In honor of the fact that April is Distracted Driving Awareness Month, it seems like a good idea to bring another update on the seemingly endless attempts to avoid convictions.

The statistics continue to be eye-opening.

Think Insure Canada has reported that:

• An accident is 23 times more likely to occur if the driver is texting and driving;
• One in five drivers admit to googling or browsing while driving;
• It takes an average of five seconds after a distraction for an accident to occur;
• Use of smartphones are the most common form of distracted driving;
• Texting and driving is six times more likely to cause an accident than drinking and driving;
• It takes an average of 27 seconds after using a hands-free device to return to driving mode;
• Incoming text notifications cause increased dopamine level in our brains, causing a compulsion to check your phone.

Let’s review: In June 2020, the British Columbia Court of Appeal confirmed that holding a turned off or disabled cellphone while driving is an offence. “Use” means holding it in a way that it can be used. The driver in that case was holding the phone at the top of his steering wheel while driving and had been relocating it from the passenger seat to access papers. His cellphone had been disabled but it was still a cellphone. 

In July 2021, the same court confirmed that, under B.C.’s Motor Vehicle Act, “holding” an electronic device can be more than just holding it in your hands. In this case, the driver had the cellphone wedged between his right thigh and his car seat while he was charging it. The appeal court confirmed that ”holding” means physically grasping, carrying, or supporting something and that the offence of distracted driving relates to “holding a device in a position in which it may be used.”  “Holding” is not restricted just to the use of a person’s hands, and not just cellphones but a variety of devices including GPS units and televisions. The whole point of enforcement is to focus on distracted conduct to prevent death and injuries.

Now, in January 2022, in R. v. Bakhsheshi 2022 BCSC 152, the British Columbia Supreme Court faced an appeal from the provincial court’s conviction of a driver for using an electronic device while driving. He had been provided with a penalty of $368 plus deducted points. Once added to his previous points, the penalties forced the suspension of his licence for four months. In this case, the driver testified that he heard a knock at his driver side door. Reaching down, he discovered it was his phone, which he picked up with his left hand, transferred to his right hand, and placed it on the dash. At this moment of transfer, the tractor-trailer he was driving swerved into the next lane, according to the police officer in the cruiser in the adjacent lane who had to take evasive action. The police officer also witnessed the cellphone in the truck driver’s left hand.

The driver’s defence was that he was not “using” his cellphone. He argued that public brochures on distracted driving did not describe simple handling as “use”. Therefore, he was unaware that picking up his phone and holding or transferring it from one hand to another would be considered “use”. The driver also denied that his tractor-trailer moved out of his own lane.

The court confirmed that “use” does not  have to mean touching the device. Using can also mean watching a screen, speaking into a device, or utilizing a function. The court reasoned that a device in plain view may tempt a driver to distraction as opposed to when it is stowed in a pocket or glove compartment. Use though must also be accompanied by an “act” such as holding. The legislation focuses on limiting contact with any electronic device.  The “use” in this case was the act of picking up, holding, and transferring the device from one hand to the other, and placing on the dash.

The lesson for today is simply do not “use” your device while driving. Don’t touch your device, and put it in the back seat or in your bag, out of your reach, so you won’t be tempted. The courts are not going to side with you at the end of the day. Your points will be affected, your licence may be suspended, a fine will be payable, and your insurance rates will go up.

April is Distracted Driving Awareness Month but, really, we should all be aware every day.