Distracted driving is now under more scrutiny than ever. A recent decision of the British Columbia Court of Appeal has confirmed that holding a cellphone while driving is an offence even when it is disabled or turned off.

In a case called R. v. Tannhauser (2020 BCCA 155), Patrick Tannhauser received a ticket because he was holding his cellphone at the top of his steering wheel while driving on the TransCanada Highway. He testified that he was not “using” the cellphone but rather relocating it from the passenger seat to access papers. The cellphone was also disabled by an app that engaged while he was driving.  At most, he was only holding a cellphone that wasn’t working.

At the first hearing, the judicial justice sided with Tannhauser. The Crown then appealed to the British Columbia Supreme Court, and that judge also agreed saying that a disabled phone was really no different than a brick or a cup of coffee or any other object in the vehicle. Because it could not be used, the judge stated that a disabled cellphone was not an electronic device under S. 214.1(a) of BC’s Motor Vehicle Act, which prohibits “holding the device in a position in which it may be used.”  An “electronic device” is defined as including a “handheld cell telephone or another handheld electronic device capable of transmitting or receiving electronic mail or other text-based messages.”

The Crown then applied to be allowed to appeal to the BC Court of Appeal. This rare request for a further review was granted because it was important that drivers know  whether a disabled phone (or one turned off) was considered an “electronic device”; and whether they were committing an offence by “using” their cellphone merely by holding it while driving.

The court decided that a disabled cell phone is only temporarily disabled (whether by an app or because it is turned off) and that such cellphones are still “electronic devices”. A turned off lamp is still a lamp. Only if it no longer had any capacity to make calls or send electronic data would a disabled cellphone no longer be an electronic device. This being the case, holding such an electronic device while driving, was an offence.  The Appeal Court reasoned that if the BC legislature had wanted to create an exception for non-functioning devices, the law would have specifically said so, since other exceptions are contained with the Motor Vehicle Act.

It is clear that distracted driving is a very serious offence and that permitted use of cellphones while driving is very restricted and that the law will be interpreted strictly.

What does this mean for Ontario? The Highway Traffic Act has a similar wording that does not have an exception for non-functioning devices. The Act says in s 78.1 that “No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device… that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages.” While it may be clear that “holding” the phone is an offence in Ontario, it is also clear that a non-functioning phone will also be enough to constitute an offence.

Multi-tasking is a real no-no and getting caught is expensive. Remember that for classes A-G and M licences, there is:

• a fine of $615 for a first-time offence (increases to $1000, if you fight the ticket and lose) plus three demerit points and three-day licence suspension.
• a fine of $615 for the second offence (increases to $2,000 if you fight the ticket and lose) plus six demerit points and licence suspension for seven days.
• a fine of $615 for a third offence (increases to $3,000 if you fight the ticket and lose) plus six demerit points and suspension for 30 days.

Novice drivers face longer suspensions though no demerit points: 30 days on first conviction; 90 days on second conviction; and cancellation and removal from the Graduated Licensing System for the third conviction.

If you endanger other people because of distracted driving of any kind — including hands-free devices — you could be charged with careless driving and, if convicted, penalties include six demerit points, fines up to $2,000 and/or a jail term of six months/licence suspension up to two years. If charged with the criminal offence of dangerous driving, penalties include a jail term up to 10 years for causing bodily harm or up to 14 years for causing death.

A further reminder for truckers and others driving commercial vehicles, the Commercial Vehicle Operators Registration (CVOR) holder can also be charged for offences committed by drivers operating those vehicles exposing them to points accumulation. Points are assigned depending upon the charge and conviction under various legislation. Moving violations generally have five-point penalties. Too many CVOR points may trigger audits and possibly more charges under various headings putting the CVOR certificate at risk.