British Columbia’s courts have interpreted and applied the province’s distracted driving legislation in nuanced ways. Examining the leading cases allows people to understand the law as it pertains to the use of electronic devices while driving.
Here are some of the leading cases you need to know if you are facing a distracted driving charge in BC.
R. v. Cheung
Julia Cheung was observed by a police constable stopped at a red light, looking at her Apple Watch and scrolling with her fingers. The constable pulled her over and they had a conversation in which Ms. Cheung said that she was looking at a text message from her partner. During voir dire, Ms. Cheung admitted this statement. Ms. Cheung also confirmed that she was not reading the message, but she did touch the screen twice to dismiss the message. The Apple Watch itself did not have a telephone function.
The Judicial Justice determined that while most wristwatches now run on electricity, it would be a serious offence for drivers to be committing an offence every time they checked their wristwatch for the time. Therefore, the wording “hand-held” must have been added to the definition of “electronic device” for a reason, and a wristwatch worn on the wrist would not normally be considered “hand-held”.
This case clarifies that a smartwatch is not a “hand-held electronic device” for the purposes of s. 214 of the Motor Vehicle Act simply by virtue of being worn on the wrist.
R. v. Grzelak
Patrick Henry Grzelak was observed by a police constable driving with earbuds in his ears. Mr Grzelak’s iPhone was in the centre console of his car, the wire from his earbuds plugged into it. The iPhone battery was dead, and the screen was not illuminated.
Judicial Justice B. Adair determined that by plugging the earbud wire into his iPhone, Mr. Grzelak had enlarged the device, such that it included not only the iPhone itself, but also the attached earbuds. Because the earbuds were in Mr. Grzelak’s ears, he was holding part of the device in a position where it could be used. The Judicial Justice also determined that having a dead battery did not negate this, as simply holding the device in a position in which it may be used constitutes the offence, even if the device is inoperable.
This case establishes that accessories attached to an electronic device are considered to be part of that device, and holding that accessory is tantamount to holding the device itself. Furthermore, it confirms that having a dead battery does not excuse an individual from the distracted driving provisions of the Motor Vehicle Act if the device is being held in a position where it may be used.
R. v. Mirza
While conducting distracted driving enforcement, Constable Fenety observed Mr. Mirza’s vehicle stopped at a red light. Constable Fenety approached the vehicle on the passenger side and saw a cell phone laying lengthwise on Mr. Mirza’s right thigh, screen upwards, but not illuminated. Mr. Mirza testified that it was his usual practice to leave his cell phone in the pocket between the driver and passenger seat, but that on this occasion, the phone may have been touching his leg.
Justice Fitzpatrick upheld the decision of Judicial Justice Maddock to convict Mr. Mirza of using an electronic device while driving. Mr. Mirza’s argument that he was not using his cell phone because it was locked, his hands were on the steering wheel, and he was not actively using any of the functions, was rejected. Citing R. v. Tannhauser, 2020 BCCA 155 and R. v. Rajani, 2021 BCCA 292, Justice Fitzpatrick confirmed that the functionality of the device is irrelevant – having an electronic device resting on the driver’s leg, where it may be used, is sufficient to constitute an offence.
This case reaffirms the precedents set in Tannhauser and Rajani. It confirms that a driver having an electronic device resting on their leg constitutes “use” of the device, and is therefore an offence under the distracted driving provisions of the Motor Vehicle Act.
R. v. Sangret
Hunter John Sangret, a Class 7 (novice) driver, was observed by a police officer to have an electronic device mounted on the dashboard of his vehicle. The officer issued Mr. Sangret a ticket for Driving Contrary to Restrictions pursuant to s. 25(15) of the Motor Vehicle Act, because as a Class 7 driver he was prohibited from using an electronic device while driving.
Justice Watchuk allowed Mr. Sangret’s appeal and overturned the conviction. The court found that merely having a device mounted on the dashboard did not constitute use, and it is not an offence to install a device in a manner that facilitates its use. The court also noted the distinction between Class 7 and other drivers, who are permitted to use devices in hands-free mode provided the device is installed in the stipulated manner.
This case clarifies that for Class 7 drivers, the simple presence of an electronic device, even if it is mounted on the dashboard, does not constitute “use” of the device and is therefore not a violation of the Motor Vehicle Act restrictions applying to their licence.
R. v. Tannhauser
While conducting enforcement, a police officer observed Patrick Forster Tannhauser driving with his cell phone on the steering wheel. Mr. Tannhauser was subsequently issued a ticket for using an electronic device while driving. Mr. Tannhauser testified that his cell phone was equipped with software that disabled its functions while the vehicle was in motion, so use of it would have been impossible.
Chief Justice Bauman allowed the appeal and ordered a new trial. The court determined that a cell phone with no immediate functionality is still an electronic device, and holding it in a position where it may be used is an offence. The court also confirmed that the functionality of the device is irrelevant – the presence of the phone itself is the issue.
This case establishes that a cell phone, even with disabled functions, is still an electronic device and may not be held by a driver while the vehicle is in motion. The fact that the phone’s functions were disabled in this case was not a valid defence against the distracted driving provisions of the Motor Vehicle Act.
R. v. Bleau
Mr. Bleau was driving to work while listening to a podcast playing from his mobile phone. The phone was located in his vehicle’s cupholder, connected to the car’s sound system via Bluetooth. A police officer pulled him over in his workplace parking lot, originally claiming to have seen Mr. Bleau holding his phone to his ear while driving. Mr. Bleau refuted this, providing phone records and dashcam footage as evidence. The Judicial Justice found the officer’s evidence unreliable, but convicted Mr. Bleau of using an electronic device while driving because the phone was not ‘firmly affixed’ to the vehicle.
The Supreme Court of British Columbia overturned Mr. Bleau’s conviction. The court determined that passively listening to a podcast transmitted from a mobile phone did not constitute ‘use’ as defined by the Motor Vehicle Act and Use of Electronic Devices While Driving Regulation. They emphasized that ‘use’ requires a driver to engage in a prohibited ‘action’, such as holding, operating, or watching the screen of an electronic device.
This case clarified the definition of ‘use’ under the distracted driving legislation. It established that simply having an electronic device present and transmitting audio, without active interaction from the driver, does not constitute a violation.
R. v Jahani
Mr. Jahani was observed by a police officer holding his mobile phone while stopped at a red light. Mr. Jahani explained that he was plugging in his phone to charge as the battery was low.
The court upheld Mr. Jahani’s conviction, determining that charging a phone is ‘using’ one of its functions. They reasoned that even momentarily engaging with a device’s functions while driving can be considered ‘use’ under Section 214.2(1) of the Motor Vehicle Act. This decision emphasizes the legislation’s intent to prevent actions that could distract a driver from the road.
This case solidified that even brief interactions with an electronic device, including charging, can be considered ‘use’ and are subject to penalties. The court focused on the potential for distraction rather than the specific function being used.
R. v. Partridge
While driving, Mr. Partridge was observed by a police officer looking downwards. The officer stopped the vehicle and saw a mobile phone wedged between the folds of the passenger seat with the screen facing the driver. The phone’s screen was not illuminated. The Judicial Justice of the Peace convicted Mr. Partridge based on the phone’s positioning, concluding that it was not ‘securely fixed’ to the vehicle as required for hands-free use.
The Supreme Court of British Columbia overturned the conviction. They found that the Judicial Justice had incorrectly focused on the hands-free exception without considering the crucial element of ‘use’. As the officer did not observe Mr. Partridge touching the device, there was no evidence of a ‘further accompanying act’ needed to establish ‘use’. The Crown accepted this interpretation.
This case reinforced that the mere presence of a mobile phone within a driver’s sight, even if positioned to be viewable, is insufficient for a conviction without evidence of ‘use’. The court emphasized the necessity of an action beyond simply having the phone in view.
R. v. Sangha
While driving, Mr. Sangha’s mobile phone, which was resting on his lap, fell into the footwell of his vehicle. Mr. Sangha reached down and picked up the phone to move it to the cupholder. He was observed doing so by a police officer and received a ticket for using an electronic device while driving.
Despite arguing that he was mitigating a risk to safe driving, Mr. Sangha’s conviction was upheld. The court determined that the risk posed by the phone’s location in the footwell was not an immediate threat and therefore the defence of necessity did not apply.
This case illustrates that the Motor Vehicle Act prioritizes the act of physically holding a device over hypothetical safety risks. While it clarifies that the defence of necessity might apply in a situation with an immediate and present danger, the case emphasizes that drivers should prioritize securing devices before driving to avoid potential violations.
