Having dealt with hundreds, if not thousands, of cases where clients are charged with using an electronic device while driving, I have seen all types of cases where people truly did not believe they were using their device.
In most instances, the mistake came down to the interpretation of the provision defining “use” both in the Motor Vehicle Act and the Motor Vehicle Act Electronic Device Regulations. In a bid to stop the madness, I recently took a case, R. v. Partridge, to the BC Supreme Court to get some clarification on what constitutes using your phone while driving in British Columbia. But after a recent BC Traffic Court decision, it seems the madness has not yet ended.
In R. v. Anderson, a judicial justice of the peace in traffic court determined that my case, and its predecessor, R. v. Jahani, were wrongly decided. This is despite the fact that in Partridge the Crown conceded the appeal and agreed that Jahani was the correct statement of the law. To some extent, there was a problem in this case of the accused being self-represented and consequently unable to explain those legal nuances to the judicial justice.
What happened in Anderson was simple: Ms. Anderson was pulled over after a police officer observed her with the phone tucked under her leg while she drove. She was ticketed for using an electronic device, even though she was not talking or texting or playing music. The basis of the ticket was that she had her phone tucked under her leg.
The central issue in the case was whether a person can get a cell phone ticket for having their phone tucked under their leg. And the judicial justice in that case answered it in the affirmative.
Looking at the provisions of the Motor Vehicle Act, the Motor Vehicle Act Electronic Device Regulations and the case law, he determined that both Jahani and Partridge were wrongly decided. The basis for this decision was the fact that the Motor Vehicle Act prohibits holding the phone in a position in which it may be used.
If your phone is held securely under your leg, you cannot initiate a call. You cannot answer a call. You cannot send a text message. If the phone is being used as a music player or GPS, that might be one thing. But then, is that interpretation of the definition not inconsistent with the purpose of the Act? If the purpose is public safety, why should having it tucked under your leg when directions or music is pre-programmed offensive to the Legislature’s intent?
Besides… the definition of use itself is circular. If use includes holding the phone in a position in which it may be used, what is meant by the term use in that definition? Used for what? Holding the phone in a position in which it may be held in a position in which it may be held in which it may be… you get the point. The interpretation makes little sense when you consider both the purpose of the text and ordinary rules of grammar.
So while the judicial justice in this case determined that the earlier case, R. v. Judd, was a correct statement of the law regarding use, the facts did not fit this situation. In Judd, the evidence was that Mr. Judd was holding his phone up to his ear. There was no evidence that he was talking or using any of the features of the phone.
But the act of holding it up to one’s ear is much different than the act of tucking it under the leg. One involves taking your hand off the steering wheel and rendering your hand and arm incapable of operating the vehicle in an urgent situation. The act of tucking it under the leg is vastly different. It only involves tucking your phone under your leg and little else.
At the end of the day, the traffic court judgment, while persuasive to other judicial justices, is not binding on them. Partridge and Jahani are binding. And the Partridge judgment was rendered for the sole purpose of cleaning up the law in this area. While that did not happen after all, at least there is some more judicial comment to guide the decision-making of parties in traffic court and on the road.
For now, however, if you’ve got your phone in your vehicle you are best to keep it away from your body as opposed to touching you in some way.
