A recent decision released from the BC Supreme Court exposes what is clearly an absurdity in BC’s distracted driving legislation.
As I have said numerous times, the distracted driving legislation in British Columbia is not connected to common sense or rational thinking. It is a series of prohibitions on certain acts, many of which do not pose a danger to the public, while permitting acts that may objectively be more dangerous.
This recent case highlights how poorly-crafted the legislation truly is.
Released on March 30, 2020, the case involved Mr. Sangha. He was driving his vehicle while his phone was resting on his lap. In a recent decision at the provincial court level, a BC traffic court justice of the peace ruled that having your phone in your lap does not count as using it. So by doing this, Mr. Sangha was not violating the law.
As he drove, according to Mr. Sangha, the phone fell from his lap and down into the driver’s side footwell of the vehicle.
This exposes the inherent risk associated with having a phone on your lap. The phone can slip from where it is sitting and end up in a position that could, theoretically, pose a risk to the driver or the safe operation of the vehicle. In some respects, this is why phones should be securely mounted or at least somewhere they don’t create a risk, like a cupholder or passenger seat.
Mr. Sangha recognized the risk associated with having his phone fall into the pedal-area of the vehicle.
And so to mitigate the risk associated with his phone sliding around underneath the pedals, Mr. Sangha reached down and picked up the phone, moving it into the cupholder where it was more secure.
However, in the instant that he did so, he was observed by a police officer to have the phone in his hand. He was stopped and issued a traffic ticket.
Mr. Sangha disputed the ticket, and was convicted at trial. He appealed, arguing that the conviction was done in error, given that he needed to hold the phone for the purposes of avoiding a risk posed by the phone moving around underneath his pedals. On appeal, the conviction was upheld.
And this is where the absurdity of the law really comes to light.
How can it be that driving around with your phone on your lap, where it is readily accessible to distract or tempt the driver, and where it – as demonstrated by this case – poses a risk of falling down and creating a danger to the safe operation of the vehicle is lawful, while addressing that risk by picking up the phone is unlawful.
One of these two actions is obviously more dangerous than quickly grasping the phone to move it out of the way. Despite this, the prohibition is not on the more dangerous act, but on the simple act of touching the phone in a manner in which it may be used. It is incredibly frustrating to see a law so poorly drafted that it actually puts drivers and road users, in circumstances like this, at a greater risk of danger if they comply with the law.
Mr. Sangha tried to raise the defence of necessity, which some may argue exists to prevent the inherent absurdity in this situation. However, that defence was unsuccessful.
Essentially, Mr. Sangha failed in proving that the defence of necessity applied because the risk that was posed by the cell phone sliding around in the footwell near the pedals was not an imminent risk of peril, but a theoretical one. Because the risk was only foreseeable and not transpiring at the time he picked up his phone, the defence of necessity could not apply to him.
I suppose there is one silver lining in this case. Mr. Sangha had argued both due diligence and necessity, but failed in proving both defences. That being said, the court did not foreclose either defences from applying if the facts justified them. It is possible that a similar circumstance could occur where the phone in the footwell created an actual, transpiring risk. In such circumstances the defence could successfully be raised.
But more interesting is the reference to the defence of due diligence. By not arguing that due diligence could not apply, but merely that it did not apply on the facts, the Crown and the judgment have left the door open a crack to drivers to argue that they exercised due diligence in attempting to comply with the law.
As the Crown argued in this case, due diligence could be raised as a defence if a driver reasonably believed in a set of mistaken facts which if true would render the act or omission innocent, or a driver took all reasonable steps to avoid the particular event.
While I cannot fathom a situation in which a driver would reasonably believe a mistaken set of facts about distracted driving – because pure ignorance of the law’s nuances is not sufficient to make this out – there may one day be a case where such a defence is applied.
And so while Mr. Sangha was not successful in raising the defence of due diligence or necessity in this case, and while he is now stuck with the consequences of a distracted driving ticket, he may have at least opened the door to some new defences in the future in distracted driving cases.
