R. v. Tannhauser, 2019 BCSC 330

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Tannhauser, 2019 BCSC 330 Date: 20190219 Docket: AH99887732-1 Registry: Victoria Regina v. Patrick F. Tannhauser Before: The Honourable Mr. Justice Johnston On Appeal from a Judicial Justice of the Peace decision of July 16, 2018 Oral Reasons for Judgment (In Chambers) Counsel for the Crown: N. Grabe, Articled Student No One Appearing for the Respondent: Place and Date of Hearing: Victoria, B.C. February 19, 2019 Place and Date of Judgment: Victoria, B.C.

February 19, 2019 [ 1 ] THE COURT: This is a Crown appeal from a finding by a judicial justice of the peace that a violation did not occur. [ 2 ] The respondent on the appeal, Mr. Tannhauser, was issued a traffic violation ticket for what is commonly described as distracted driving. He was observed on the day in question, August 17, 2017, to be operating his motor vehicle, and at the time had in his hand what appeared to the observing police officer to be a cellular telephone.

The officer was not in a position to see whether the screen on the phone was illuminated, but there is no question it seems, on the evidence, that Mr. Tannhauser did have a cellular telephone in his hand when he was observed by the officer. Indeed Mr. Tannhauser testified at the hearing and agreed that he had the cell phone in his hand at about the time the officer saw him. [ 3 ] That can be an offence under s. 214.2 of the Motor Vehicle Act , which provides: … a person must not use an electronic device while driving or operating a motor vehicle on a highway".

Section 214.1 defines an electronic device to include under: (

a) a hand-held cellular telephone or another handheld electronic device that includes a telephone function; “Use" for the purpose of the

section is defined in s. 214.1 as: … 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; [ 4 ] On the hearing, Mr. Tannhauser testified that he was briefly holding his cellular telephone in his hand, but that, at the time, the cellular telephone was disabled from any communication functions by the software that his employer had installed on the cellular telephone.

This evidence was accepted by the judicial justice in his finding that, at all material times while this cellular telephone was indeed a cellular telephone, the software prevented it from receiving or making any of the calls or communications that cellular telephones are otherwise capable of doing. [ 5 ] The finding of fact, because that is what it is, is not challenged on this appeal, and indeed I could otherwise have found no palpable or overriding error in the judicial justice's accepting that at all material times the cell phone in question was prevented from operating as such by the software. [ 6 ] So those findings of the judicial justice at paragraph 13 of his reasons that the cell phone was immobilized, was I think was the phrase or word he used, or otherwise that the software prevented it from being used, is not challenged on this appeal.

Crown says instead that that is irrelevant to the offence charged and the violation charged, and ought to have been irrelevant to the judicial justice in reaching

the conclusion he reached. [ 7 ] At paragraph 16 of his reasons, the judicial justice identified the issue before him as not being whether Mr. Tannhauser was holding the device, but whether it was being held in a position in which it may be used. He then deals with the evidence with respect to the disabling software. [ 8 ] The judicial justice then considers the wording of the legislation and concludes that the

section in question, 214.2, is aimed at the potentially distracting effects of the electronic device. [ 9 ] The justice then considered that the legislation did not preclude a defence based upon proof that a driver could not have been distracted by the device's functions, and he did so before concluding that, because this device he accepted was disabled by the software, it therefore could not distract, and handling it or mere handling it, in effect, was not an offence under this section. [ 10 ] Along the way, the judicial justice considered some information that he found on his own on the internet, primarily on the website of the Insurance Corporation of British Columbia.

Crown's grounds of appeal include that this was improper, that is that it was not evidence the justice had presented to him during the hearing and therefore was not evidence available to him in his reasoning. [ 11 ] The justice seems to have been alert to the problems, and I say that because at the very end of his decision, the justice says this: [54] As a postscript, and for full disclosure, after I heard argument, I adjourned for a short period of time to consider my decision. When I returned to the courtroom, Corporal Seutter advised me that during that break he and Mr.

Tannhauser had taken a drive in his patrol car. He also advised me that when the software was enabled, it did appear to block all communication functions, but the user could activate four other non-communication functions on the phone, including the GPS function.

(55) As I heard this information after the case was closed, I concluded it was not evidence I should properly consider in deciding this case. [ 12 ] I note that according to the face page of the decision, the hearing occurred on the 23rd of May and the judgment was rendered on the 16th of July. I infer from that that the justice's recourse to the internet and his study of the ICBC material occurred during the time that he had the matter under reserve. [ 13 ] Crown says that s. 15, I think it is, of the Offence Act , which is a very broad

section entitling a justice to admit as evidence, whether or not it would be admissible under the laws of evidence, any oral or written testimony or any record or thing the justice considered relevant to an issue in the trial, and credible and trustworthy, that it was still offside for this justice to go off on a search on his own for evidence in the absence of the party and outside the parameters of the hearing. [ 14 ] No question that judges of the Supreme Court, in instructing juries, very strongly warn juries to stay off the internet, to stay away from Facebook, or to stay away from all other possible sources of information that might contaminate a trial process.

Section 15 of the Offence Act seems to permit, at least arguably, some of that activity as engaged in by the justice in this case. [ 15 ] It seems to me that the justice's recourse to the ICBC material on the internet did not seriously impact his decision, although he does say that it provided him with some comfort with respect to at least the intent behind the legislation in question. [ 16 ] On balance, I conclude that the recourse outside of the hearing, and in the absence of the parties, to a source of evidence was not permissible, and was an error, but that in this case that error was not material to the outcome of the trial. [ 17 ] As I read s. 214, and in light of the finding of fact or the acceptance by the judicial justice of the evidence of Mr.

Tannhauser that his telephone at the time, or his cellular device or electronic device at the time, was disabled by software, I conclude that in those circumstances, a device which is disabled from functioning is not an electronic device under s. 214.1(a). [ 18 ] In saying that, I am not particularly concerned that I am putting too much additional burden on investigating officers or on prosecutors.

It seems to me that the prima facie situation is someone observed operating a vehicle with an apparent electronic device in his hand, and who is issued a violation ticket on those circumstances, is going to have to be able to prove to a justice that that instrument or device was not operable at the time the ticket was issued, and that allays any concern that, by making the finding that I have made, that I am in some way making enforcement of this section, which is an otherwise very salutary portion of the Motor Vehicle Act , more difficult to enforce. [ 19 ] And so while a driver may well be distracted by what is an inert object rendered inert by software, that is not what the

section is aimed at, in my view, and in this case, the finding of the Justice of the Peace really amounts to a conclusion that, at the time the ticket was issued, this cellular telephone, because of the operation of its disabling software, was really no different than the brick counsel for the Crown mentioned in argument, or a cup of coffee, or any other object in the car. [ 20 ] That finding, in my view, is not inconsistent with the finding in Jahani , a decision in this court, 2017 BCSC 745 .

That case involved whether or not the act of plugging in a cell phone was a use of the cell phone, and the conclusion was, yes it was. [ 21 ] In this case, I have not adverted to Mr.

Tannhauser's evidence, but his evidence which was accepted was that the cell phone in question was sitting on his passenger seat and underneath it were some papers that he wanted to look at, and so he picked up the cell phone with his right hand, transferred it to his left hand, and put it on his dashboard, and it was while it was in transit from the passenger seat to the dashboard that he must have been observed with the phone in his hand. [ 22 ] It has not escaped me that Mr.

Tannhauser's evidence really amounted to he was getting one non-distracting electronic object out of the way so he could distract himself with papers while he was driving, but that is not something, apparently, that is covered by the

Motor Vehicle Act . [ 23 ] So my conclusion is that the main ground for the finding of the judicial justice that the infraction did not occur was not an error, either in fact or in law, and that the acquittal, as the judicial justice phrased it, is not something with which this court should interfere. [ 24 ] That mercifully allows me to avoid the very able argument addressed by counsel for the Crown on the alternate route to acquittal adopted by the judicial justice, and that is a defence of due diligence, and I need not address either the defence of due diligence or the particularly knotty problem of whether or not the offence set out in the Motor Vehicle Act under s. 214.2 is a strict liability offence or an absolute liability offence. [ 25 ] For the reasons given, the appeal is dismissed. [ 26 ] Congratulations, counsel, you did a terrific job. “The Honourable Mr.

Justice Johnston”