Crown looks to overturn immobilizer app ruling
A recently established defence for distracted driving is in danger of being overturned. The BC Court of Appeal has granted leave to appeal whether the holding of a smartphone disabled by an app constitutes “use” of an electronic device while driving.
You may remember last year when a driver was acquitted of a distracted driving ticket after proving he had software on his phone that prevented it from working while inside a moving vehicle. Patrick Tannhauser had been charged with using an electronic device while driving but he successfully argued he could not have been using the device, within the definition of the Motor Vehicle Act, because his employer had installed software that disabled the phone while inside a moving vehicle.
The case was good news for drivers because it set a precedent for a potential defence against distracted driving. ICBC has been supportive of the immobilizing technology in the past so it looked like the defence could be used more often in the future. Courts are usually very strict at enforcing distracted driving and what constitutes “use” of an electronic device. Section 214.2(1) of BC’s Motor Vehicle Act defines use as “holding the device in a position in which it may be used,” and “operating one or more of the device’s functions”. So even if you are not actually texting or using any other of the phone’s functions, but you hold the phone in a position in which you may be using it, you can still be convicted.
While Mr. Tannhauser’s case might have been good news for drivers, it was not so good for the Crown which appealed against two specific issues that arose out of the Provincial Court decision. Firstly, whether the holding of a disabled smartphone constitutes “use”. Secondly, whether a disabled smartphone constitutes an “electronic device” within the meaning of the Motor Vehicle Act.
According to police testimony, Mr. Tannhauser had been holding a smartphone at the top of the steering wheel in a slowly moving vehicle. Mr. Tannhauser testified that the phone had been sitting on some papers on the passenger seat that he wished to look at so he picked up the phone to put it on the dashboard.
After the original acquittal, the decision was upheld on appeal on the grounds that because the phone was disabled, it was not an “electronic device” within the meaning of s. 214.2(1). The Crown is disputing this interpretation.
The BC Court of Appeal judge stated: “I am satisfied that the issues are of importance. Many drivers in British Columbia carry their smartphones in their vehicles and are entitled to guidance as to what circumstances can give rise to an offence under s. 214.2(1). In addition, there are conflicting decisions in the Provincial Court.”
The judge has granted the Crown leave to appeal these two specific legal interpretations.
What could this mean?
The outcome of the Crown’s appeal could have far-reaching consequences for BC drivers. The original acquittal was seen as a common-sense interpretation of the law and a welcome break from the strict and broad definitions of using an electronic device while driving. If the Crown is successful, it would mean that immobilizer technology would be a non-starter in BC and a potential defence to drivers would be unavailable.