Good news, drivers. A new defence has been established for the charge of using an electronic device while driving.
Courts tend to be very stringent when it comes to enforcing this offence. A BC government PR campaign against distracted driving has not helped the situation. The courts have taken a very broad interpretation of what constitutes “use” of an electronic device.
Use, as defined by Section 214.2(1) of BC’s Motor Vehicle Act, includes “holding the device in a position in which it may be used,” and “operating one or more of the device’s functions”. To give you an idea of how closely these stipulations are adhered to, in this case, a driver who said he had his phone in one hand while steering after picking it up out of force of habit had his ticket for using an electronic device while driving upheld on appeal. The Court found that regardless of whether he had been using the phone, according to the law, holding a phone in a position in which it may be used is a punishable offence.
In this case, a driver’s ticket for using an electronic device was also upheld after he plugged his phone in to charge while behind the wheel. The Court decided that although the defendant wasn’t physically holding his phone, the act of charging his phone constituted a use of one of its functions.
Courts show less regard for whether having a phone in your hand is distracting than they do for whether it could have that effect.
With that in mind, it was surprising and refreshing to see common sense win the day in a recent cell phone case.
Patrick Tannhauser appeared at a BC traffic court, charged with using an electronic device while driving. He said he could not have been using the device, within the definition of the legislation, because his employer had installed software that disabled the phone when it is inside a moving vehicle.
A police officer said he observed the driver holding a smartphone at the top of the steering wheel, although, he could not see the screen of the smartphone.
Mr Tannhauser said had picked up the phone because it was on top of some paperwork on his passenger seat that he wanted to look at. Remember, the law states that holding a phone in a position in which it may be used, regardless of whether or not it is being used or if it is only being held for a brief moment, qualifies as an offence.
Fortunately for the defendant, the provincial court judicial justice believed his testimony, despite a lack of hard evidence.
The judicial justice said: “I find on a balance of probabilities that the device could not be used on the basis the software prevented it from being used and I acquit him of the charge that he used the cell phone.”
Need for corroboration and evidence
Does this mean anyone who gets pulled over for using an electronic device will now have a get-out-of-jail-free card? Probably not.
Mr Tannhauser’s testimony was supported by the two police officers, as the judicial justice described, “I believe Mr. Tannhauser when he says he reasonably believed the software disabled the functions of the cell phone when the vehicle it was in was in motion. The explanation he gave, that he was moving it from the passenger seat to the dash so he could access papers on the passenger seat, is not inconsistent with the evidence of the two officers.”
So in order for this defence to apply, it would appear it requires corroboration and, at least, believable evidence.
The judicial justice also noted the prevalence of information in the public domain about the consequences of distracted driving. He hit the nail on the head by saying: “From the wording in the legislation, the context and the teleology, I conclude some of the language is directed at the purpose and some is directed at ease of enforcement.”
This is exactly the case. The courts have their hands tied when dealing with these types of cases because the legislation is geared towards the police. Hearings at traffic court are civil matters, which means the standard of proof is “on the balance of probabilities” rather than the “beyond a reasonable doubt” threshold of criminal trials. The burden of proof is also on the defendant, not the Crown, to prove their innocence in traffic court. These two factors mean the chips are stacked against anyone who receives a traffic ticket under this legislation.
ICBC appears to be supportive of phone immobilizing technology so cases such as this may occur more frequently in the immediate future.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.