Written by Daniel Standing LLB., Editor at First Reference Inc.
According to Transport Canada, distracted driving happens when the driver’s attention is taken from the road and is focused on something else, like texting, talking to someone in the car or on the phone, eating or drinking, or using the entertainment or navigation system. It is a serious problem; statistics in the National Collision Database reveal that distracted driving contributed to an estimated 21 percent of fatal collisions and 27 percent of serious injury collisions in 2016. In response to the threat posed by distracted driving, all Canadian jurisdictions introduced penalties in their motor vehicle legislation. The penalties vary widely, but in all cases busted distracted drivers can expect to receive a stiff fine, and possibly a licence suspension for several days.
When cellphone cases make their way to court, like in R. v Rajani, 2021 BCCA 292 (CanLII), it is first at the provincial court level. There, the focus is often on whether the driver’s actions fit the prohibition on “using” an electronic device while driving, except in emergencies. In British Columbia, the legislation defines “use” to include, among other things, “holding the device in a position in which it may be used.”
Zahir Rajani’s case tested the limits of what it means to “use” a cellphone while driving. On March 15, 2019, he was operating his vehicle with his phone plugged in and either resting on his right lap or wedged between his right thigh and the seat, with the screen facing up. There was no evidence that the screen was lit. A police officer noticed him looking down at the phone and issued him a ticket for $300 under section 214.1 of the Motor Vehicle Act. The issue was whether Mr. Rajani was “using” the phone as the Act prohibited. More specifically, the question was whether he was “holding” it even though his hands were not touching it.
At provincial court, the judge upheld the ticket, saying the phone’s precise location made no difference. The judge ruled that whether the phone was resting on Rajani’s lap or wedged between his leg and the seat, it was a potential distraction and was in use because it was being charged.
Mr. Rajani appealed this decision to the BC Supreme Court, which upheld the conviction despite the lower court’s mistake in grounding the conviction in a “potential distraction.” The Supreme Court justice determined that the phone was being supported in a way that permitted its use, and that it was being “held” within the meaning of the Act. The judge rejected Mr. Rajani’s argument that “holding” is something that must be done with the hands. Such an argument, she reasoned, was out of sync with the law. If holding meant something that was done only with the hands, then drivers could operate their vehicles with their devices in, between, tucked under or supported by other body parts.
Undeterred, Mr. Rajani appealed again, this time to the Court of Appeal for British Columbia. There, the Court set out the widely accepted framework for how it would interpret the legislation: the words would be interpreted “in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
Applying this principle to the prohibition on “holding” an electronic device, the Court first noted that “electronic device” is broadly defined to include not only those that are handheld but also global positioning systems and televisions. The implication here is that the Legislature intended that the use of larger or fixed objects would still be prohibited even if they were not held in the driver’s hands at the time.
Second, the Court held that the summary conviction appeal court was right to close off the loophole that would allow drivers to escape liability just because their hands were not involved. The law aims to prevent death and injuries caused by distracted driving. Mr. Rajani’s interpretation was too narrow and did not accord with this legislative purpose.
Third, the Court provided several dictionary definitions of “hold”, all of which included an aspect of supporting an object or keeping it in a particular place or position. For these reasons, the Court of Appeal upheld the conviction. As for the provincial court judge’s initial error in convicting based on the phone being a possible distraction, the Court found that the case against the accused was overwhelming. While the error was serious, it did not result in a miscarriage of justice or a substantial wrong against Mr. Rajani. For these reasons, his appeal was dismissed.
Takeaways for employers
Given the expansive interpretation that courts give to the meaning of “use,” the deck is stacked against drivers who are caught using a cellphone while driving. In operations where workers are mobile and rely on electronic devices to stay connected to the workplace, systems should be implemented to ensure that employees are aware of the law and have safe alternatives to using their phones while driving. Employers can also consider implementing an electronic device usage policy which could, depending on the facts, support a disciplinary measure if an employee chooses not to follow the rules.