Ascendion Law Preserves Acquittal on Distracted Driving Appeal

Litigation

Are you “using” a cellphone if it is disabled from use and you are simply moving it? According to the Court of Appeal, the answer is “yes” under BC’s Distracted Driving laws.

Patrick Tannhauser was pulled over by police after they saw him holding his phone while driving. Mr. Tannhauser had an application installed on the phone that prevented its use while driving. Mr. Tannhauser explained that he was simply moving the phone. He was issued a ticket nonetheless for using a cell phone while driving, a prohibition that includes “holding the electronic device in a position in which it may be used”.

A judicial justice of the Provincial Court acquitted Mr. Tannhauser, finding that the particular phone could not be used given the installation of the app. The Crown appealed, and a Justice of the Supreme Court upheld the acquittal, but on the basis that a disabled cellphone is not an electronic device at all.

The Crown appealed to the BC Court of Appeal, arguing that the lower court interpretations would make enforcement impossible. The Crown argued that police have to determine if the law is broken based on roadside observations and cannot assess whether or not a particular device has been disabled when it is being held. Accordingly, even disabled phones should be caught.

Ascendion Law’s Graeme Hooper acted for Mr. Tannhauser before the Court of Appeal and argued that if the provisions were interpreted as the Crown urged, they would capture activities that are not in fact, distracting. There was no evidence to suggest that Mr. Tannhauser had engaged in conduct that was in any way distracting, nor that he had actually used his phone.

Chief Justice Bauman, writing for the Court, agreed that the provisions could be seen as overly cautious, as they captured activities that were not distracting, but held that was how the Legislature had drafted them. Further, the Court held that Mr. Tannhauser’s cellphone still left some functionality, such as displaying the time, meaning that holding it in one’s hand was “a position in which it may be used”. The Court allowed the appeal.

While the Crown had originally sought a conviction if successful on the appeal, the Crown and Mr. Hooper instead agreed that the Court should order a retrial rather than a conviction. The Court accepted this suggestion and ordered a retrial, adding that such a retrial would take place “if the Crown is of a mind to proceed at this time”. The Crown subsequently declined to retry Mr. Tannhauser. This meant that even though unsuccessful on the appeal, Mr. Tannhauser kept his acquittal.

While Mr. Tannhauser ultimately succeeded where it counts, the case should serve as a reminder to drivers that BC’s prohibition on “using” a cellphone while driving captures a lot more than actual use.