R. v. Mirza, 2023 BCSC 881

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Mirza, 2023 BCSC 881 Date: 20230428 Docket: 33366-1 Registry: Vancouver Rex v. Owais Ahmed Nasir Mirza Before: The Honourable Justice Fitzpatrick On Appeal from: Provincial Court of British Columbia, November 2, 2022 ( R. v. Mirza , Richmond File No. EA269350-1 Oral Reasons for Judgment Counsel for the Crown (Respondent): S. Bains The accused, appearing in person (Appellant): O. Mirza Place and Date of Hearing: Vancouver, B.C. April 28, 2023 Place and Date of Judgment: Vancouver, B.C.

April 28, 2023 [ 1 ] THE COURT: On December 15, 2021, Owais Mirza was issued a violation ticket for using an electronic device while driving contrary to s. 214.2(1) of the Motor Vehicle Act , R.S.B.C. 1996, c. 318 [ Act ]. That provision of the Act is commonly referred to as the distracted driving prohibition. [ 2 ] Mr. Mirza contested the ticket. On November 2, 2022, the trial was convened before Judicial Justice C. Maddock. In the result, J.J. Maddock convicted Mr. Mirza and upheld the fine imposed. Mr. Mirza now appeals his conviction to this Court. Proceedings Below [ 3 ] The evidence at the trial before J.J.

Maddock was given by Constable Fenety, the officer who issued the ticket, and Mr. Mirza. [ 4 ] On December 15, 2021, Cst. Fenety testified that he was conducting electronic device and seatbelt enforcement at the intersection of 64th Avenue and 176th Street in Surrey, BC. He was observing westbound traffic to see if anyone was violating those provisions of the Act . Cst.

Fenety stated that, even if he did not observe any violations of the Act in respect of the moving traffic, he would often walk through the vehicles that were stopped at the light at the intersection to observe whether there were any violations. [ 5 ] At approximately 3:17 p.m., Cst. Fenety walked between the two lanes of traffic that were stopped at the red light. Cst. Fenety came up along on the passenger side of Mr. Mirza's vehicle, close to the passenger side window. Cst.

Fenety said that he observed: ... a dark-blue rectangular, flat cell phone laying lengthwise, horizontally , on the driver's right thigh with the screen upwards. The screen was not lit. [ 6 ] Cst. Fenety testified that when Mr. Mirza saw him, Mr. Mirza put the phone on the front passenger seat. As was his usual practice, Cst. Fenety directed Mr. Mirza to turn into the Chevron gas station nearby. At that point, the officer requested that Mr. Mirza produce his driver's licence and insurance papers. Cst. Fenety then issued the ticket in question. [ 7 ] Mr.

Mirza testified that his usual practice is to leave his cell phone between the passenger seat and the driver's seat. He testified that that he had no intention of using his phone while it was in that position. He testified that the phone was locked. Mr. Mirza said that his hands were on the steering wheel. Finally, Mr. Mirza testified that his phone was "leaning on my body". [ 8 ] At trial, Mr. Mirza produced a photograph of the inside of his vehicle.

He argued that the photograph supported his testimony that the phone was not on his leg and that it was in the pocket between the passenger and driver's seat. [ 9 ] In his reasons for judgment, J.J. Maddock initially wrestled with the inconsistent evidence as between Cst. Fenety and Mr. Mirza concerning the location of the cell phone. J.J. Maddock noted that Mr. Mirza's evidence on that point was based on his "usual" practice” and not on any direct evidence as to what he had actually done on the day in question. J.J. Maddock also emphasized that Mr.

Mirza’s photograph was not helpful in determining the factual issue in that it did not depict the cell phone. [ 10 ] On this appeal, Mr. Mirza stated that he had another photograph that he had taken of the inside of his car, this one depicting the

phone. I have declined to consider that photograph on the basis that this is an appeal from J.J. Maddock's decision and that appeal based must be based only on the evidence before J.J. Maddock. In addition, Mr. Mirza did not put forward any basis on which I might have considered this new photograph as fresh evidence. [ 11 ] The discrepancy in the evidence as to the location of the phone was resolved by J.J. Maddock, as follows: [12] There is no evidence that the screen was on. Indeed, the officer, in his evidence, stated, the screen was not lit. The screen was upwards.

Again, if the screen had been placed in a device in between the passenger seat and the driver's seat, in a slot as described by him in his evidence, it would not have been upwards. It would have been sideways. So I do not understand quite what mistake could possibly have been made by the officer. Because the officer's evidence is that the phone was lying flat on his thigh with the screen upwards. Not in a slot, not in any other device other than on his leg. [13] I am satisfied that the phone was lying on the driver's leg . I am also satisfied the screen was not on. I am also satisfied from Mr.

Mirza's evidence that he had both his hands on the steering wheel at the time and did not touch the phone or did not do anything else with the phone, other than having it lying on his leg . [Emphasis added.] [ 12 ] J.J. Maddock considered the case law that bears on the

interpretation of the provisions of the Act that apply in this case, and I will address those in a moment. Having reviewed the facts in light of the relevant case law, at paras. 19–20 of his reasons, J.J. Maddock found that Mr. Mirza had violated s. 214.2(1) of the Act . Specifically, he stated: [19] The short of it is that if it is being held on the lap or on the thigh, it is still holding within the meaning of the statute. … [ 13 ] J.J. Maddock found Mr. Mirza guilty of holding his cell phone in a position in which it may be used, contrary to the Act . Issues On Appeal [ 14 ] The standard of review on this

summary conviction appeal is set out in s. 686(1) of the Criminal Code . Section 686(1) (

a) provides that I may allow an appeal where I am of the opinion that: (

i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence, (ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law, or (iii) on any ground there was a miscarriage of justice; [ 15 ] Mr. Mirza was convicted under s. 214.2(1) of the Act which provides: A person must not use an electronic device while driving or operating a motor vehicle on a highway. [ 16 ] There is no dispute issue in that Mr. Mirza's phone is an “electronic device” as defined in s. 214.1 of the Act . [ 17 ] Mr.

Mirza asserts that he was not “using” his electronic device while driving, such that he did not contravene s. 214.2(1) of the Act . [ 18 ] In s. 214.1 of the Act , "use" is defined as follows: "use" , in relation to an electronic device, means one or more of the following actions: (

a) holding the device in a position in which it may be used ; (

b) operating one or more of the device's functions; (

c) communicating orally by means of the device with another person or another device; (

d) taking another action that is set out in the regulations by means of, with or in relation to an electronic device. [Emphasis added.] [ 19 ] The issue at trial—and reiterated on this appeal—is whether Mr. Mirza was “using” his phone, in that he was “holding the device in a position in which it may be used”. [ 20 ] On this appeal, Mr. Mirza asserts, consistent with his evidence at trial, that his usual practice is to leave his phone in this pouch between the driver and passenger seats. However, at this hearing, Mr. Mirza again concedes that his phone "maybe had been touching his leg a bit".

I take this submission to mean that Mr. Mirza confirms that his phone was leaning on his leg, consistent with his evidence at trial that it was “leaning on his body”. Mr. Mirza also again emphasizes that his hands were on the steering wheel, he was not looking at his phone and he was not using any of the functions of the phone, such as sending a text or email, making or received a phone call or employing the GPS. In all of these circumstances, Mr. Mirza asserts that he was not guilty under s. 214.2(1) of the Act . Discussion

[ 21 ] The first issue is a factual one as Mr. Mirza advanced submissions as to where his phone was located, contrary to the findings of J.J. Maddock. [ 22 ] I have reviewed the evidence that was before J.J. Maddock and his findings of fact. In my view, those findings are supportable on the basis of the evidence before him. J.J. Maddock rejected Mr. Mirza's assertion that the phone was in the pouch and accepted Cst. Fenety’s evidence that the phone was on Mr. Mirza’s leg or thigh.

In particular, he accepted the detail description provided by the officer in the circumstance where the officer was a short distance from the inside of the vehicle in terms of observing the location of the phone. It will, in any event, become clear that it would not have made any difference at the end of the day, even if Mr. Mirza’s evidence was accepted—i.e. that his phone was leaning on his body or touching his leg, rather than being “on his leg”. [ 23 ] The second issue arises from Mr. Mirza's assertion that the phone was not being used in terms of the various functions of his phone.

There was no evidence at trial as to what phone functions were available to Mr. Mirza. In any event, I will presume that the functions on the cell phone would have been similar to most cell phones. [ 24 ] The first decision on this point, as referred to by J.J. Maddock in his reasons, is R. v. Tannhauser , 2020 BCCA 155 . In that case, Mr. Tannhauser received a ticket for having his cell phone on the steering wheel of his car, where he was holding it while he was driving. Mr.

Tannhauser argued that, since the cell phone was equipped with software that had disabled its functions while the vehicle was in motion, he could not have made any use of it. On that basis, Mr. Tannhauser argued that his cell phone was not an “electronic device” as defined in the Act and that he was not “using” it within the meaning of the Act . [ 25 ] The court in Tannhauser rejected the arguments advanced concerning the functionality of the phone in stating that: [4] … A cellphone remains an “electronic device” within the meaning of the MVA regardless of its immediate functionality.

Further, the MVA prohibits the holding of a device in certain positions, not the holding of a device with certain functions. 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. Viewed in its entire context, there is no legitimate basis on which to conclude such an exception exists in the MVA . [ 26 ] In Tannhauser at paras. 33–34 , the court emphasized the statutory objects of the Act in terms of seeking to curtail distracted driving.

Those objects are to enhance road safety and prevent deaths or injury, in that the potential consequences from distracted driving can be catastrophic in terms of collisions and injuries. [ 27 ] In Tannhauser at paras. 51–58 , the court further addressed the functionality issue. I would emphasize for the purpose of these oral reasons the following portions: [51] ... holding the cellphone where the screen can be viewed is sufficient to constitute holding it in a position in which it may be used. … [57] Thus, the ordinary meaning of the term “use” and legislative intent both support an

interpretation of the provision as capturing a device with no immediate functionality. [ 28 ] At paras. 66–67 of Tannhauser , the court stated that, if the legislature had intended to allow drivers to hold electronic devices without immediate functionality, they would have said so. [ 29 ] In my view, Tannhauser provides a complete answer to Mr. Mirza’s arguments on this appeal in relation to the fact that he was not using the phone in terms of its functions. To accept Mr. Mirza's submission is to completely ignore the reasoning in Tannhauser .

That decision makes clear that the functionality of the “electronic device” is not the issue; rather, it is the phone itself that is the issue. [ 30 ] That brings me to Mr. Mirza’s submission’s concerning the fact that he was not holding the phone with his hands . Three court decisions are relevant to this argument. [ 31 ] In R. v. Sangret , 2019 BCSC 2131 , Justice Watchuk was addressing a distracted driving case. Mr. Sangret, who received the ticket, had his electronic device mounted to the dashboard of his vehicle. The issue was therefore whether Mr.

Sangret had been “using” the device within the meaning of s. 214.1 of the Act . The Crown specifically relies on the following passage: [14] On the facts of this case, there was no evidence that appellant performed any such accompanying act. There was no evidence that he watched, operated, or communicated by means of the device in any way. Nor was there evidence that he was “holding” the device as prohibited by s. 214.1(

a) of the MVA . In its plain meaning, holding means physically grasping, carrying, or supporting something . In my view, s. 214.1(

a) is to be interpreted as a prohibition against a device being personally held by the driver. In this case, the device was installed in a position in which it was visible to the appellant, but the appellant was not personally holding it. [Emphasis added.] [ 32 ] As a result of the reasoning in Sangret , Watchuk J. allowed the appeal and overturned the conviction in the court below. [ 33 ] In R. v. Rajani , 2020 BCSC 779 , Justice MacNaughton was addressing another distracted driving case where Mr. Rajani's cell phone was wedged between his right thigh and the car seat, facing up" and connected to a cord.

Again, the issue was “use”, and specifically, whether the phone was being held. At paras. 19–21, MacNaughton J. references Sangret and agrees with the

interpretation of “holding” in that decision. [ 34 ] The reasoning of the Court in Rajani was that it was not necessary for a driver to “hold” the device in his or her hands and that “holding” may occur by the simply supporting of the device with any part of that person’s body:

[25] Even on Mr. Rajani’s evidence, the phone was being supported in a way that permitted its use. Having the phone wedged between his thigh and the seat, facing up, is having it supported by a part of his body and it put the phone in a position in which it could be used. It was “held” in a position in which it could be used. [26] The fact that Mr. Rajani’s leg placement would have impacted the phone’s position supports a conclusion that it was being “held” for the purposes of this provision.

If the phone was wedged between his leg and the seat, and he moved his leg farther away from the phone, the phone would have moved to a different position. This evidences that wedging the phone between one’s leg and the seat is supporting or “holding” the phone in a position that permits its further use. [27] To interpret “holding” as being restricted to an action done with one’s hands is not in harmony with the scheme of the distracted driving provisions of the MVA . Such an

interpretation would allow drivers to operate their vehicles with electronic devices in their laps, between their thighs, tucked under their arms or chins, or supported by other parts of their bodies. [ 35 ] This Court’s decision in Rajani decision was appealed and the reasons of the appeal court are indexed at 2021 BCCA 292 . J.J. Maddock referred to Rajani in his reasons, but only the decision of MacNaughton J. in this Court. It is not clear to me why he did not also refer to the appeal, which would certainly have been published prior to Mr.

Mirza’s trial in late 2022. [ 36 ] In the Rajani appeal, the court considered the facts in that Mr. Rajani’s cell phone was wedged between his right thigh and the car seat, facing up. On appeal, the court in Rajani found that this constituted sufficient use of the device within the meaning of the Act . [ 37 ] In Rajani at paras. 10–13, the court considered the issue as to whether “holding” was restricted to holding the device in one’s hands. The court begins by emphasizing the

interpretation principles relevant to the Act and its provisions, consistent with its earlier comments in Tannhauser . The appeal was dismissed with succinct reasons. The court stated: [12] ... the judge’s broad

interpretation of “holding” best aligns with the Legislature’s object of preventing death and injuries associated with distracted driving because it captures more potentially distracting conduct than the narrow

interpretation urged by the appellant. I agree with the judge that “holding” should not be interpreted in a manner that “would allow drivers to operate their vehicles with electronic devices in their laps, between their thighs, tucked under their arms or chins, or supported by other parts of their bodies”: at para. 27. … [15] In

summary on this ground of appeal, in my view, the judge did not err in finding that Mr. Rajani’s conduct was prohibited by the Act . “Holding” in s. 214.1(

a) means physically grasping, carrying, or supporting an electronic device with any part of one’s body in a position in which the device may be used. [ 38 ] At this hearing, Mr. Mirza takes significant issue with the

interpretation of “use” applied by J.J. Maddock. Again, J.J. Maddock found as a fact that Mr. Mirza’s phone was laying on his leg and, even on Mr. Mirza’s own evidence, it was leaning against his leg or being supported by his leg. [ 39 ] Mr. Mirza argues that his hands were on his steering wheel; he was not touching the phone with his hands; he was not looking at his phone; and it was locked and blank. I accept these were the relevant fact. [ 40 ] In that event, Mr. Mirza argues that the Act only prohibits him from having the phone in his hands so as to be “using” it.

He says that is consistent with the safety objectives that arise under the Act . [ 41 ] Mr. Mirza suggests that the decisions I have discussed above are distinguishable. I agree that there are factual distinctions, although Rajani is very similar to the facts here. Mr. Mirza stresses that Mr. Rajani was looking down while driving, presumably at his phone. However, Mr. Rajani was not convicted of using his phone and looking down, nor was he convicted of looking down. He was convicted of simply using his phone while driving or “holding” his phone. [ 42 ] J.J.

Maddock in his reasons stated that he was bound by the Court of Appeal's decision in Tannhauser and, although he did not mention it, he would have been equally bound by that court's decision in Rajani . I am in no different position in terms of being bound by the Court of Appeal’s reasoning and decisions in those cases. As previously stated, J.J. Maddock’s findings of fact are supportable by the evidence before him. In my view, the Court of Appeal’s reasoning in Tannhauser and Rajani can dictate only one result here. I am not at liberty, as Mr.

Mirza had suggested I am, to disregard those decisions. [ 43 ] Accordingly, I cannot conclude that there is any basis under s. 686(1) of the Criminal Code to question J.J. Maddock’s decision in respect of either his factual findings or his application of the law. Accordingly, Mr. Mirza's appeal is dismissed. “Fitzpatrick J.”