Though legislation will outline an offence, the courts will end up clarifying the scope of the offence. Inevitably when a new offence is created various cases will allow the courts to comment on the elements of the offence and address factual scenarios which either support or fall short of proving the offence.

The distracted driving offence in the Motor Vehicle Act (“MVA”) is no different. The offence was enacted in 2010 and the scope of the offence continues to be addressed.

Section 214.2(1) of the MVA states a “person must not use an electronic device while driving or operating a motor vehicle on a highway”. Section 214.1 of the MVA defines “use” as one or more of the following actions:

  1. holding the device in a position in which it may be used;
  2. operating one or more of the device’s functions;
  3. communicating orally by means of the device with another person or another device;
  4. taking another action that is set out in the regulations by means of, with or in relation to an electronic device.

“Use” is further defined in the Electronic Devices Regulation at s. 2 as a “person who watches the screen of an electronic device uses the device.”

The starting point in terms of cases regarding distracted driving is R. v. Jahani. In that case the court found that holding a cell phone and plugging it into a charger while stopped at a light constituted “use” and was enough to support a conviction.

Most recently in R. v. Partridge the court concluded that simply having a phone in your vehicle in a visible location does not constitute “use”. The court left open the possibility that looking at the screen on the device even if you aren’t touching it could be enough for a conviction for distracted driving.

Given the court’s ruling it would be wise to follow the advice in the Vancouver Police Department’s tweet:

Based on yesterday’s ruling, it is legal to have a cell phone in the cup holder or cubby under your stereo, as long as you are not looking at it. We would recommend turning it off or facing it away from you to avoid temptation.

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