Her Majesty the Queen - v. -, 2011 SKPC 99

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 099 Date: June 15, 2011 Information: 7270280 Location: Moose Jaw, Saskatchewan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Amber Lee Lebrun Appearing: Mr. Brian Hendrickson For the Crown In Person For the Accused DECISION M.T. GORDON , J [ 1 ] Amber Lee Lebrun is charged with using electronic communication equipment while driving a motor vehicle on a highway contrary to

section 241.1 of The Traffic Safety Act , S.S. 2004, c.T.-18.1.

[ 2 ] The trial was held April 13, 2011, and adjourned to June 15, 2011 for decision. [ 3 ] The facts are relatively straightforward. Essentially the only difference between the Crown and defence evidence is whether the truck operated by Ms. Lebrun was moving when she was observed holding her cell phone at her left ear. [ 4 ] Constable Lawrence was on patrol in an unmarked police car, travelling south on Main Street North, looking for traffic infractions he noted a dark, four door truck stopped at the stop sign (facing west) at Diefenbaker Drive and Main Street.

It looked like the driver was holding a cell phone in her left hand which was at her left ear. [ 5 ] Constable Lawrence observed this truck cross the two lanes of northbound traffic on Main Street and onto the median road which allows access to both the north and south lanes of Main Street. He noticed the cell phone in her left hand. He continued to proceed south and drove by her. The truck continued, crossed the southbound lanes of Main Street, driving behind the police vehicle.

At this point the officer backed into the median area and turned to follow the truck. [ 6 ] The police officer testified this truck was moving when he observed the driver talking on a cell phone. He subsequently activated the police vehicle lights and stopped the truck. Amber Lebrun, the accused in the within proceedings was identified as the driver. [ 7 ] Ms. Lebrun stopped as required and was inquisitive as to why she had been stopped. [ 8 ] Ms. Lebrun testified that she was on her way from the exhibition grounds, where her daughter was participating in a 4-H show, to the Days Inn.

Her daughter was having an asthma attack and Ms. Lebrun was returning to the hotel to retrieve the medication. It was Ms. Lebrun’s evidence that she heard the cell phone and noticed it was from her daughter. She testified her vehicle was in motion when the phone rang. She stopped her vehicle in the median area connecting north and southbound lanes, before having a quick conversation with her daughter. Before answering the call she checked her mirrors and thought she had stopped in a safe place. She admitted that she had not put the truck in “park” as the call was to be very short.

Issue [ 9 ] Does the evidence prove beyond a reasonable doubt that Amber Lebrun was using an electronic communication device contrary to

section 241.1 of The Traffic Safety Act ? [ 10 ] If so, did Ms. Lebrun exercise due diligence, in that she took all reasonable steps to avoid the unlawful event. Analysis [ 11 ]

Section 241.1(1) and (2) of The Traffic Safety Act recites as follows: (1) (a) “electronic communications equipment” means a cellular phone or other prescribed equipment;

(b) “make a phone call” means to make, answer or end a phone call, or to transmit or receive voice communication; (c) “new driver” means a new driver as defined in the regulations; (d) “use” means, with respect to electronic communications equipment, to use the electronic communications equipment to make a phone call, text, talk, email, or surf or access the Internet, or for any other prescribed purpose.

(2) No driver shall use electronic communications equipment while driving a motor vehicle on a highway. [ 12 ] In the case of R. v. Schafer , 2011 SKQB 127 , Mr. Justice Popescul notes that this type of legislation varies between the provinces. At paragraph 13 he states: In Saskatchewan it is not an offence to hold or handle a cellular phone while driving on a highway unless one is using it for one of the express purposes referred to in s. 241(1)(d).

It is an error in law to find someone guilty of handling a cellular phone, when mere handling, in and of itself, is not an offence. [ 13 ] In the present case, I am satisfied beyond a reasonable doubt that Ms. Lebrun was using the phone to talk, as enumerated in s. 241.1(1) (d). [ 14 ] The next question is whether Ms. Lebrun was “driving a motor vehicle on a highway” within the meaning of s. 241.1(2) . [ 15 ] There is no definition of driving in The Traffic Safety Act . Black’s Law dictionary gives the following

definitions: Drive - to control the motive power, as of a motor vehicle. - to compel, urge or move in some manner or direction. Driving - to urge forward under guidance, compel to go in a particular direction, urge onward, and direct the course of. [ 16 ] The police officer’s evidence is that he thought she was holding a cell phone to her ear. He testified he needed to get a better look. He then stated she drove behind him, crossing Main Street, as he was heading south on Main Street. It was at this time the officer testified that Ms. Lebrun was holding a cell phone to her ear. [ 17 ] I accept Ms.

Lebrun’s evidence that she had stopped her vehicle and it was not in motion when she answered her phone and had a brief conversation with her daughter. The officer, in my view, did not have a good opportunity to observe as Ms. Lebrun was behind him. It is evident she gave some consideration as to where to stop and take this call. She pulled over on the median, the road allowing access from one side of Main to the other. She concluded her evidence by stating the entire time she was talking on the phone her vehicle was stopped.

She admits she did not put the vehicle in “park”. [ 18 ] In my view, the fact she did not put the vehicle in “park” is not determinative of the issue. I accept that she was stopped, and not driving, for that short period of time she was talking on her cell phone. [ 19 ] The mischief that this

section of The Traffic Safety Act is to address, is drivers being distracted while driving. Operating a motor vehicle safely takes all one’s concentration. [ 20 ] The within case is different than a driver talking on a cell phone while stopped at a red light. In that case, as soon as the light turns green the driver must respond. In the within case Ms. Lebrun was in control when she proceeded or drove.

[ 21 ] The final result is I accept Ms. Lebrun’s evidence and find that she was not using an electronic communication device while driving. [ 22 ] Even if I am wrong and driving can be said to include a vehicle that is stationary but still in drive, I find that Ms. Lebrun exercised due diligence and took all reasonable steps in the circumstances. [ 23 ] Accordingly, I find Amber Lee Lebrun not guilty. Dated at Moose Jaw, Saskatchewan, this 15 th day of June, 2011. ____________________________________ M.T. Gordon, J