Her Majesty the Queen - v. -, 2015 SKPC 24

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 024 Date: March 25, 2015 Ticket No. : 7869827 Location: Moose Jaw _____________________________________________________________________________ Between: Her Majesty the Queen - and - Cory J. Haliwyz Appearing: Rob Parker For the Crown Self-Represented For the Accused DECISION M. GORDON , J [ 1 ] Mr. Haliwyz is charged with using an electronic communication device while driving contrary to s. 241.1(2) of The Traffic Safety Act . Cst. Mohl issued this ticket to Mr. Haliwyz on May 12, 2014.

The officer was in a marked police car heading north on Main Street in the right-hand lane. Mr. Haliwyz was in the inside lane also proceeding north. Cst. Mohl observed Mr. Haliwyz holding a black Iphone and clearly saw Mr. Haliwyz looking at the phone. The officer said he observed Mr. Haliwyz holding the phone in his right hand for approximately 30 to 45 seconds. When the officer stopped Mr. Haliwyz, the offender explained that he had just received a text message from his daughter and that is why he had picked up the phone that was sitting in the console area.

The officer looked at the phone and indeed did see there was an incoming text message. The officer did not see any outgoing response.

[ 2 ] Mr. Haliwyz testified that he picked up the phone in his right hand for a brief moment to see who the text was from. He did not read or respond to the text. He disputes that this was for a period of 30 to 45 seconds. He says he glanced once at the phone and put it down.

He said that the other times he was adjusting the temperature controls in his van as he had three children in the back seat. [ 3 ] On cross-examination he says the phone vibrated and that is why he picked it up and he also says that the text was on a locked screen and that he did not touch or manipulate the phone at all. [ 4 ] The Crown argued that the purpose of this legislation is clearly to guard against and deal with distracted driving. Part of distracted driving is drivers who take their eyes off the road to answer or look at their cell phone or electronic communication device.

The Crown urges me to accept the word “use” in the legislation and “text” as encompassing Mr. Haliwyz’s actions of picking up and looking at the screen. [ 5 ] Mr. Haliwyz simply said mere picking up and looking at the screen of a cell phone or electronic communication device cannot be what is meant or included in this

section of The Traffic Safety Act . [ 6 ] The issue here is as follows. Is the conduct of Mr. Haliwyz an offence within the meaning of s. 241.1(1) and (2) of The Traffic Safety Act ? This

section of The Traffic Safety Act reads as follows: 241.1(1) In this

section and in

section 287: (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. [ 7 ] In R v Schafer , 2011 SKQB 127 [ Schafer ], Popescul J., as he then was, had this to say about the proper statutory

interpretation of this

section at paragraph 9: Generally, it is assumed that legislatures act rationally when drafting legislation and that the

interpretation of that legislation should produce rational results. This principle was explained by Pierre-André Côté, in Stéphane Beaulac, Handbook on Statutory

Interpretation: General Methodology, Canadian Charter and International Law (Toronto: LexisNexis Canada Inc., 2008) at 123 as follows: The product of this rational legislature, the law, is deemed to be a reflection of coherent and logical thought.

Interpretations consistent with the postulate of legislative rationality are therefore favoured over those that are incoherent, inconsistent, illogical or paradoxical. Applying the above principle gives rise to the presumption that the legislature would not include a specific definition of a term if it did not expect that definition to be used in the statute’s

interpretation. Logically, if “use” was to be interpreted as its general dictionary meaning, then the specific definition in the legislation would be pointless. [ 8 ] The Court notes that the Saskatchewan legislation differs from the similar legislation in British Columbia and Ontario which makes “holding or using” a cellular device an offence. At paragraph 13, the Court states as follows: 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(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.

[ 9 ] In R v Farden , 2014 SKQB 340 , Layh J. refers to the Shafer decision and accepts that a person cannot be found guilty under this

section unless the judge finds that the offender’s conduct falls within the definition in

section 241.1 of our Traffic Safety Act . It is not proper to adopt a broader dictionary definition of “use”. Layh J. also states the well-known principles of statutory

interpretation by Elmer A. Driedger, in Construction of Statutes , 2d ed (Toronto: Butterworths, 1983) where the learned author states: Today there is only one principle or approach, namely, the words of an Act are to be read 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 intentions of Parliament. [ 10 ] Layh J. also goes on to review, as Courts sometimes do, the Hansard proceedings with respect to this legislation and concludes it is clear that the legislators were concerned and wanted to enhance traffic safety.

There was also concern that distracted drivers cause accidents. [ 11 ] There are many potential driver actions that impact on traffic safety. The Saskatchewan legislature enacted provisions focusing on the use of electronic communication devices. However, it would be impossible to specifically itemize all the various types of uses a person can make of their cell phone that would come within the legislation. The legislation defines use in 241.1(1)(

d) and given the rules of statutory

interpretation, I must examine the circumstances here in that context. [ 12 ] As we know, some people use their electronic communication devices for the time of day or as GPS devices and even with verbal commands, may glance at the device, address or map on the screen while driving. Is that use caught by this section? I don’t think so, but I don’t need to answer that question here. [ 13 ] The only dispute in the evidence between the police officer and the offender is how long or how many times Mr. Haliwyz glanced down at his phone.

The police officer says he observed three times, lasting approximately 30 to 45 seconds in total. Mr. Haliwyz admits, and I accept, that he glanced down once when he heard his phone vibrate to see the author of the text received. He advised if it was from his daughter, he was going to turn and pick her up at school. The other times Mr. Haliwyz says he was adjusting the temperature control. He had three of his grandchildren in the back of the van, there was no one in the passenger seat. I accept Mr. Haliwyz’s evidence. [ 14 ]

Section 241.1(1)(

d) as it applies here requires that a person must be using the electronic communication device to text. To me that connotes doing some action in relation to the phone. Mr. Haliwyz looked at the screen, saw who it was and nothing more. He did not touch any of the controls, press any of the buttons or do anything active. In my view the definition of use in the legislation is not so encompassing so as to prohibit looking at your electronic communication device. Therefore in these particular circumstances, I find Mr. Haliwyz not guilty. M. Gordon, J