Appeals

B.C. Appeal Court Rules that Distracted Driving is Not Limited to Holding a Cellphone

Written on behalf of Affleck & Barrison LLP

One of the leading causes of motor vehicle accidents in Ontario is distracted driving.

Distracted driving is defined as driving a vehicle while engaging in another activity such as texting, reading, using any handheld device (including typing on a GPS or changing a playlist), grooming, eating, and drinking. Driving while distracted is dangerous as it takes the driver’s eyes and attention off of the road, and puts the safety of the driver, passengers, other vehicles and pedestrians at risk.

Holding a phone in your hand while driving would obviously be considered distracted driving under the law, however, a recent decision by the B.C. Court of Appeal has further clarified the law regarding cellphone location in a vehicle and the offence of distracted driving as it pertains to drivers in British Columbia.

THE B.C. COURT OF APPEAL CLARIFIES DISTRACTED DRIVING

According to a recent decision by British Columbia’s highest court, the offence of distracted driving is not limited to a driver holding a cellphone in their hands while behind the wheel.

On March 15, 2019, Zahir Rajani (“Rajani”) was stopped at a red light in Vancouver and he was observed by a police officer to be looking down in his vehicle. The officer who approached Rajani’s vehicle witnessed a cellphone connected to a cord face-up in Rajani’s lap. Rajani was issued a ticket for distracted driving under section 214.2 of the Motor Vehicle Act.

During his traffic court appearance, Rajani admitted that he had been looking down, however, he testified that his cellphone was located face-up between his right thigh and the car seat. The traffic ticket was upheld and he received a $300 fine. It was determined that the location of his cellphone was insignificant and it was a potential distraction as it was being charged.

Rajani appealed this decision to the B.C. Supreme Court. The judge of this court found that the ticket and the judicial justice in traffic court was not justified in convicting him in finding that the mere presence of a cellphone in a vehicle was a distraction and that charging the cellphone constituted a “use” of the device. This court upheld the conviction and concluded that although several errors were made, the cellphone was being supported in a way that permitted its use. The B.C. Supreme Court explained that a driver did not need to be holding a phone in their hands to be in violation of the law.

Rajani appealed this decision to the B. C. Court of Appeal and argued that the judge erred in finding that the term “holding” found in section 214.2 of the Motor Vehicle Act is not limited to holding in one’s hands. Rajani argued that the law should not apply to a cellphone wedged between a driver’s leg and the seat and particularly if the screen is not illuminated.

A three-judge panel of the B.C. Court of Appeal rejected Rajani’s arguments and ruled that his conviction was “inevitable” given the facts of the case by his own evidence and the evidence of the police officer. It was concluded that the judge did not err in finding that Rajani’s conduct on the day in question was in contravention of the law. Further, Madam Justice Fenlon, writing on behalf of the court determined that holding, as found in section 214.1 of the Motor Vehicle Act, includes “physically grasping, carrying or supporting an electronic device with any part of one’s body in a position in which the device may be used”.

WHAT ARE THE DISTRACTED DRIVING RULES IN ONTARIO?

According to the Ontario Ministry of Transportation, it is against the law to:

  • Hold a phone or mobile device while driving;
  • Operate a handheld electric device while driving; and
  • View display screens that are unrelated to driving.

The distracted driving rules are found in section 78 of the Highway Traffic Act.

78(1)              No person shall drive a motor vehicle on a highway if the display screen of a television, computer or other device in the motor vehicle is visible to the driver.

78.1(1)           No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.

Drivers who are found to be talking on their phones, texting, dialing, or emailing with a hand-held device will be fined up to $1,000 with a three-day licence suspension, and three demerit points.

Motorists facing a second conviction of distracted driving will face a fine of up to $2,000, a seven-day licence suspension, and six demerit points.

Drivers who have been convicted of driving distracted more than two times will be required to pay a fine of up to $3,000, will lose their licence for 30 days, and six demerit points.

Novice drivers with a graduated licence (G1, G2, M1 or M2) will face even tougher penalties. These drivers will face the same fines as more experienced drivers, in addition to:

  • 30-day licence suspensions for a first conviction;
  • 90-day licence suspensions for a second conviction; and
  • licence revocations and removal from the Graduated Licensing System for a third conviction.

In addition to these stiff fines and penalties, those convicted of distracted driving can expect their insurance rates to increase.

The only exceptions to the distracted driving rules are when calling 911 in an emergency or when the driver is lawfully parked or safely pulled off of the roadway.

If you are facing a distracted driving charge or another driving offence, please call the experienced criminal lawyers at Affleck & Barrison LLP at 905-404-1947 or contact us online. We offer a free consultation, and are available 24 hours a day, seven days a week.