There is often a great deal of confusion about what may or may not amount to distracted driving in British Columbia. The definition of distracted driving or using an electronic device while driving is broad, and also does not specifically state all the conduct that is both allowed and prohibited.
This blog post will break down some of the common statements we hear about distracted driving and whether or not those are allowed or prohibited under the Motor Vehicle Act.
- The phone was resting on my lap
In R. v. Wylie 2020 BCPC 17, the driver was charged with distracted driving for having his cellphone connected to a charger. The device was resting on his lap. The screen was not illuminated. He was not touching the phone with his hands.
The Crown submitted that charging a phone was “operating a function” of the phone, which is prohibited under section 214.1(b) of the Motor Vehicle Act. The Court rejected the Crown’s submission. The Court held that plugging a device in to recharge the battery is not an ordinary and grammatical interpretation of “operating a function.” The judge reasoned that the legislature intended “operating a function” to mean using texts, apps, games, and music, but not charging.
The Crown also submitted that the device resting on the driver’s lap was “holding” the device, which is prohibited under section 214.1(a) of the Act. The Court rejected the Crown’s submission. The Court held that the device resting on the driver’s lap was not “holding” in its grammatical and ordinary sense. The Court held that, given the context, holding was synonymous with grasping. The driver was not grasping his phone. The appeal was allowed, and the driver was acquitted.
- My phone was just playing music through Bluetooth
In R. v. Bleau 2021 BCSC 13, a driver was acquitted of distracted driving on appeal after he was caught listening to a podcast on the vehicle’s stereo via Bluetooth. The connected phone was loose in the cupholder. The Bluetooth automatically connected when the car turned on. The accused did not touch or otherwise interact with the phone while driving to access the podcast.
On appeal, the Court held that listening to a podcast passively is not a form of “use” of an electronic device as defined in section 214.1 of the Motor Vehicle Act.
“use”, in relation to an electronic device, means one or more of the following actions:
(a) holding the device in a position in which it may be used;
(b) operating one or more of the device’s functions;
(c) communicating orally by means of the device with another person or another device;
(d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device.
The judge held that the legislation suggests that use must be connected to an action. The judge reasoned that if the driver had touched or otherwise interacted with his phone to access the podcast he would then have “operated” the phone’s functions. Similarly, if he had picked the phone up at any time he would have been “holding the device.” However, the phone was playing a podcast automatically from the cup holder, which was not an action.
- I was using a two-way radio and not a phone
Section 214.5(b) of The Motor Vehicle Act states that there are several exceptions to the prohibition on using electronic devices while driving. The legislation points to the Use of Electronic Devices While Driving Regulation, which defines the devices that can be used while driving, including hand microphones and two-way radios.
In R. v. Shelford 2021 BCSC 918, the judicial justice convicted a driver of distracted driving because their device did not meet the criteria for a hand microphone as defined in the Regulation:
Hand microphone
9 A person may use a hand microphone while driving or operating a motor vehicle on a highway if
(a) the device is within easy reach of the driver’s seat, and
(b) is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not obstruct the person’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle.
The judicial justice held that the device was not a hand microphone because only a wire connected it to the dash of the truck. It was not “securely fixed” to the truck.
On appeal, the Court held that the judicial justice erred by only assessing whether the device met the criteria for a hand microphone. They did not consider whether the device would meet the criteria for a two-way radio. The Court acquitted the driver because the electronic device met the criteria for a two-way radio.
Two-way radio
A two-way radio consists of a hand-held microphone connected to a transceiver unit that is operated by a push and hold-to-talk function and allows for oral communication, but not for the transmission and receipt of oral communication at the same time.
A person may use a two-way radio while driving if the transceiver:
• Is within easy reach of the driver’s seat; and
- Is securely fixed to the motor vehicle or worn securely on the person’s body in a manner that does not obstruct the person’s view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle
Note: Hand microphones, including two-way radios, may only be used in the push and hold-to-talk function while driving. Other functions on these devices cannot be operated by a driver while driving.
- My phone was lying on the passenger seat or in the cupholder
In R. v. Partridge 2019 BCSC 360, a driver was acquitted of distracted driving on appeal. The police observed the driver looking downwards while driving. After stopping her, the officer observed a cellphone on the passenger seat. In convicting the accused, the Justice of the Peace concluded that the device did not meet the criteria for a hands-free device because it was not securely fixed to the vehicle.
On appeal, the driver submitted that the Justice of the Peace erred by not assessing whether he used the phone, a required element of the offence. The Court held that since the officer never saw the driver touch the device, there was no further accompanying act that would constitute use. The mere presence of a cellphone within sight of the driver was not enough to secure a conviction.
- My phone was disabled, out of battery, or not functional
R. v. Tannhauser, 2020 BCCA 155 also dealt with the meaning of “use” as described in the Motor Vehicle Act. The accused was convicted of distracted driving after he was seen holding his cellphone while driving. He argued on appeal that he was not “using” the cellphone because it contained software that disabled all its functions. The Court held the Act prohibits holding a device absolutely. It does not only prohibit holding a device with certain functions. The legislatures understood phones could be turned off. Their intent was to prohibit certain phone positions while driving. The appeal was dismissed.
- My phone was just in the car in case of an emergency
In R. v. Chan 2015 BCPC 344, a novice driver was charged with distracted driving. Novice drivers have a licence condition under section 30.072 of the Motor Vehicle Act Regulation, which requires them not to use electronic devices while driving for any reason. An officer saw a cellphone charging in the cupholder of the driver’s car. On appeal, the driver was acquitted. Section 30.072(2)(b) of Motor Vehicle Act Regulations sets out an exception that allows novice drivers to use electronic devices to make emergency calls while driving. The Court accepted that it was implicit in the legislation that a novice driver can have a cellphone in their vehicle to make emergency calls. The device can also be in arm’s reach of the driver. The Crown needed to prove that the driver was using the device. The Crown did not meet its burden.
