R. v. Grzelak, 2019 BCPC 65

Citation: R. v. Grzelak 2019 BCPC 65 Date: 20190408 File No: AJ10992213 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (Traffic Court) REGINA v. PATRICK HENRY GRZELAK REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE B. ADAIR Representing the Crown: Cst. Parmer Appearing on his own behalf: P. H. Grzelak

Place of Hearing: Richmond , B.C. Date of Hearing: March 28, 2019 Date of Judgment: April 8, 2019 A Corrigendum was released by the Court on April 29, 2019. The corrections have been made to the text and the Corrigendum is appended to this document. [ 1 ] The Defendant, Patrick Henry Grzelak, is charged that: On October 12, 2018, in Surrey BC he did hold or use an electronic device while driving contrary to

Section 214.2 of the Motor Vehicle Act. [ 2 ] Both witnesses were credible and in my view the relevant facts are not in dispute. I do note that the Defendant was not cross examined by the Crown. [ 3 ] The Defendant was alone in his black Mercedes, coming from work after a long day. He was driving North bound on 152 Street in Surrey BC. [ 4 ] His Apple iPhone was in the centre cubby hole in the dashboard, at the front end of the console. The wire for his ear buds were plugged into the phone. He had the two ear buds in his ears, one on each side. The cell phone battery was dead.

The screen was not illuminated, no music, no conversation or anything else was coming through the earbuds. [ 5 ] The issue is whether the Defendant was “using” the cell phone as that term is defined in

Section 214.1 of the Motor Vehicle Act. 214.1 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. [ 6 ] On the facts, (b), (c), and (

d) of that definition do not apply. [ 7 ] Was the defendant “holding the device in a position in which it may be used”? If so a conviction must follow, even if the battery was dead, and even if the Defendant was not operating one of the functions of the device (such as the telephone or GPS function). [ 8 ] See , for example, R. v. Judd , 2015 BCSC 1926 at para. 8 : [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. [ 9 ] Obviously, here the cell phone itself was sitting in the centre cubby hole, and was not in the defendants hands, or in his lap. But that is not the end of the matter. In my view, by plugging the earbud wire into the iPhone, the defendant had enlarged the device, such that it included not only the iPhone (proper) but also attached speaker or earbuds.

In the same way, I would conclude that if the defendant had attached an exterior keyboard to the device for ease of inputting data, then the keyboard would then be part of the electronic device. [ 10 ] Since the earbuds were part of the electronic device and since the ear buds were in the defendants ears, it necessarily follows that the defendant was holding the device (or part of the device) in a position in which it could be used, i.e. his ears. [ 11 ] With respect to the issue of the dead battery I rely with approval on the unreported case of R. v.

Corrigan (AH79560051, March 18, 2015, Vancouver Registry, Provincial Court of British Columbia) in which Judicial Justice Burgess considered the Defendant’s argument that since the battery on his cell phone was dead and his phone therefore was not capable of any function that he could not be guilty of the charge. In rejecting that proposition, the Court specifically highlighted the wording of

Section 214.1 (

a) of the Motor Vehicle Act , namely that simply holding the device in a position in which it may be used constitutes the offence, even if it is temporarily inoperative. [ 12 ] I find the defendant guilty of the charge.

__________________________ Judicial Justice B. Adair Provincial Court of British Columbia CORRIGENDUM – RELEASED APRIL 29, 2019 [1] In my Reasons for Judgment dated April 8, 2019, the following changes on the cover page have been made: 1. The Style of Cause should read: (Traffic Court) REGINA v. PATRICK HENRY GRZELAK 2. REASONS FOR JUDGMENT OF THE JUDICIAL JUSTICE B. ADAIR 3. Representing the Crown: Cst. Parmer [2] Paragraph 11, the word “working” in the last sentence should be “wording”. The sentence should read: In rejecting that proposition, the Court specifically highlighted the wording of

section 214.1 (

a) of the Motor Vehicles Act …….. [3] My Reasons for Judgment dated April 8, 2019 are amended accordingly. Judicial Justice B. Adair Provincial Court of British Columbia