may be included in a broader understanding of use, the legislation is exhaustive and not inclusive.
So for any person out there — and I know there are a lot — who received a ticket simply for having a phone on their lap, even if it was charging, you have a defence to the cell phone ticket you received.
Thankfully, this decision has come in time to provide a little more clarity to the never-ending saga that is the unclear distracted driving laws in British Columbia.
