The BC Supreme Court has again weighed into the distracted driving debate. Specifically, the issue of whether having a loose phone in a cup holder is distracted driving.
First, a bit of background.
The ambiguous wording of the Motor Vehicle Act (MVA) regulations governing the offence of use of an electronic device while driving has contributed to some contrasting legal rulings. Simply having a phone within sight while driving is not enough to constitute the offence. However, having a phone on your lap does.
While a provincial court said having a phone on your lap is not distracted driving, the BC Supreme overruled this finding with one of its own which found it does constitute the offence.
Another contentious issue is whether having an unsecured phone in a cup holder is against the law. This time last year, a Court overturned a driver’s ticket for having his phone charging in a cup holder.
A recent decision also involves having a phone in a cup holder.
R. v. Bleau
In a BC Supreme Court decision just released, Ryan Bleau received a ticket after a police officer saw him driving with a phone placed loosely in a cup holder. Mr. Bleau was listening to a podcast via Bluetooth linked to his car’s sound system.
Mr Bleua testified he did not touch his phone as the connection kicked in automatically after he started driving. However, a provincial court judicial justice upheld the ticket.
Section 214.2 of the MVA permits the use of electronic devices if they are securely fixed to the vehicle, they do not obscure the driver’s view, the sound is emitted from the vehicle’s sound system and they require only one touch to operate.
Is listening to audio from a phone in a cup holder distracted driving?
So does this mean that having an unsecured device, such as in a cup holder, is automatically distracted driving? The Crown argued that Mr Bleu could not use Bluetooth to play podcasts from his phone because he would then be using an electronic device without it being securely fixed.
As is typical of distracted driving ticket appeals, the main issue was meaning of the word “use”. The MVA prohibits the use of an electronic devise while driving. So the Court had to determine whether he was using his phone by listening to a podcast via the vehicle’s Bluetooth-connected sound system.
One of the meanings of “use” under s. 214.1 is: “Operating one or more of the device’s functions”. But what, then, does the law mean by “operating”?
The BC Supreme Court judge tried to ascertain what the lawmakers intended meaning of the word operating was. The Court decided the grammatical use of the word “operating” in the regulations was as a transitive verb. That is, it was being used in a transitive sense because it implies an action being carried out through a subject, the driver, to an object, the device’s functions.
In other words, operating a device’s functions requires an action on the driver’s part. The judge said:
“Listening passively to music or to a podcast, which is what the appellant in this case did, is not a form of “use”. If he had touched or otherwise interacted with his phone, while driving, or operating his vehicle, to access his podcast he would then have “operated” the phone’s functions.”
This meaning of operating would be in line with the aim of the law, the Court stated, which is to limit the touching or holding of a device while driving. The court found Mr. Bleu was not using his phone under the definition of the law and set aside his conviction
So there’s nothing to stop you from listening to a podcast or music from your phone via your vehicle’s Bluetooth sound system. Having a phone in a cup holder is not distracted driving if it’s connected via Bluetooth.
The fact Mr Bleau’s phone was in a cup holder and not securely fixed was not illegal. As we have seen before, having a phone in a cup holder connected to the vehicle with a charger is not an offence.
This decision represents a victory for common sense. The driver was not touching or holding his phone. There was no distracting element. He was passively using the device to listen to a podcast and since it’s not an offence to have your phone in a cup holder, he was doing nothing wrong.