A few weeks ago, I wrote a blog post about the cell phone immobilizer case. To remind you, a man was acquitted at trial of using an electronic device while driving on the basis of the fact that he had his phone equipped with an app that would disable it from use while driving.
The case received a lot of press, mostly because up until now there have been very few defences in electronic device cases. And the more press a successful case receives, the more likely it seems to be that the Crown considers an appeal. I have no knowledge of whether they are or are not, but it seems to me that one is likely in this case.
And here's why.
This post is a guest post by Emma Wilson of Acumen Law Corporation. Emma is a rising star about to be called to the bar in British Columbia come August. She is well on her way to being a leader in traffic ticket, driving prohibition, and criminal defence.
We’ve all heard it in the news, or maybe learned it the hard way. The BC government, with help from ICBC, the RCMP and the municipal police forces, is cracking down on cell phone use while driving. The laws against use of an electronic device while driving have been on the books since 2010, so theoretically, we should all already be aware of this and the only people who should be worried are the ones who are actually putting others at risk with their behaviour (which isn’t us… or is it?).
An ongoing case recently aired at a small claims court in BC could have wider implications for insurance cases in the province. A driver named Angela Seeley who crashed her car is suing the Insurance Corporation of British Columbia (ICBC) for refusing to honour her insurance claim. ICBC believes Ms. Seeley was impaired at the time of the collision and it alleges she lied by saying she had nothing to drink before it happened. Ms. Seeley agrees her driving was affected leading up to the crash, however, not by drinking but by texting.
This case raises some interesting points about why someone would admit to using their phone while driving but deny having consumed alcohol before driving. What are the differences between driving while impaired and driving while distracted? What are their implications for insurance claims and, crucially, how severely they are punished?
On Episode Five of Driving Law with Kyla Lee I sat down with Paul Doroshenko from Acumen Law Corporation. We talked about the changes to ICBC's Driver Risk Premium, which will increase premiums for drivers who are convicted of any high risk offences. And in the second half of the episode, I spoke with Acumen's Agnes Tong about how DUI convictions will impact your ability to enter Canada or remain in Canada as a visitor or Permanent Resident.
You can listen here, subscribe on iTunes, and tune in next week for another episode.
Challenging a traffic ticket for speeding can be difficult. The evidence that an officer must adduce to show that the measurement of speed was accurate is relatively straightforward. And couple an external speed measurement using laser or radar with a speed estimate from the officer, and only a highly skilled person can succeed in traffic court.
Recently, a BC Provincial Court decision showed just how difficult it can be to succeed in these cases.
One very troubling suggestion by the BC Government recently was the notion that traffic ticket convictions on the driving record would soon come with increased consequences to insurance. They plan to be adding penalties to a ticket after the fact. But not only are those going to affect tickets that are issued after the changes come into effect, the word on the street is that the insurance-related consequences will be assessed to tickets that have previously been added to a person's record.
This is highly problematic, and may verge on being unconstitutional.
Last week, British Columbia's Attorney General, David Eby, gave remarks that suggest the government is contemplating traffic tickets resulting in an increase in insurance rates. The Attorney General cites a survey, conducted by the Provincial Government, which found that there was overwhelming support for the idea that high risk drivers should pay more for their insurance.
At first blush, having a traffic ticket affect your insurance rates may seem like a step in the right direction toward solving ICBC's financial problems and promoting road safety, but this idea is deeply flawed in several respects. Here's why.
Today, RoadSafetyBC made a major announcement regarding how it is going to start dealing with cases of street racing and stunt driving. You can read the announcement here.
At first blush, it sounds great for road safety. The Government makes it sound as though the current system allows only for fifteen-day prohibitions for street racing or stunt driving, and that these will now be replaced with longer prohibitions, between three and thirty six months, after this type of driving behaviour is observed. The problem with this announcement is that it sorely misrepresents the current state of affairs, and it misleads the public about why this action is being taken.
To understand this issue it’s necessary to understand the current system.
Earlier this year, a Judicial Justice of the Peace tried to speed a few matters through the court. There were a few traffic tickets that had been in court for nearly two years, and being provincial offences, this meant they passed the 18-month ceiling to qualify as unreasonably delayed.
In Canada, after Supreme Court of Canada in the Jordan decision, this Judicial Justice ordered stays of proceedings for several violation tickets. The tickets were initially issued in 2015 and the drivers who disputed the tickets all had rights to be tried in court within a reasonable time. The alleged offences weren’t extremely serious either: just standard speeding violations and an illegal left-turn.
The Provincial Government clearly had good intentions when it made changes to the Motor Vehicle Act in 2010 to prohibit the use of personal electronic devices while operating a motor vehicle.
Barely 20 months after the legislation was introduced, Government had already tallied more than 46,000 tickets issued for distracted driving. Despite criticism from drivers, cell phone use while driving soon became a priority for law enforcement and legislators alike. It wasn’t entirely surprising. After all, distracted driving is a serious offence and can be a factor in crashes causing severe injury and death.
ICBC reports that approximately 78 people are killed each year in crashes “where driver inattention or distraction is a factor.” And as Government struggled to figure out how to get drivers to leave their phones alone, police conducted more and more enforcement blitzes with increasing vigilance.
Penalties have also doubled since the legislation was introduced. Initially, drivers caught using an electronic device were subject to a $167 ticket and three penalty points. Changes made in June last year increased the fine to $368 and added an additional penalty point.
This means a driver given a distracted driving ticket will now end up paying $543 in total for a first offence, when factoring in the increased premium for the extra penalty point.
Vancouver Criminal Lawyer with a focus on impaired driving, marijuana legalization and related issues, and immediate roadside prohibition defence.