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MOTOR VEHICLES AND HIGHWAY TRAFFIC - Rules of the road - Use of electronic device

Thursday, September 02, 2021 @ 5:35 AM  

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Appeal by Rajani from a decision upholding his conviction for using an electronic device while driving. The officer who issued the violation ticket observed the appellant looking down while driving. When the officer approached the vehicle, he saw a cell phone connected to a cord face-up in the appellant’s lap. The appellant testified his cell phone was wedged between his thigh and the car seat. The judicial justice found the precise location of the phone was irrelevant as it was a potential distraction and was in use because it was being charged. On appeal, the Supreme Court judge agreed the judicial justice erred in his reasoning but found that, even on the appellant’s evidence, the phone was being supported in a way that permitted its use. She found the appellant’s leg placement impacted the phone’s position such that it was being held within the meaning of the Motor Vehicle Act and upheld the conviction by applying the curative proviso.

HELD: Appeal dismissed. The word “holding” in s. 214.1(a) of the Motor Vehicle Act was not restricted to the act of holding with one’s hands but rather included physically grasping, carrying or supporting an electronic device with any part of one’s body in a position in which the device might be used. The Supreme Court judge’s broad interpretation of “holding” best aligned with the legislative purpose of preventing death and injuries associated with distracted driving because it captured more potentially distracting conduct than the narrow interpretation urged by the appellant. The judge did not err in finding the appellant’s conduct was prohibited by the Act. The judge did not err in applying the curative proviso as the case against the appellant was overwhelming. The appellant’s conviction was inevitable on either his account or the officer’s version. There was no need to send the matter back for rehearing.

R. v. Rajani, [2021] B.C.J. No. 1627, British Columbia Court of Appeal, L.A. Fenlon, G.B. Butler and J.C. Grauer JJ.A., July 27, 2021. Digest No. TLD-August302021008