IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Sgt. F. Ullrich was engaged in cell phone violation enforcement on the material date and time at the 1500 block of East King Edward near Kingsway in Vancouver, B.C.

[2]           To this end, he positioned himself on a flight of stairs at a height of about 8 feet near a railing by the side of East King Edward, giving him a clear and unobstructed view of traffic approaching him at a distance of approximately 25 feet.

[3]           He occasioned to observe the Disputant, Anderson, driving to a halt behind a few cars that were in compliance of the traffic lights.

[4]           Sgt. Ullrich observed Anderson in the driver’s seat with a cell phone held in her leg just below her thigh. He concluded it was a cell phone by its distinguishing features.

[5]           As a result, there was a traffic stop and Violation Ticket AJ07346043 was issued to her after determination of her identity.

[6]           Anderson was charged with an offence of using an electronic device while driving, contrary to Section 214.2(1) of the Motor Vehicle Act.

[7]           At trial, Sgt. Ullrich’s evidence met a prima facie proof of the elements of the offence and Defence was called.

[8]           Anderson’s defence was that she was not “using” the cell phone. Her car was hands-free equipped, but without a mount. Her phone was merely being held in her leg below her thigh. She contends that her phone was securely fixed to her leg and that according to B.C. Road Safety Guides she was not contravening the law.

[9]           She further contends that Sgt. Ullrich should not be believed because her name was misspelt in the Violation Ticket as ANDERSEN instead of ANDERSON.

[10]        At the conclusion of trial, there was incontrovertible evidence that Anderson was holding an electronic device on her person while driving in the surreptitious manner described by the parties.

[11]        Prohibition against use of electronic device is contained in Section 214.2(1) of the Motor Vehicle Act:

[12]        “Use” is defined, inter alia, in Section 214.1(a) of the Motor Vehicle Act:

[13]        Installation of electronic device: Section 4 of BC Regulations 308/2009:

[14]        Section 7(1) of B.C. Regulations 308/2009 provides that a person may use an electronic device in a hands-free telephone function while driving or operating a motor vehicle on a highway, if the device

[15]        Disputant was holding a cell phone in his left hand up to his left ear whilst driving to an intersection of roads, and convicted by a Judicial Justice for using an electronic device.

[16]        His appeal against conviction by the Learned Judicial Justice at first instance was dismissed by Mr. Justice Truscott of the BC Supreme Court who held that:

[17]        “…..it does not matter if Mr. Judd was not 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.”

[18]        The Disputant was observed by police holding a cell phone whilst driving, and looking down. His argument at first instance, and at his Appeal before Madam Justice Maisonville in the BC Supreme Court was that charging his cell phone was not “use” as proscribed by the Motor Vehicle Act.

[19]        Madam Justice Maisonville’s holding was that charging the phone to be the use of one of the phone’s functions.

[20]        She further held that there must be holding, and further, an accompanying act. The Appeal was as a result dismissed.

[21]        The Disputant was observed by a police officer looking downwards whilst driving and when stopped, a cell phone was found wedged between the folds of the passenger seat such that the screen was facing the driver.

[22]        Mr. Justice Blok of the BC Supreme Court concurred with Madam Justice Maisonville in R. v. Jahani, in concluding that the holding of the device must be done together with another accompanying act to constitute “use” of the device.

[23]        The Appellate Judgments in R. v. Jahani and R. v. Partridge holding that to constitute “use”, there must be a holding of the device and an accompanying act, are in my respectful view, irreconcilable to the plain and unambiguous meaning of the word “use” as defined in Section 214(1)(a) of the Motor Vehicle Act:

[24]        It is also irreconcilable to the earliest BC Supreme Court decision in R. v. Judd (2015).

[25]        It is noteworthy that the operative words of the definition of “use” are “holding….in a position in which it may be used”.

[26]        That definition does not comprise or envisage both a holding and an accompanying act.

[27]        The Appellate decisions in R. v. Jahani and R. v. Partridge on the meaning of “use” being demonstrably irreconcilable to the provision of Section 214.1(a) of the Motor Vehicle Act, and irreconcilable to the holding of Mr. Justice Truscott in R. v. Judd, I would respectfully apply the earliest view in R. v. Judd.

[28]        The cell phone being surreptitiously held in the manner described by both parties was not installed or securely fixed to the motor vehicle in accordance with Section 4(a) of BC Regulations 308/2009.

[29]        That manner of holding as described does not avail the defence of hands-free use if worn securely on the person’s body as contemplated by Section 7(1)(a) of BC Regulations 308/2009.

[30]        The Defence objection on the ground of her name being misspelt as earlier mentioned, can be easily disposed of by reliance of the decision in R. v. Cote (1977) 353 SCC where it was held that a simple misspelling in name is not necessarily a defence leading to a quashing of the ticket.

[31]        Ultimately, the fundamental question for consideration is whether the device was held in a position in which it may be used. The answer is in the affirmative.

[32]        Upon a true and proper construction of the facts and law pertaining to the case at hand and mindful of Elmer Driedger’s authoritative guidance on construction of statutes that: “a statute is to be so construed as to suppress the mischief and advance the remedy, thus giving the courts considerable latitude in achieving the objective of the legislature despite any inadequacy in the language employed by it,”

[33]        I arrive at a decision that the Disputant is guilty as charged.

[34]        To be determined after submissions of Crown and Defence at the adjourned hearing date.