Clarifying “use” in distracted driving cases

Previously on this blog, I wrote about an interesting case that provided guidance as to when exactly the prohibition against using an electronic device while inside a vehicle applies. If you’ll recall, a driver with a Class 7 licence was given a distracted driving ticket after he switched off a call from his mother after a cop pulled him over.

The driver argued the ticket shouldn’t stand because he only used his hands to switch off the call and only after parking to the side of the road. Nevertheless, because he admitted that he knew his mother was calling before he pulled over, the Court found this meant he had a phone operating in his car.

Following on from that example, the Supreme Court of BC heard an appeal which provides a great explanation of use.

‘Use’ in distracted driving cases

In this case, a police officer conducting distracted driving enforcement spotted a driver with a phone mounted to his vehicle’s dash.

The driver had a Class 7 licence. Whereas the law permits Class 5 drivers to have electronic devices within sight if they are properly mounted, there is a complete ban on all electronic devices for Class 7s.

The officer issued a ticket for Driving Contrary to Restrictions. However, at no point did the officer see the driver touch or use the device and the screen remained dark throughout their interaction.

Does having a device within sight constitute use?

The driver appealed but a provincial court found him guilty of the offence on the grounds that driving with an electronic device in plain sight constituted “use”.

A case I represented in established that simply having a cell phone within sight of the driver is not enough to convict someone of distracted driving.

So which one was it? Is having a device in sight “use” or not?

Clarifying the meaning of “use”

The Class 7 driver above appealed his conviction and in its ruling, the BC Supreme Court provided a helpful clarification.

The Motor Vehicle Act defines “use” as:

  1. a)holding the device in a position in which it may be used;
  2. b)operating one or more of the device’s functions;
  3. c)communicating orally by means of the device with another person or another device;
  4. d)taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

However, The Use of Electronic Devices While Driving Regulation states that “[a] person who watches the screen of an electronic device uses the device”.

So does a person “watch” a screen even if it’s blank? According to the BC Supreme Court ruling:

“A device in plain view is more likely to tempt a driver to distraction than one that has been safely stowed away in a pocket or a glove compartment. To commit an offence, however, the driver must do something to actualize or heighten this latent risk of distraction.”

So simply having a device within sight of the driver is not enough to secure a conviction. There must be an “accompanying act” on the part of the driver, such as holding the device in a way that enables further use.

Because there was no evidence of an accompanying act, the Court acquitted the driver of the offence.

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