R. v. Bainbridge Date:, 2018 BCPC 101

Citation: R. v. Bainbridge Date: 20180312 2018 BCPC 101 File No: AH88153897 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. SAMUEL AUSTIN BAINBRIDGE REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. BURGESS Appearing for the Crown: Constable Neid Counsel for the Defendant: C. Armour Place of Hearing: Kelowna , B.C. Date of Hearing: January 12, 2018 Date of Judgment: March 12, 2018 [ 1 ] Mr. Bainbridge is before the court on a single count Violation Ticket AH88153897 which is an allegation of “Use Electronic Device While Driving” contrary to

section 214.2(1) of the Motor Vehicle Act.

[ 2 ] There were two witnesses on behalf of the Crown, Constable Carson and Constable Neid. Mr. Bainbridge testified on his own behalf. [ 3 ] Based on the evidence of the witnesses, there is no serious dispute with respect to the facts. On September 6, 2016 at 14:57, Mr. Bainbridge was operating a vehicle eastbound on Enterprise Way in Kelowna, British Columbia. Enterprise Way is one lane eastbound and one lane westbound with a common center left turn lane. [ 4 ] Constables Neid and Carson were involved in a multi officer RCMP call operation.

Constable Neid was located in a raised alcove at the rear of the Sandman Hotel. Given the time of day, traffic was slower than the 50 km/h speed limit. Constable Neid was 7 meters from the right side of eastbound vehicles. Constable Neid was the observer or caller. Constable Carson, located to the east of Constable Neid in the parking lot of the Ramada Hotel , was part of the pick-up crew. [ 5 ] Constable Neid observed an eastbound white Ford Explorer with a male driver. The driver had a smart phone in his right hand.

The phone was held by the driver with his thumb on one side and his fingers on the other side of the phone. Constable Neid was able to see the manufacturer’s logo on the back of the phone while the vehicle slowly passed his location. Constable Neid radioed ahead to Constable Carson, directing him to stop the white Ford Explorer. [ 6 ] Constable Carson stepped out into the roadway and observed the subject vehicle approaching. Traffic was moving so slowly that he had to wait for the vehicle to get to his location. Mr.

Bainbridge was the operator of the subject vehicle. [ 7 ] Constable Carson testified that at the traffic stop that Mr. Bainbridge said, “I wasn’t communicating with anyone. Force of habit to have phone in my hands.” [ 8 ] The officers, particularly Constable Neid, were cross examined and, among other things, gave the following evidence: 1. Mr. Bainbridge did not have the phone up to his ear; 2. the officers did not observe Mr. Bainbridge’s lips moving; 3. the officers did not see light from the screen of Mr. Bainbridge’s phone; and 4. the officers did not see Mr. Bainbridge manipulating the phone. [ 9 ] Mr.

Bainbridge in his evidence admitted to having not only a cell phone in his right hand but also a wallet as he drove his vehicle that day on Enterprise Way. His right hand holding his wallet and phone was at the steering wheel. Mr. Bainbridge indicated that he had said to Constable Carson it being a force of habit to hold the phone. He was not operating any of the phone’s functions such as a phone call, texting, GPS, charging the phone or listening to music through the phone. [ 10 ] In submissions the Disputant presented R. v. Jahani , [2017] B.C.J.

No. 861 and argued that in addition to holding the phone, the Crown must prove an accompanying use. [ 11 ] The Motor Vehicle Act

section 214.2(1) states: A person must not use an electronic device while driving or operating a motor vehicle on a highway. [ 12 ]

Section 214.1 provides some

definitions, including a definition of an electronic device. In this case there is no issue that the device that Mr. Bainbridge was hold was an electronic device as defined in

section 214.1 of the Motor Vehicle Act. [ 13 ]

Section 214.1 defines use 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. [ 14 ] The Regulation, Use of Electronic Devices While Driving Regulation, B.C. Reg. 308/2009 provides a further definition of use in

section 2 which states: 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. [ 15 ] In this case there is no issue that Mr. Bainbridge was holding an electronic device while he was driving a vehicle. [ 16 ] The Disputant submits that in addition to proving that the Disputant was holding an electronic device, the Crown has to also prove that the Disputant was operating one of the devices functions. [ 17 ] I disagree with this argument. [ 18 ] In R. v. Jahani, the court was dealing with an appeal from a decision of a Judicial Justice who had found that the Disputant, while holding a phone with the screen down and plugging the phone into a charging jack had been using the phone as defined in

section

214.1. After dealing with some other appeal issues, the court turned to the determination of “use.” [ 19 ] At paragraph 34, the court states: [34] The sole issue of merit in this case is whether the actions of Mr. Jahani, when stopped at the intersection at the red light and looking down to put his phone into a charging cable, were captured by the definition of “use” found in the legislation. [ 20 ] Further at paragraph 44, the court states: [44] The Crown is not required to prove whether the cell phone or device was capable of receiving and transmitting.

It is the handling of the device and the use, not whether the device was capable of transmitting or receiving, that is the issue before the court. [ 21 ] At paragraphs 46 and 47, the court states: [46] In the case at bar, the JJP, additionally addressed that risk: see the Reasons for Judgment, at paras. 16 and 17: [16] On the facts, it is quite clear that the phone was in the hands of the driver whilst driving. Albeit, he was stopped at the traffic lights, that is, construed to be in the process of driving or in the act of driving a vehicle on a highway.

Even the momentary holding of the cell phone or electronic device is prohibited. It is a distracting event. [17] The purpose of the legislation can be thwarted by one contending that one was in the process of charging the cellphone or electronic device and not using it. [47] The question before the court is whether charging the phone is using one of its functions, in accordance with the purpose of the legislation. [Emphasis added] [ 22 ] At paragraph 56 the court states: [56] Here, “use” is straightforward and defined with use including using a “function” of the phone.

I find charging the phone to be the use of one of the phone’s functions… [ 23 ] Finally at paragraph 57: [57] Mr. Jahani argued that the JJP erred in relying upon the Kazemi decision, because the Ontario legislation is completely different from B.C. in that any holding of the cell phone while driving is prohibited, whereas the MVA specifically provides that there must be holding and further an accompanying act. I agree with Mr. Jahani’s submission on this point. [ 24 ] The court concluded that charging the phone was use of one of its functions.

At paragraph 61 the court states, “This was not the mere handling of the phone and was rather of the use of a function.” [ 25 ] The court’s conclusion that the charging of the phone was one of the phone’s functions lead the court to conclude that the Judicial Justice had not made an error in law in the circumstances. [ 26 ]

Section 214.1 is very clear in its language in “use” paragraph (

a) which provides that “use” is holding the device in a position in which it may be used. Holding the phone in a position in which it may be used, is use. The court in R. v. Jahani found that holding the phone while plugging in the charger was holding it in a position in which it may be used. The fact that Mr. Jahani was plugging in the charger was utilizing one of the phone’s functions. By utilizing one of the phone’s functions, it was held by the court that Mr. Jahani was holding the phone in a position in which it may be used.

The court did not conclude that the Crown must prove both holding the phone and the operation of one of the phone’s functions. Such a conclusion would be contrary to the plain language of

section 214.1 (a). [ 27 ] The disputant conflates the language of paragraph (

a) with paragraphs (b), (c), and (

d) of

Section 214.1; the Crown need only prove “use” as defined in any of the “use” paragraphs of

section 214.1. [ 28 ] One of the cases considered by the court in R. v. Jahani was R. v. Judd , 2015 BCSC 1926 . In that case the court was considering an appeal of a conviction of the Disputant for holding a cellphone in hand while driving. At paragraph [8], the court considered one of the Appellant’s arguments and then states: [8] …It does not matter if Mr. Judd was not talking, because the

section allows for conviction if in fact he was simply using it by holding the device in a position in which it may be used, as the

section indicates. [ 29 ] Based on R. v. Judd , a person is using the phone simply by holding it in a position in which it may be used while driving or operating a vehicle. There does not need to be proof of any operation of the device’s functions as the disputant submits. [ 30 ] In this case Mr. Bainbridge was holding the phone in his right hand. He had his thumb on one side and his fingers on the other side. He was holding the phone in front of him. The Crown’s evidence was that the phone was being held by Mr. Bainbridge between his body and the steering wheel and Mr.

Bainbridge’s evidence was that he was holding it at the steering wheel. The court does not have to decide where the phone was actually located, either at the steering wheel or between the steering wheel and Mr. Bainbridge’s body. Mr. Bainbridge, by holding the phone in his right hand while driving was holding the phone in a position in which it may be used. [ 31 ] In particular, I find that any number of functions of Mr. Bainbridge’s phone could have been used in the position in which he held his phone, wherefore, based on the evidence before me Crown has proven its case beyond a reasonable doubt and I find Mr.

Bainbridge guilty of this offence.

[ 32 ] The fine will be the ticketed amount payable by April 30, 2018. ____________________ B. Burgess Judicial Justice