R. v. Chan Date:, 2015 BCPC 344

Citation: R. v. Chan Date: 20151125 2015 BCPC 0344 File No: AH74873730 Registry: Vancouver IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. IVAN GI FUNG CHAN ORAL REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE B. ADAIR Appearing for the Crown: Constable Marsh Appearing on their own behalf: R. Chan Place of Hearing: Vancouver , B.C. Dates of Hearing: November 23 & 25, 2015 Date of Judgment: November 25, 2015

[ 1 ] The Defendant, a Novice driver, is charged under Section 25(15) of the Motor Vehicle Act , relating to his cell phone. Section 25(15) is simply a broad form charging

section which provides: “

(15) A person who violates a requirement, restriction or condition prescribed under this

section in respect of the person's driver's license or who violates a restriction or condition stated in, endorsed on or attached to a driver's license issued to the person under this

section commits an offence.” (The charging

section for other drivers is 214.2 (2). ) [ 2 ] The Defendant is a Novice driver, Class 7. On October 04th, 2014 he was stopped at a general roadblock near Highway #1 in Burnaby, BC at about 4:50 am. In speaking with the Defendant, the officer observed the Defendant's cell phone plugged in for charging, and resting in the cupholder to the right of the Defendant. The Defendant was alone in his vehicle. There is no suggestion that the screen was lit, or that the Defendant was looking at the phone or using any one of the cell phone functions. [ 3 ] The Crown has closed its case.

I have not yet put to the Defendant his options of testifying or not. The preliminary question is whether the Crown has made out a prima facie case. [ 4 ] Motor Vehicle Act Regulation 30.072 specifies that a Class 7 driver must not: “

a) use an electronic device within the meaning of

Part 3.1 of the Act while driving or operating a motor vehicle on a highway...” [ 5 ] I observe that 30.072 (2)(

b) sets out an exception which allows the Novice driver to use an electronic device to make an emergency call while driving. The overwhelming inference of that exception is that a Novice driver can have a cell phone in the vehicle, and that the device can be within arm’s reach of the driver. [ 6 ]

Part 3.1 of the Act is the general prohibition for all drivers relating to the use of electronic devices while driving. Despite the broad definition of “use” in the Act (broadened yet further by Regulation) I am not satisfied, on the evidence that I have from the Crown, that the Defendant was “using” his device. To be more specific, I am not persuaded that simply charging a device is “using” the device. [ 7 ] I have also considered

Section 4 of the “Use of Electronic Devices While Driving Regulation”. That

section specifies that certain electronic devices must be installed: “

a) so that it is securely fixed to the motor vehicle.” [ 8 ] In my view, that

section does not assist the Crown. Only the devices listed in sub-section (2) must be securely fixed, namely:

a) GPS

b) electronic devices with a hands-free function

c) televisions [ 9 ]

Section 4 relates to

Section 7 (hands-free use of electronic devices) and

Section 8 (GPS) and simply sets out how those items must be installed if they are to qualify for the exemption from a charge. i.e. One can use a GPS or a hands-free device if it is installed as set out in

Section

Section 4, in my view, does not create a new offence of having an electronic device loose in the vehicle, whether in a cupholder, or laying on a passenger seat. [ 10 ] Accordingly, I find that the Crown has not made out a prima facie case against the Defendant. I find the Defendant not guilty.