The Motor Vehicle Act states that “[a] person must not use an electronic device while driving or operating a motor vehicle on a highway.” This is commonly referred to as a prohibition on distracted driving. For simplicity’s sake there are two key aspects to this offence. Firstly, an electronic device and secondly, that device being used. Use includes holding the device in a position in which it may be used.
In Tannhauser there was no dispute that Mr. Tannhauser was driving with his cellphone in his hand. The cellphone, though, was equipped with software that disabled its functions while the vehicle was in motion, so use of it would have been impossible.
The Judicial Justice at trial acquitted Mr. Tannhauser on the basis that hewas not holding his cellphone in a useable position because the software prevented it from being used. So the court there focused on the use element of the offence.
The Summary Conviction Appeal judge upheld the acquittal but grounded it in the electronic device element of the offence. The court reasoned that a device which is disabled from functioning is not an electronic device.
For the Court of Appeal the case was really one of statutory interpretation. They explained:
A cellphone remains an “electronic device” within the meaning of the MVA regardless of its immediate functionality. Further, the MVA prohibits the holding of a device in certain positions, not the holding of a device with certain functions. The legislature has carefully carved out exceptions to the general prohibition on cellphone use, and has not created an exception for a cellphone without immediate functionality. Viewed in its entire context, there is no legitimate basis on which to conclude such an exception exists in the MVA.
In other words, “That electronic devices with suspended functionality remain electronic devices is consistent with an ordinary understanding of objects. The functions objects possess generally are distinct from the ways they are capable of functioning in a specific moment. A lamp unplugged is still a lamp; a cellphone turned off (or with the phone function otherwise disabled) is still a cellphone.”
On the issue of use the court found that “one can imagine circumstances in which a cellphone with no immediate functionality can nonetheless be used: a cellphone that is turned off can be turned on; a cellphone with a dead battery can be plugged in; a cellphone with software limiting its functionality can, potentially, be used to disable that software.
What this case makes clear is that no matter it’s functionality a cell phone should never be in a driver’s hand.