B.C. trucker who swerved into other lane in front of cop challenges conviction for holding cellphone

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A truck driver ticketed for distracted driving in British Columbia tried to argue in court that picking up his phone and moving it to his dashboard shouldn't count.

Driver Massoud Fazel Bakhsheshi appeared by phone in B.C. Supreme Court late last month to argue against his conviction.

A summary of the judge's reasons for her judgment on his appeal, which was heard in Chilliwack on Jan. 28 and posted online Monday, states that Bakhsheshi was convicted of using an electronic device while driving.

It's a charge under B.C.'s Motor Vehicle Act, and in his case, came with a $368 fine. No driving prohibition was entered, Justice Ardith Walkem said, but Bakhsheshi told the court that he received demerit points which, in combination with an existing number of points on his record, resulted in a four-month suspension of his driver's licence.

Bakhsheshi, a commercial driver who represented himself with help from a Farsi interpreter, described what happened the day he was ticketed as follows.

He'd been driving to Kamloops, and had lost his cellphone at some point during the drive. He wasn't sure where the phone was in the cab of his tractor-trailer, but at some point around Hope, he heard a sound coming from his door and realized that's where the phone was. Bakhsheshi said he picked it up with his left hand, passed it to his right hand and put it on the dashboard of his truck.

During that time, according to the judicial justice who convicted him initially, he demonstrated "the telltale signs of a duly distracted driver by swerving. With his large tractor-trailer combination, six axles, he swerved from his lane onto another lane."

Unfortunately for the driver, a police officer happened to be in the adjacent lane at the time, and said she had to "take evasive action" to avoid being hit.

That officer, named in court documents as Hogg, said she saw the phone in Bakhsheshi's left hand, but did not see him take it in his right and put it down on the dash.

Bakhsheshi argued in his appeal that he wasn't "using" the phone, as outlined in B.C.'s MVA. He wasn't talking on it or using it to send a text message, he was just moving it to another part of his vehicle, the driver said.

Bakhsheshi told the court in his defence that brochures issued by the Insurance Corporation of British Columbia only show talking and texting as being prohibited, and said he was unaware that simply holding or moving the phone would be considered use of the device.

He also denied swerving into the other lane, saying he only moved within his own.

But the Crown argued that even if Bakhsheshi is being completely honest, it wouldn't be enough to evade the conviction, as the first justice found his use of the phone was within the MVA's meaning.

In her decision, Justice Walkem looked to precedent, including a 2020 ruling in which the accused had braked hard, sending his phone flying to the floor. He picked it up and held it to his thigh, but was still convicted, and that conviction was later upheld.

Justice Walkem quoted the judicial justice in Bakhsheshi's case as saying, "If it were not for Officer Hogg's presence of mind, she would have been in an accident … I do not think that she signed on to die on a highway because of some driver's thoughtlessness."

Walkem said she agreed with the submissions of the Crown that Bakhsheshi's actions do constitute use, as the provision in the MVA is aimed at ensuring safety.

"This is the kind of event that the prohibitions against electronic devices in the MVA are intended to curtail," she wrote in reference to Bakhsheshi's swerving.

She decided to dismiss the driver's appeal.