R. v. Cheung, 2023 BCPC 203

Citation: R. v. Cheung 2023 BCPC 203 Date: 20230316 File No: EA00348224-1 Registry: Richmond IN THE PROVINCIAL COURT OF BRITISH COLUMBIA (TRAFFIC DIVISION) REX v. JULIA CHEUNG ORAL REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE C. MADDOCK Counsel for the Crown: No Appearance Appearing in person: J. Cheung Place of Hearing: Richmond , B.C.

Date of Hearing: February 15, 2023 Date of Judgment: March 16, 2023 [ 1 ] Julia Cheung is charged with using an electronic device while driving in Richmond, British Columbia, on August 28, 2022. [ 2 ] The sole issue in this case is whether an electronic wristwatch, capable of receiving text messages, is an "electronic device" within the meaning of the Motor Vehicle Act . Crown Evidence [ 3 ] On the alleged offence date, Cst.

Marsh was on duty conducting cell phone enforcement on foot, when she observed a driver, stopped at a red light, with her left arm up at mid-chest area, with her head down, looking at the screen of a watch, and "scrolling" with her right fingers. After pulling the vehicle over, Cst. Marsh had a conversation with the driver (Ms. Cheung), who stated that she was looking at a text message from her partner who had been involved in an accident on Mt. Seymour. During a voir dire, Ms. Cheung admitted that statement, and confirmed that it was voluntary. Defence Evidence [ 4 ] Ms.

Cheung confirmed that she was reading a text message from "Peter". She testified that she was not "scrolling" the device, but she did touch the screen twice as it took "two clicks to dismiss" the message. In answer to questions from the court, she confirmed that her watch was a 'fitness tracker", worn on her wrist, capable of "counting steps and heart rate", and was also able to recover text messages through Bluetooth via telephone (which I infer was somewhere in the vehicle). The device itself did not have a telephone function, and it was not possible to make a phone call using the device.

Relevant Motor Vehicle Act Sections [ 5 ]

Section 214.2 of the Motor Vehicle Act provides as follows: Prohibition against use of electronic device while driving

(1) A person must not use an electronic device while driving or operating a motor vehicle on a highway.

(2) Without limiting subsection (1), a person must not communicate by means of an electronic device with another person or another device by electronic mail or other text-based message.

Definitions [ 6 ]

Section 241.1 contains the

definitions of "electronic device". In this Part: "electronic device" means (emphasis added) (

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; [ 7 ] The "prescribed" class provisions are set out in the use of electronic devices while driving regulation, as follows: Use of Electronic Devices While Driving Regulation Prescribed electronic devices 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: (

a) electronic devices that include a hands-free telephone function; (

b) global positioning systems; (

c) hand-held electronic devices, one of the purposes of which is to process or compute data; (

d) hand-held audio players; (

e) hand microphones; (

f) televisions. Issue

[ 8 ] Is an electronic wristwatch, capable of receiving text messages, a "hand-held electronic device"? [ 9 ] I have been unable to find any reported decisions in British Columbia on the use of electronic wristwatches while driving, or the significance of the words "hand-held" in the above

definitions. [ 10 ] At the conclusion of the trial I invited both parties to provide the court with copies of any decisions on this subject. It would appear that there are no reported decisions in British Columbia. The only decision provided to me was by Cst. Marsh for the Crown, based upon the Highway Traffic Act of Ontario . That case is R. v. Ambrose , 2018 ONCJ 345 , a decision of a Justice of the Peace in Guelph, Ontario.

The relevant provision in Ontario is s. 78.1(1) which reads as follows: 78.1(1) No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device. [ 11 ] Without conducting a complete review of the Ontario case law, it would appear from that decision that in addition to any holding of the device in question, "the key to determining this matter is called distraction". In that regard, the Ontario cases appear to differ significantly from those in British Columbia, where the mere holding of a device is sufficient to support a conviction.

For those reasons, with the greatest respect to the court in Ontario, I find that decision of little assistance in the case before this court. [ 12 ] In the absence of relevant case law in British Columbia, I think the appropriate starting point is to consider the words in our legislation in their grammatical and ordinary meaning, harmoniously with the scheme of the Act, the subject of the Act, and the intention of Parliament. [ 13 ] Ms. Cheung's watch was not held in her hand. It was worn, and designed to be worn, on her wrist. The words "hand-held" appear repeatedly in the above

definitions. In my view, the word hand-held would normally mean that the device in question is either held in the hand or designed to be held in the hand. Had the legislature intended to include a wristwatch in the above

definitions, it would have been a simple matter to do so. [ 14 ] I add in passing that most wristwatches nowadays run on electricity. If a wristwatch is a "hand-held electronic device", then all drivers who "use" one simply to check the time while stopped in traffic, would be committing a serious offence. I do not believe that is what the legislature intended in enacting these provisions. The words "hand-held" must have been added for a reason.

In my view, the words "hand-held electronic device" would not normally be interpreted to include a wristwatch worn on the wrist. [ 15 ] I therefore find that the device in this case (a "fitness tracker") with the capacity to receive text-based messages is not a "hand- held" electronic device within the meaning of s. 214 of the Motor Vehicle Act , and related regulations. [ 16 ] Ms. Cheung is therefore not guilty. (ORAL REASONS FOR JUDGMENT CONCLUDED)