Software disabling mobile phones while driving no shield from Motor Vehicle Act: B.C. Court of Appeal

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      Is holding a mobile phone with software that disables use while driving exempted from the Motor Vehicle Act?

      A B.C. Court of Appeal addressed this question in a case involving a man who was ticketed for allegedly using an electronic device.

      No is the short answer.

      Patrick Forster Tannhauser had a cellphone on top of the steering wheel of his car while he was driving.

      The Motor Vehicle Act prohibits holding an electronic device in a position in which it may be used.

      Does this cover holding a cellphone even when some or all of its immediate functions are disabled?

      “I conclude it does,” Chief Justice Robert James Bauman declared in his written reasons.

      Justices Lauri Ann Fenlon and Gregory James Fitch agreed.

      A judicial justice acquitted Tannhauser on the basis that the cellphone was not in a position that it can be used because it had disabling software.

      A summary conviction appeal judge upheld the acquittal, reasoning that the mobile phone cannot be considered an electronic device because it was disabled.

      Government lawyers brought the matter for appeal, and they succeeded.

      “A cellphone remains an ‘electronic device’ within the meaning of the MVA regardless of its immediate functionality,” according to Bauman.

      Bauman noted that the law provides for certain exemptions on holding electronic devices.

      These exemptions include using a phone “while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic”.

      “The legislature has carefully carved out exceptions to the general prohibition on cellphone use, and has not created an exception for a cellphone without immediate functionality,” Bauman wrote.

      The chief justice stressed that the MVA “prohibits the holding of a device in certain positions, not the holding of a device with certain functions”.

      “In my view, holding an electronic device on top of a steering wheel, in clear view, is sufficient to constitute holding it in a position in which the device may be used,” Bauman stated.

      Bauman also rejected the reasoning that a mobile phone cannot be considered an electronic device when its functions are disabled.

      The chief justice used the logic in the “ordinary understanding of objects” to address this matter.

      “A lamp unplugged is still a lamp; a cellphone turned off (or with the phone function otherwise disabled) is still a cellphone,” Bauman wrote.

      Bauman ordered a new trial, “if the Crown is of a mind to proceed at this time”.