The "mere presence of a cellphone within sight of a driver" does not necessarily constitute distracted driving, a B.C. Supreme Court judge has ruled.
The decision came this month as a result of an appeal by a driver convicted in 2018 of using an electronic device while operating a motor vehicle on a highway.
The driver’s lawyer, Kyla Lee with Acumen Law, said a Vancouver police officer observed her client looking down while behind the wheel. Lee said the officer walked up to the window of the vehicle and saw a cell phone wedged in the front passenger seat. The screen was facing up, but it was not illuminated.
“The fact that the screen wasn’t illuminated was a key element, because it showed that he wasn’t, you know, using the phone in a way where he was just surreptitiously glancing down when he had the opportunity,” Lee told CTV.
Section 214.2 of the Motor Vehicle Act – which the driver was initially convicted of contravening – allows for devices to be used in a "hands-free" manner as long as they are "securely fixed to the motor vehicle."
But in focusing on how the driver's phone was or wasn't connected to the car in this case, Justice Murray Blok said the justice who handed down the original conviction "did not really address the question of 'use' of the device, a necessary element of the offence."
In his decision, Blok added that "the appellant emphasizes that since the officer never saw the appellant touch the device in any way, there was no 'further accompanying act' and so the appellant cannot be found to have been 'using' his cell phone."
“You can’t get a conviction for just having a phone loose in the vehicle,” Lee added. The driver’s conviction was ultimately overturned.
Vancouver police wouldn’t elaborate on how this decision may affect their ticketing policy. When questioned about the case, Sgt. Jason Robillard said, “I can say that we are aware of the ruling and it sets some very clear guidelines and interpretation of the Motor Vehicle Act.”
Cpl. Mike Halskov with RCMP Traffic Services said the decision provides clarity about use of a cellphone, but points out while the court has ruled it’s OK to have your phone loose in your vehicle and nearby while driving, resisting the urge to interact with it is critical.
“If you receive a text message or a phone call and the screen illuminates and you look at the screen to see who’s calling you or who might be texting you, that would constitute use,” Halskov said.
