R. v. Movassaghi, 2018 BCPC 195 (CanLII)
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2018 BCPC 195 |
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Date: |
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File No: |
AJ07610315 |
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Registry: |
Vancouver |
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IN THE PROVINCIAL COURT OF BRITISH COLUMBIA
REGINA
v.
MEHRZAD MOVASSAGHI
REASONS FOR JUDGMENT
OF THE
JUDICIAL JUSTICE B. ADAIR
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Cst. Fodor |
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Counsel for the Defendant: |
B. Movassaghi |
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Vancouver, B.C. |
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Date of Hearing: |
July 30, 2018 |
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Date of Judgment: |
July 31, 2018 |
[1] The trial of this matter was heard in Vancouver on July 30, 2018. At that time the defendant was found guilty and a fine was imposed. However, given the importance and currency of the legal issues involved, I reserved the right to provide brief explanatory written reasons. These are those reasons.
A) The Charge
[2] The defendant was charged that on December 09, 2017 at Vancouver, British Columbia, he held or used an electronic device while driving, contrary to Section 214.2 of the Motor Vehicle Act.
B) The Evidence
1) The Crown
[3] Cst Fodor of the Vancouver Police gave clear and credible evidence which was not shaken in any significant way on cross-examination. Reduced to its essentials, his evidence was that he was in an unmarked police pickup truck, in the #3 lane of Granville Street, with a somewhat elevated view into cars around him. He was northbound on the evening of December 09, 2017. It was dark. The defendant's car was passing him slowly on his left, in the #2 lane. The officer looked in through the passenger side window and saw the Defendant holding a cell phone in his right hand. The screen was brightly lit, and the officer saw pictures on the screen.
[4] Officer Fodor stopped the vehicle, satisfied himself of the identity of the defendant using the British Columbia Drivers Licence that was presented, and issued the ticket.
2) The Defendant
[5] The Defendant gave evidence. He agreed with the officer's version regarding the positioning of the vehicles, and that his vehicle was passing the police vehicle.
[6] With respect to the cell phone, the Defendant testified that he simply picked up his Samsung Galaxy cell phone from the passenger seat with his right hand, and then put it into his coat pocket. He denies that the screen was lit or that there were any pictures on the screen.
3) Assessment of the Evidence
[7] Applying the Supreme Court of Canada decision of R. v W(D), 1991 CanLII 93 (SCC), [1991] 1 SCR 742, I observe that the Defendant was not seriously shaken in cross-examination. Without in any way discrediting the evidence of Officer Fodor, I will proceed on the basis that the Defendant's testimony about the handling of the cell phone is correct.
C) The Legal Issue
[8] Does the simple action of moving the cell phone from the passenger seat with his right hand, and then putting it (while driving) into the coat pocket of the coat he was wearing, constitute the offence of using the electronic device?
[9] The relevant provision is Section 214.1 of the Motor Vehicle Act. The Samsung Galaxy cell phone is clearly an electronic device as defined in that section.
[10] "Use" is defined (among other things) as:
(a) holding the device in a position in which it may be used
D) Defence Position
[11] Counsel for the Defendant submitted that the simple act of moving the cell phone was insufficient to make out the charge. He relied specifically on the decision of Judicial Justice Hunter Gordon in R. v Tannhauser, 2018 BCPC 183, and particularly paragraphs 18-26.
[18] In my view the phrase ‘in a position in which it may be used’ qualifies ‘holding the device’. Simply holding an electronic device is not sufficient. If it were, there would be no need to add the remaining words.
[19] Here, one is faced with the interpretive conundrum of having the same word, ‘used’, in the definition of the word being defined, a definition I note which broadens the ordinary meaning of the word.
[20] I have considered the principles of interpretation, including the oft-quoted principle from Elmer Driedger quoted in paragraph 55 of Jahani (infra), as well as the teleological approach stated by the Supreme Court of Canada in Québec (Communauté urbaine) v Corp. Notre-Dame de Bon Secours 1994 CanLII 58 (SCC), [1994] 3 S.C.R. 3.
[21] In my view, it appears that sections 214.1 - 214.6 address ‘distracted driving’ as a result of electronic devices. There is much in the public domain illustrating the consequences of drivers being distracted by electronic devices.
[22] The Legislature has not banned electronic devices for drivers (except class 7 drivers), but set stringent exceptions to their use.
[23] Part 3.1 of the Act and the associated Regulation address not only actual distracted driving but also the potential of it.
[24] 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.
[25] Because the enforcement officer is left drawing conclusions from what the officer can observe from outside the vehicle and to avoid the driver escaping liability simply by testifying that she or he was doing something innocuous with an electronic device, the Legislature has drawn the bright-line of holding a device where it is potentially distracting, whether in fact it is or is not distracting.
[26] But in my view, the Legislature has not prevented the driver from mounting a defence based on proof that he or she could not have been distracted by the device’s functions.
[12] Particular reference was made to paragraph 18 where the Court concluded:
"Simply holding an electronic device is not sufficient."
[13] With the greatest of respect to the learned Judicial Justice Gordon in my view, that comment is simply wrong, and does not take into account the plain wording of the statute, or the pre-existing case authority.
[14] A cogent example is the decision of Judicial Justice Burgess in R. v Bainbridge, 2018 BCPC 101. The Defendant in that case testified that he was just holding the phone (from force of habit) and that he was not using any of its functions. He argued that the Crown would have to prove that he was holding the phone and actually using one of its functions.
[15] In rejecting that proposition (and convicting the Defendant) the learned Judicial Justice reviewed a number of recent British Columbia cases. He concluded, at paragraph 26:
"Section 214.1 is very clear in its language in "use" (a) which provides that "use" is holding the phone in a position in which it may be used. Holding the phone in a position in which it may be used, is use..."
[16] At paragraph 28, Judicial Justice Burgess cites R. v Judd, 2015 BCSC 1926. In paragraph 8 of Judd, the Court stated:
"...It does not matter if Mr. Judd was talking, because the section allows for conviction if in fact he was simply using it by holding the device in a position in which it may be used, as the section indicates."
[17] In the unreported case of R. v. Corrigan, (AH79560051, March 18, 2015, Vancouver Registry), the Judicial Justice Burgess considered the defendant’s argument that since the battery on his cell phone was dead, his phone was therefore not then capable of any function, that he could not be guilty of the charge. He was just holding it in his hand, and since it was “dead” it was no different than holding a brick. In rejecting that proposition, the Court highlighted specifically the wording of 214.1(a), namely that simply holding the cell phone in a position in which it may be used constitutes the offence, even if it is temporarily inoperative.
[18] In the decision of R. v. Schull, 2013 BCPC 132, Judicial Justice Joseph-Tiwary considered the defence argument that (para 4):
[4] … the Crown is required to prove that the device held by the disputant was capable of receiving or transmitting telephonic communications, electronic data, mail, or text messages…”
before a conviction could be registered.
[19] After a careful review of the Ontario cases advanced by the Defence, the wording of the British Columbia Motor Vehicle Act and Regulations, the learned Judicial Justice rejected that argument. At paragraph 17 of her decision she concluded:
[17] I am unable to find that there is a requirement for the Officer to prove beyond a reasonable doubt that the alleged device seen had the capabilities described in s. 214.1(b) where an officer alleges that the device being held was a cell phone or hand-held electronic device that includes a telephone function.
E) Conclusion
[20] Based on the plain wording of the statute, and on the pre-existing case law at both the Provincial Court and the Supreme Court level, I am of the view that a conviction is justified if:
a) The defendant is driving or operating a motor vehicle
b) The device is an electronic device as defined
c) The device is held (however briefly) in a position in which it may be used (keeping in mind the numerous possible uses of such devices)
[21] In the case at bar, it is difficult to imagine a better position to hold a phone for possible use than to have it in one’s hand.
[22] I find the Defendant guilty as charged.
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B. Adair
Judicial Justice