R. v. Klause, 2019 BCPC 226

Citation: R. v. Klause 2019 BCPC 226 Date: 20190918 File No: AJ07986542-1 Registry: Kelowna IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. BRENTON KLAUSE ORAL REASONS FOR JUDGMENT OF JUDICIAL JUSTICE B. BURGESS Appearing for the Crown: Cst. T. Bevan Appearing on his own behalf: B. Klause Place of Hearing: Kelowna , B.C. Date of Hearing: September 18, 2019 Date of Judgment: September 18, 2019 [ 1 ] THE COURT: Mr. Klause is before the court on a single count violation ticket, AJ07986542. This is allegation of “use an electronic device while driving” contrary to the Motor Vehicle Act s. 214.2(1). Constable Bevan testified on behalf of the Crown. Mr.

Klause testified on his own behalf. [ 2 ] The constable’s evidence was that he has been with the RCMP since February of 2010. On April 19, 2018, he was on duty in uniform on a marked police motorcycle. He was in Kelowna, the Province of British Columbia. At 16:48, he was eastbound on Harvey in lane 3 which was the right lane. Traffic was heavy. There was a vehicle stopped next to him in lane number 2. They were near the intersection of Richter. He observed that the driver had a cellphone device in the right hand held above the centre console. He stopped the vehicle. Mr. Klause was the operator of the vehicle.

The officer told Mr. Klause why he had stopped him. The officer attributed to Mr. Klause that Mr. Klause said, “Was lost.” [ 3 ] In cross-examination, the officer indicated that he had a brief recollection of these events, that mainly his evidence was from his notes. The officer was asked if he would agree that Mr. Klause was not communicating via the device and he said he could not speak to the actions in relation to the device, but it was held in his hand. There are no notes of Mr. Klause texting and no notes of Mr. Klause’s lips moving. It was in Mr. Klause’s right hand above the centre console.

He did not have any notes or recollection of a cord or of the device being plugged in. He did not see the vehicle -- or it was not in his notes that he saw the vehicle ahead of Mr. Klause slam on his brakes. The vehicles were stopped in traffic. [ 4 ] Mr. Klause’s evidence was that he was travelling from Victoria to Saskatchewan. His vehicle was a 2003 van. He had come off the Coquihalla. I take it he does not have much experience with that highway. He was going to stay overnight in Kelowna. He had gone to the Value Village looking for antiques that was in West Kelowna.

He intended to go to the Value Village in Kelowna. [ 5 ] When he was in the parking lot of the Value Village in West Kelowna, he entered the Value Village Kelowna address into his phone. He said he was charging it. The phone was in the console slot. He had Google Earth telling him where to drive. The guy in front of him slammed on his brakes, his phone slid out. He lifted it up to put it back in the slot. That is when the officer saw him. He said he was not texting or communicating with the device. He said he touched the phone and put it back in its slot. It might have been 10 seconds. [ 6 ] Mr.

Klause in his submissions referred the court to

section 214.2(1), the charging

section and the definition

section of 214.1, of “use.” The Motor Vehicle Act s. 214.2(1) states: A person must not use an electronic device while driving or operating a motor vehicle on a highway. [ 7 ] Mr. Klause is not taking any issue that he was driving or operating a motor vehicle on a highway. Being stopped in traffic is still part of the act of driving and operating a motor vehicle. Mr. Klause does not take issue that he had an electronic device so I will not read the definition from the Motor Vehicle Act s. 214.1. I will read from that

section the definition of “use.” It says: “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. [ 8 ] The Regulation is British Columbia Regulation 308/2009.

Section 2 provides a further definition of “use.” It says: 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. [ 9 ] So Mr. Klause does not take issue that when he was seen by the officer he did have an electronic device in hand. [ 10 ] Mr. Klause said he did not find any British Columbia cases on point. There are quite a number of cases. The most recent case that I will refer is that of R. v. Anderson , 2019 BCPC 176 , a decision of Judicial Justice J. Chellappan. In that case, the judicial justice reviewed the legislation and the

definitions and in the case law and reviewed R. v. Judd, a decision of 2015 BCSC 1926 . The court quoted the R. v. Judd decision at paragraph 17 of Anderson , quoting R. v. Judd : “…..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.” [ 11 ] He then reviewed R. v. Jahani . That was an appeal of a case where the disputant had been observed by the officer holding a cellphone in hand and plugging in the charger. The appeal decision at 2017 BCSC 745 held that the court had correctly found that plugging in the phone was a “use” and upheld the conviction. The court then reviewed R. v. Partridge , 2019 BCSC 360 , where, as I understand the facts there, the phone was wedged between the folds of the passenger seat and the court held that there needed to be holding and an accompanying act. The judicial justice in R. v.

Anderson considered the seeming contrast between R. v. Judd and R. v. Partridge and relied upon R. v. Judd as being the earlier decision and found that a person with a device in hand was holding it in the position which it may be used and convicted. [ 12 ] Following the rationale in R. v. Anderson , that having it in hand is holding it in a position which it may be used, the Crown would have met its burden of proof under the definition of “use” (a). Further, Mr.

Klause’s evidence was that he was actually operating one of the device’s functions, that is, as I understand, he had it using it in Google Earth for directions, that it was telling him the directions that he should be taking. [ 13 ] There are some exceptions to the prohibition of using an electronic device and in the Regulations, B.C. Reg 308/2009, s. 3(1) :

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 … (

b) global positioning systems … Section 4(1) states: Subject to sections 7(1)(

a) and 8(3), an electronic device listed in subsection (2) must be installed (

a) so that it is securely fixed to the motor vehicle, and (

b) in a manner that does not obstruct the driver's view of the front or sides of the motor vehicle or interfere with the safety or operating equipment of the motor vehicle.

Section 8:

(1) Subject to subsection (3), a person may use a global positioning system for navigation purposes while driving or operating a motor vehicle on a highway, if the system is (

a) installed in accordance with

section 4 if subsection (3) of this

section does not apply, and (

b) operated in accordance with this section.

(2) A person may use a global positioning system while driving or operating a motor vehicle on a highway, if the system (

a) is programmed before the person begins to drive or operate the motor vehicle, or (

b) can be programmed in a voice-activated manner.

(3) If a global positioning system is a hand-held type, a person may use the system while driving or operating a motor vehicle on a highway if, in addition to the requirements of subsection (2), the system (

a) is not held in the person's hand, and (

b) is securely fixed to the motor vehicle 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. [ 14 ] So if the phone was being used for navigational purposes as a global positioning system, in order to use it, it cannot be in hand and must be secured to the motor vehicle. As I understand Mr. Klause’s evidence, it was not secured to the motor vehicle as when he had to abruptly apply his brakes, the device slid from where it was requiring Mr. Klause to pick it up.

So simply having it in hand even momentarily is holding it in a position which it may be used. Operating a device for navigational purposes, it must be securely fixed to the motor vehicle and was not. Based on the evidence before me, Crown has proven its case beyond a reasonable doubt and I find Mr. Klause guilty of this offence. [ 15 ] Does Crown take any position on penalty? [ 16 ] CONSTABLE BEVAN: No, Your Worship. [ 17 ] THE COURT: Mr.

Klause, any submissions on the fine amount? [ 18 ] THE ACCUSED: Well, obviously, I would like it cut in half, but that is probably not going to happen after I have run a trial, but my position, you know, I respect Your Honour’s decision. I will have to investigate.

It is an appeal to the Court of -- the Provincial Court by transcript or viva voce evidence? [ 19 ] THE COURT: It is an appeal to the Supreme Court -- [ 20 ] THE ACCUSED: Trial de novo ? [ 21 ] THE COURT: -- and it is by -- you have to have the transcript. [ 22 ] THE ACCUSED: Right. [ 23 ] THE COURT: It is not a trial de novo -- [ 24 ] THE ACCUSED: Okay, thank you. [ 25 ] THE COURT: -- if that answers your questions. [ 26 ] THE ACCUSED: It does, thank you. [ 27 ] THE COURT: Are you working, retired? [ 28 ] THE ACCUSED: I am working. [ 29 ] THE COURT: Full-time, part-time?

[ 30 ] THE ACCUSED: Full-time. [ 31 ] THE COURT: You came all the way from Saskatchewan to be here today? [ 32 ] THE ACCUSED: I did. [ 33 ] THE COURT: All right. It is a fine of $275 including a surcharge. End of October enough time to pay? [ 34 ] THE ACCUSED: Sorry, what was the amount, Your Honour? [ 35 ] THE COURT: $275. [ 36 ] THE ACCUSED: $275, thank you. Yes, that is time. October 31st and I should pay it. I understand you do not have a plan option program here and I would not be in a position to avail myself of anything else, so thank you. [ 37 ] THE COURT: All right, thank you. [ 38 ] THE ACCUSED: Thank you for your patience. (REASONS FOR JUDGMENT CONCLUDED)