R. v. Bleau, 2021 BCSC 13

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Bleau, 2021 BCSC 13 Date: 20210106 Docket: 42729 Registry: Campbell River Regina v. Ryan Michael Bleau Before: The Honourable Mr. Justice Voith On appeal from: A decision of the Provincial Court of British Columbia, dated February 25, 2020 ( R. v. Bleau , Campbell River Registry AJ13909067-1) Reasons for Judgment Counsel for Respondent: B. A. Goddard Appearing on his own behalf: Ryan Michael Bleau Place and Date of Trial/Hearing: Campbell River, B.C. September 8, 2020 Place and Date of Judgment: Campbell River, B.C. January 6, 2021 Overview [ 1 ] Mr.

Bleau appeals his conviction for using an electronic device while driving contrary to s. 214.2 of the Motor Vehicle Act , R.S.B.C. 1996 c. 318 (the “ Act ”). [ 2 ] The appellant was alone in his car and was driving to work. The appellant did not touch or otherwise interact with his phone at any point while driving. The phone was, however, playing a podcast through the speakers of the sound system of his truck, linked wirelessly by way of Bluetooth connection. [ 3 ] At all material times the phone was located in the cup holder of the centre console between the driver and passenger seats.

The phone was placed loosely in the cup holder, held in place by only the rubber grommet or seal of the cup holder. It was not securely fixed to the vehicle by any magnetic or physical implement, and the appellant accepted that nothing adhered the phone to the cup holder. [ 4 ] The Judicial Justice, in reasons dated February 25, 2020 (the “Reasons”), concluded that the appellant had used an electronic device to play a podcast through his car stereo without the phone being firmly affixed to the vehicle and that that conduct constituted a “technical” violation of s. 214.2 of the Act .

Further Relevant Facts [ 5 ] The appellant drove into the parking lot at his workplace when he was pulled over by a police officer. That officer, before the Judicial Justice, originally testified that he had observed the appellant’s right hand holding his phone to his ear as he was driving down the road. The appellant denied that this was the case. He filed evidence, in the form of a phone bill, that shows there is no chargeable entry pertaining to the time prior to when the officer issued a ticket.

The appellant also referred to a video dishcam recording, which was made an exhibit, which showed the route the appellant had driven and which revealed that he had not participated in a telephone conversation. [ 6 ] The Judicial Justice indicated that he had no reason to disbelieve either the officer or the appellant and that he was unable to resolve the inconsistency, as between their evidence, with any degree of certainty. [ 7 ] The appellant testified, and this evidence was not contested, that when he first started his vehicle the radio came on automatically.

Shortly thereafter, perhaps “30 seconds to a minute later”, his Bluetooth “automatically kicked in as it is set up to do” and he thereafter listened to a podcast until he arrived at his workplace.

The Relevant Statutory Structure [ 8 ]

Section 214.1 of the Act is a definition

section and it provides: In this Part: "electronic device" means (

a) a hand-held cellular telephone or another hand-held electronic device that includes a telephone function, (

b) a hand-held electronic device that is capable of transmitting or receiving electronic mail or other text-based messages, or (

c) a prescribed class or type of electronic device; "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. [ 9 ]

Section 214.2 provides:

(1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.

(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message. [Emphasis added.] [ 10 ] Various sections of the Use of Electronic Devices While Driving Regulation , B.C. Reg. 308/2009 (the “ Regulation ”), which I will return to, are also relevant. [ 11 ] What is important, and what arises from the intersection of these various provisions, is that a violation under s. 214.2 of the Act requires a defined form of “use” under s. 214.1 of the Act or under the Regulation . Without a prohibited form of “use”, a person cannot violate s. 214.2. Analysis

i) The Tannhauser Decision [ 12 ] R. v. Tannhauser , 2020 BCCA 155 is likely the leading authority on s. 214.1 and 241.2 of the Act and it is important in several respects. The case arose out of an appeal from the acquittal of an accused who was seen, while driving, with his cellphone on the steering wheel of his car but who had established that he could not “use” the cellphone because it contained software that disabled its functions. The case focused on s. 214.1 (

a) of the Act which defines “use” as “holding [an electronic device] in a position in which it may be used”. [ 13 ] The narrow conclusion of the Court was that the Act “prohibits the holding of a device in certain positions, not the holding of a device with certain functions”: para. 4. The Court said: “In 2009, the legislature was well aware that, for example, cellphones could be turned off.

The fact that it did not write in any concern for the functionality of the cellphone, but rather a concern for its position in relation to the driver, indicates it had no intention that the officers enforcing the provision (or the justices trying disputes) would be required to perform a functionality assessment”: para. 65. [ 14 ] The Court concluded there was no basis to apply a rule of strict construction to the provisions before it: paras. 26-31. It further addressed the legislative objects of

Part 3.1 of the Act , titled “Use of Electronic Devices while Driving” and said: “The provisions at issue were enacted in 2009 to enhance road safety in the face of the ‘devastating consequences’ of a lapse of attention caused by a cellphone or other device. The legislation was intended to ‘ensure that drivers keep their hands on the wheel and their eyes on the road’”: para. 34. [ 15 ] The Court, under the heading “Can a Cellphone with No Immediate Functionality Be Held in a Position in Which It May Be Used?” expressed a number of conclusions, some of which are directly relevant to the specific definition of “use” in subsection (

a) of s. 214.1 and some of which have broader application: [49] The MVA does not permit a driver to hold a device when its functions are disabled. The statute creates no exceptions for devices with suspended functions, and I find no basis to conclude such an exception exists in the broader statutory context. [50] In my view, holding an electronic device on top of a steering wheel, in clear view, is sufficient to constitute holding it in a position in which the device may be used. This view is supported by the ordinary meaning, context, and intention behind the statute.

[51] Beginning with the ordinary meaning, I cannot agree with Mr. Tannhauser’s submission that there was no way the cellphone could be “used” in the commonly understood sense of that word because of the disabling software. Looking at the screen of a cellphone constitutes that cellphone being “used” in many circumstances.

Thus, holding the cellphone where the screen can be viewed is sufficient to constitute holding it in a position in which it may be used. [52] Further, one can imagine circumstances in which a cellphone with no immediate functionality can nonetheless be used: a cellphone that is turned off can be turned on; a cellphone with a dead battery can be plugged in (see R. v.

Jahani , 2017 BCSC 745 , where a ticket was upheld for a person who did just that); a cellphone with software limiting its functionality can, potentially, be used to disable that software. [53] Importantly, the legislature’s intention to promote road safety supports this reading. All of the above actions have the potential to distract the driver. The purpose of public protection is served by understanding that this form of distracted behaviour is indeed prohibited. [54] The argument may be made that it is overly cautious to prohibit holding a phone that is turned off in a position in which it may be used.

Some distraction-free holding of a device may be captured by such a broad prohibition. But if the legislature intended a statute to be cautious, that intent must guide a court’s analysis. In other words, “[i]f it is concluded in all the relevant circumstances that the legislature intended a broad approach, that is the approach that will be adopted”: Merk v.

International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771 , 2005 SCC 70 at para. 33 . [55] Further, as the Crown states, prohibiting conduct that may fall short of actual distraction assists in effective detection, enforcement, and prevention of distraction. Detecting distracted driving poses a challenge for law enforcement. An officer must observe use of an electronic device from outside the vehicle, frequently from a distance.

If an officer needs to confirm not only that a device is being held but also that it is functional in the moment of being held, it is reasonable to conclude more distracted driving would occur without sanction. [56] Further, requiring the judicial justice trying a distracted driving case to delve into the functions of an electronic device in the moment the ticket was issued poses difficulties.

There is a risk of expert evidence being required to properly explain how certain software operates, or to interpret phone records showing how the software operated on the specific device; or, of the judiciary being asked to analyse the functionality of devices without this evidence. Either approach could lead to problems, and there are good public policy reasons to support a scheme that avoids the need for these inquiries. [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. [58] This

interpretation is also consistent with the scheme and context of the statute, which repeatedly makes clear its desire to limit contact between drivers’ hands and their cellphones. [Emphasis added.] ii) Understanding The Reasons and the Position of the Crown [ 16 ] The Judicial Justice, without expressly tracking the relevant provisions of the Act and Regulation, appears to have concluded that the appellant’s actions engaged 214.1(

d) and s. 10 of the Act and Regulation respectively and that he had thereby offended the prohibition in s. 214.2 of the Act . [ 17 ] The definition of “use” in s. 214.1(

d) provides: “taking another action that is set out in the regulations by means of, with or in relation to an electronic device”. [ 18 ]

Section 10 of the Regulation expressly deals with “hand-held audio player[s]” and provides: A person may use a hand-held audio player while driving or operating a motor vehicle on a highway if (

a) the device (

i) is not held in the person's hand, and (ii) is securely fixed to the motor vehicle or worn securely on the person's body in a manner that does not obstruct the person's view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle, and (

b) the sound is emitted through the speakers of the sound system of the motor vehicle. [ 19 ] The Reasons stated that the appellant could not “use Bluetooth for the phone to play music or to play podcasts, because you are then using an electronic device without it being firmly affixed in the vehicle”. [ 20 ] The Crown supports this

interpretation. It too argues that the playing of audio from a “hand-held audio player” is only permitted if it is “securely fixed to the motor vehicle or worn securely on the person’s body”.. Because the appellant’s phone lay unsecured within his coffee cup holder, while it was connected to his vehicle’s Bluetooth system and “emitted [sound] through the speakers of the sound system”, it offended s. 214.2 of the Act . [ 21 ] It is important to understand the breadth of the Crown’s submission.

It asserts that the appellant violated s. 214.2 of the Act whether the appellant ever touched his phone while in his vehicle or whether he had programmed it, to listen to his podcast, before he got into his vehicle. Still further, when pressed, the Crown accepted that the same result would ensue if the appellant had placed his phone in the vehicle’s centre console or in its glove compartment. It would still not be “securely fixed to the motor vehicle”. Indeed, the

Crown accepted that the same conclusion would ensue if the phone had been placed, for example, in the appellant’s brief case or in his gym bag. [ 22 ] I do not consider that the Reasons, or the position of the Crown, properly interpret the relevant provisions of the Act and the Regulation or that they give effect to the object of those provisions. [ 23 ] The appellant’s phone, through which he accessed his podcast, is an “electronic device” within the meaning of s. 214.1. Though this is clear, it is worth working through how the Act and the Regulation work in relation to this issue.

This is because the Act and Regulation establish a consistent and coherent structure that has relevance elsewhere. [ 24 ] To be specific, an “electronic device” is defined in s. 214.1 of the Act to include: “(

c) a prescribed class or type of electronic device”. [ 25 ]

Section 214.6 of the Act , under the heading “Power to make regulations”, provides: The Lieutenant Governor in Council may make regulations as follows: (

a) prescribing classes or types of electronic devices for the purposes of paragraph (

c) of the definition of "electronic device" in

section 214.1 ; … [Emphasis added.] [ 26 ] Section 3(1) of the Regulation , under the heading “Prescribed electronic devices”, then provides: The following electronic devices are prescribed for the purposes of paragraph (

c) of the definition of "electronic device" in

section 214.1 of the Act : (

a) electronic devices that include a hands-free telephone function; (

b) global positioning systems; (

c) hand-held electronic devices, one of the purposes of which is to process or compute data; (

d) hand-held audio players; (

e) hand microphones; (

f) televisions. [Emphasis added.] [ 27 ] Thus, there are three salient provisions. The first is the definition of “electronic device”, in the Act , that contemplates the inclusion of further prescribed classes or types of electronic device. The second is the specific authority, in the Act , for the Lieutenant Governor in Council to prescribe classes or types of electronic devices. The third, found within the Regulation , lists these prescribed… electronic devices. Each of these provisions is expressly tied to the other. [ 28 ] In this case it is the meaning of the word “use” that is in issue.

Specifically, the question is whether the appellant was “using” his “electronic device” when he listened to a podcast that was transmitted from his cellphone through the sound system in his vehicle. For ease of reference I have again included the definition of “use” that is found in s. 214.1 of the Act : "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.] [ 29 ] Three things are apparent from this definition. First, the definition of “use” is concerned with “actions”. Second, it is apparent that each of subsections (a)–(

c) contemplates some positive “action”. That is, each of “holding”, “operating”, and “communicating” is a positive action. Third, subsection (

d) does not specify any particular “action”. Instead, subsection (

d) speaks of “taking another action that is set out in the regulations…”. [ 30 ] There is no suggestion, or as a matter of

interpretation any prospect, that subsections (a), (

b) or (

c) are relevant in the present circumstances. The appellant did not “hold” his phone. He did not “communicate” through his phone. Though the Crown did not suggest the appellant “operated” his phone I propose to address that issue. [ 31 ] Neither the Act or the Regulation define “operating” as it pertains to electronic devices. However, the drafting decision to distinguish between the “use” and “operation” of electronic devices suggests that these terms are not interchangeable.

[ 32 ]

Section 214.1 of the Act defines “operating” a device’s functions as one of the four ways that the “use” of an electric device can occur. This suggests that “use” in relation to an electronic device describes broader conduct than “operating” a device’s functions. Put differently, “operating” an electronic device’s functions always constitutes its “use”. However, not all “use” of an electronic device involves “operating” its functions. [ 33 ] A failure to maintain this distinction, between use and operation, may result in confusion about the kinds of action that amount to “use” under the Act . R. v.

Jahani , 2017 BCSC 745 states at para. 56 that “‘use’ is straightforward and defined with use including using a ‘function’ of the phone.” However, the Act does not define “use” to include a situation in which a driver is using a device’s functions. This would amount to a circular definition. Rather, “use” under s. 214.1 (

b) of the Act is narrower and only encompasses actions which involve operating one or more of a device’s functions. [ 34 ]

Section 214.1 of the Act describes use “in relation to an electronic device” as meaning: “one or more of the following actions: … (

b) operating one or more of the device’s functions”. In a grammatical sense, it is worth noting that this phrase involves an action (“operating”) upon a direct object (“the device’s functions”). [ 35 ] This suggests that the verb “operating”, in s. 214.1 of the Act , is intended in its transitive sense, meaning it accepts one or more objects.

Put differently, it concerns the situation in which an action is taken while driving to “operate” the electronic device. “Operating” in this context, does not appear to be intended as an intransitive verb (for example, as it might be used to say “the electronic device is operating as expected”). [ 36 ] At this stage of the analysis, it is therefore helpful to contrast the transitive and intransitive ordinary dictionary

definitions of “operate” to assist in ascertaining the meaning of “operating” as it applies in s. 214.1 of the Act [ 37 ] This analysis suggests that it is the transitive sense of the word “operate” that applies in this case. The Concise Oxford English Dictionary , 8th ed., defines “operate”, in usage contexts potentially relevant here, as follows. In its transitive sense, “operate” may mean “manage, work, control; put or keep in a functional state […] bring about, accomplish.” In its intransitive sense, “operate” means “be in action; function […] produce an effect; exercise influence […] influence or affect.” [ 38 ] The transitive sense of “operating” as it is used in s. 214.1(

b) appears to necessarily imply some level of interaction between the driver and the electronic device. The action moves from the implied subject, the driver, through the verb (“operating”) to the direct object (“one or more of the device’s functions”). [ 39 ] This understanding of “operating” is supported by the transitive dictionary definition, which requires a subject to act upon a direct object by managing, working, controlling, putting or keeping it in a functional state, or by bringing about or accomplishing something.

This differs from the intransitive understanding of the term, where the subject receives the verb “operate.” This does not apply to the usage of “operating” in issue. [ 40 ] Thus, a reading of the term “operating”, in the context of the phrase at issue, and in its grammatical and ordinary sense appears to support a transitive understanding. This then requires some type of action on the part of the driver in relation to an electronic device.

This understanding of the term also appears to be harmonious with the scheme of the Act , the object of the Act , and the intention of the legislature. [ 41 ] Still further it is noteworthy that the relevant authorities have held that “the offence [of distracted driving] can be said to require an ‘accompanying act’ on the part of the driver”: R. v. Sangret , 2019 BCSC 2131 at para. 13 citing R. v. Partridge , 2019 BCSC 360 at para. 6 ; see also Jahani at para. 57 . [ 42 ] Let me return to subsection (

d) of the definition of “use” in s. 214.1 of the Act , which is the definition the Judicial Justice appears to have relied on. Subsection (

d) provides: “taking another action that is set out in the regulations….” The interrelationship between the Act and the Regulation, that I referred to earlier, is relevant. [ 43 ]

Section 214.6 of the Act provides: The Lieutenant Governor in Council may make regulations as follows: … (

b) setting out actions for the purposes of paragraph (

d) of the definition of "use" in

section 214.1; [Emphasis added.] [ 44 ]

Section 2 of the Regulation , under the heading “‘Use’ further defined”, provides: 2 A person who watches the screen of an electronic device uses the device for the purposes of paragraph (

d) of the definition of "use" in

section 214.1 of the Act . [Emphasis added.] [ 45 ] This is the only further defined “use” that is provided for in the Regulation . Between the Act and the Regulation a “use” must therefore involve “one or more of the following actions”… “holding”, “operating”, “communicating orally by means of”, or “watching the screen of” an electronic device. Listening passively to music or to a podcast, which is what the appellant in this case did, is not a form of “use”.

If he had touched or otherwise interacted with his phone, while driving, or operating his vehicle, to access his podcast he would then have “operated” the phone’s functions. If he had picked the phone up at any time he would have been “holding the device”. [ 46 ] The question then becomes what purpose

section 10 of the Regulation , which deals with “hand-held audio player[s]”, serves.

Once again the same structure and interrelationship between the Act and the Regulation is directly relevant. [ 47 ] First, s. 214.5(

b) of the Act , under the heading “Exceptions to prohibition — by regulation”, provides:

Section 214.2 does not apply to … (

b) a person who uses an electronic device while engaged in a prescribed activity or in circumstances or under conditions set out in the regulations, or [Emphasis added.] [ 48 ] Next, s. 214.6 (d), (

e) and (

f) of the Act provide: The Lieutenant Governor in Council may make regulations as follows: (

d) for the purposes of

section 214.5; (

e) regulating the installation or mounting of classes or types of electronic devices in motor vehicles; (

f) exempting or excluding , with or without conditions, classes or types of electronic devices, classes of persons or classes of vehicles or classes of persons while driving or operating a motor vehicle or class of motor vehicle from the operation of a provision of this Part. [Emphasis added.] [ 49 ] Subsection (

d) is somewhat confusing in that it is inconsistent, in structure, with the subsections that precede it.. Though I recognize that it is presumed the legislature drafts coherently, I nevertheless expect that subsections (d), (

e) and (

f) should properly have been drafted to provide: (

d) for the purposes of

section 214.5 (

i) regulating the installation or mounting of classes or types of electronic devices in motor vehicles; and (ii) exempting or excluding, with or without conditions, classes or types of electronic devices, classes of persons or classes of vehicles or classes of persons while driving or operating a motor vehicle or class of motor vehicle from the operation of a provision of this Part. [ 50 ] Whether or not this is so, what is important is that s. 214.5 of the Act expressly deals with circumstances where s. 214.2 of the Act “does not apply”. It is therefore an “exception” or “exemption” provision.

This is how the provision is described and it is what s. 214.6 of the Act in subsections (d)–(f), by its terms, expressly addresses. [ 51 ] This is consistent with an aspect of Tannhauser where the Court said: [59] After setting out

definitions and creating a broad prohibition on the use of devices while driving, the remainder of

Part 3.1 of the MVA is concerned with spelling out exceptions to the prohibition (excepting s. 214.6, which describes regulation-making powers). Emergency personnel are exempted from the prohibition by s. 214.3, and narrow exceptions also apply to ordinary drivers (i.e., those who are not emergency personnel). The exceptions demonstrate that only a “hands-free manner” of use is allowed: Exceptions to prohibition — certain permitted activities 214.4

Section 214.2 does not apply to a person who uses an electronic device (

a) while operating a motor vehicle that is safely parked off the roadway or lawfully parked on the roadway and is not impeding traffic, (

b) to call or send a message to a police force, fire department or ambulance service about an emergency, or (

c) that is configured and equipped to allow hands-free use in a telephone function, is used in a hands-free manner and is used in accordance with the regulations, if any. [Emphasis added.] [60] The Use Regulation describes in more detail which uses of electronic devices are and are not permitted by ordinary drivers.

Section 7 provides that the hands-free telephone functions of a device can be used in certain circumstances, including that the device be installed in the vehicle in a certain way.

Section 8 provides that a global positioning system on a device can be used while driving, again in certain circumstances. Use of hand microphones, hand-held audio players, and televisions are all permissible for limited purposes, or where certain precautions are taken: Use Regulation , ss. 9–11. [61] Notably, none of the exceptions in the statute or regulation allow a person to hold an electronic device in their hand while driving. Indeed, s. 214.4(

c) of the MVA and ss. 8(2)(b), 8(3)(a), and 10(a)(

i) of the Use Regulation all reiterate prohibitions on drivers’ hands making contact with their devices. [ 52 ]

Section 4 of the Regulation deals with “Installation of electronic devices”, the subject matter of s. 214.6 (

e) of the Act . Sections 5 and 6 of the Regulation deal with “classes of persons” to whom s. 214.2 of the Act does not apply. This is one of the matters addressed within s. 214.6 (

f) of the Act . Sections 7 –11 of the Regulation deal with different forms of electronic devices or functions. Specifically, they deal with the “use” of an electronic device in a hands-free telephone function, the “use” of global positioning systems, the “use” of

hand microphones, the “use” of hand-held audio players and televisions respectively. What constitutes a form of “use” is defined andlimited solely by s. 214.1 of the Act and s. 2 of the Regulation. In contrast, each of ss. 7–11 contains an exemption from the broaderprohibition on “use” in s. 214.2. For example, a person may “use” an electronic device in a hands-free telephone function while drivingif the device is “voice-activated or requires only one touch in order to initiate, accept or end a call”: s. 7(1)(

b) of the Regulation. It isapparent, in this example, that the form of “use” would consist of a driver “operating” their phone, albeit in a manner exempted from theprohibition on “use” set out in s. 214.2 of the Act. [53] Similarly, as the court in Tannhauser noted, a person may “use” a global positioning system if the system is “programmed beforethe person begins to drive or operate the motor vehicle, or… can be programmed in a voice-activated manner”: s. 8(2)(

a) and (

b) of theRegulation. [54] Importantly, ss. 7–11 of the Regulation do not give rise to further forms of “use”. Instead they provide exceptions or exemptionsfrom what would otherwise constitute “use”.

Specifically, s. 10 of the Regulation, which deals with hand-held audio players, does notexpand on the four forms of “use” that the Act and the Regulation provide for and that I described earlier. [55] This understanding is consistent with the views expressed in the relevant authorities which characterize various regulatoryprovisions as excepting certain uses from the prohibition on the use of electronic devices: Jahani at para. 43; Sangret at para. 15; R. v.Klause, 2019 BCPC 226 at para. 13; R. v.

Chan, 2015 BCPC 344 at paras. 7–9. [56] To be clear, in this case the appellant did not engage in a prohibited form of “use” under the Act or the Regulation. The fact thathis phone, through which a podcast was playing, was not secured in his vehicle or on his person is not a form of “use” or a prohibitedactivity under the Act or Regulation. [57] I consider that the foregoing conclusions are consistent with Tannhauser.

I have sought to interpret the various words in the Actor the Regulation, that I have addressed, “in their entire context and in their grammatical and ordinary sense harmoniously with thescheme of the Act, the object of the Act, and the intention of Parliament”: Tannhauser at para. 26 citing Rizzo & Rizzo Shoes Ltd. (Re), (SCC), [1998] 1 S.C.R. 27 at para. 21; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at para. 26, bothquoting Elmer A. Driedger, Construction of Statutes, 2nd ed. (Toronto: Butterworths, 1983) at 87. [58] I am mindful of the objects or purposes of the Act.

In Tannhauser the Court questioned whether it was “overly cautious toprohibit holding a phone that is turned off”: para. 54. The Court was satisfied, however, that the focus of s. 241.1(a) “holding the devicein a position in which it may be used” was on the act of holding that device. The Court was also satisfied that once a device is being heldin a position in which it could be used, a prohibited form of “use”, the “purpose of public protection is served by understanding that thisform of distracted behaviour is indeed prohibited”: para. 53. [59] Furthermore, the Court was satisfied that its

interpretation was consistent with the scheme and context of the statute “whichrepeatedly makes clear its desire to limit contact between drivers’ hands and their cellphones”: para. 58. While the full scheme andcontext of the Act and Regulation extend beyond “contact between drivers’ hands and their cellphones”, they necessarily require one offour defined forms of “use” or “action”. None of those prohibited forms of “use” is engaged by passively listening to an audio broadcastthat is initiated through a cellphone, before a driver enters their vehicle. [60] I would allow the appeal and set aside the appellant’s conviction. “Voith, J.”