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.
There is a good potential for an appeal in this case simply based on the definition of electronic device in the legislation. While most people think about using an electronic device in the traditional sense of, you know, actually using your phone, the definition of use is much more broadly defined in the legislation.
The Motor Vehicle Act defines use as the following:
It is therefore arguable on appeal that using an immobilizer app is both operating one of the device's functions and, in the circumstances of this case, use also included the fact that the accused was actually holding the phone. We saw in a recent BC Supreme Court case a liberal definition of "use" intended by the Act. In R. v. Jahani, the court found that charging a phone by using the charging cord was operating one of the device's functions.
Indeed, even since that decision was released, other Judicial Justices of the Peace have declined to follow it, calling it wrongly decided. A more thorough interpretation of the term "use" in the Motor Vehicle Act, looking at numerous decisions of other traffic court justices was recently done in R. v. Movassaghi. This case makes essentially the same point I make here: the definition of use does not require that the phone be operable.
With that liberal interpretation of the word "use" and the previous case law in the area, the facts of this case amply support that the actions taken by the accused in the immobilizer case may fall within the definition of use. And while, clearly, prohibiting the use of an app that disables the phone from being used in the traditional sense seems overbroad, there was no constitutional challenge of the provision before the court to consider whether the legislature could legislate use so broadly.
To counter this, the defence would have to show that the Legislature intended to prohibit only the traditional sense of use. This would mean showing that the intention of the legislation is meant to block people from taking actions that are likely to lead to a distraction which could then cause an accident. The problem with that is that while that may seem to be the point of the legislation, the definition of "holding the device in a position in which it may be used" suggests the legislature intended to prohibit future risk, supporting a more broad interpretation of the provision. This argument may be more of an uphill battle than readily apparent on an appeal, if one is filed.
There is a second reason, however, that the decision is vulnerable to be overturned on appeal. And that has to do with the definition of an electronic device.
It does not appear from the facts of this case, though the transcript may be more clear, that the use of the app rendered the device completely inoperable. If that were the case, then how would a person disable the app? Obviously the phone could still transmit data and process and compute data for the purposes of disabling the app when appropriate to do so.
Again, we have to turn to the legislation. While the definition of electronic device in the Motor Vehicle Act itself includes a device capable of functioning as a phone, the decision does not address the rest of the definition, which also includes a device that is not capable of functioning as a phone. There are "prescribed classes" of electronic device, set out in the Motor Vehicle Act Use of Electronic Devices While Driving Regulation. This regulation clarifies that any of the following are also electronic devices:
That definition clearly includes a cell phone that has been disabled by an app. It is still a hand-held electronic device with the purpose of processing or computing data. That data is whatever step is necessary to disable the device. The Regulations therefore appear to prohibit the use of these apps.
Now, is this plainly stupid and arbitrary? Yes. But is the interpretation of the legislation undertaken in traffic court consonant with this plainly stupid and arbitrary law? Arguably, it is not. And again, absent some sort of a constitutional challenge to the law, stupidness and arbitrariness gets to stand.
Hooray for justice.
And so while the detractors of the overbroad and arbitrary electronic device regulation in British Columbia (myself included) are celebrating this judgment, I am doing so cautiously. I suspect this may be a case for a Crown appeal, and if one is taken, I suspect there may be some very valid and arguable issues, leaving the issue still open for another day.
Vancouver Criminal Lawyer with a focus on impaired driving, cannabis legalization and related issues, and immediate roadside prohibition defence.