App helps B.C. driver get out of ticket

• A British Columbia man caught driving with his phone in his hand was acquitted after he successfully argued that he was just holding it.

While the excuse of “I was just holding it” hasn’t typically been successful in the courts, a B.C. judge found last month that Patrick Tannhauser couldn’t have been using his phone because an unspecified app locks it while it’s in motion. Therefore, he was not distracted, at least as B.C.’s laws are written.

But the ruling doesn’t give much hope to defendants: the defence may not work outside the province because it relied on the specific wording of B.C.’s distracted driving statute, and in recent weeks a separate provincial court ruling disputed the justice’s reasoning.

What the ruling does do, though, is highlight the limits of a very broad piece of legislation, said University of Calgary law professor Lisa Silver.

“When you draft legislation like this, you’re going to get arguments, that’s what’s going to happen,” she said. “For the Crown to take the position that ‘well he held it, that’s enough,’ I agree with the ( judicial justice), that’s not what this section’s about, that’s not what it’s after, right?”

A specific clause in the B.C. distracted driving legislation says the use of an electronic device is prohibited if the driver is “holding the device in a position in which it may be used.”

“The issue then is not whether Mr. Tannhauser was holding the device but whether it was in a position in which it may be used,” wrote Judicial Justice Hunter Gordon in his July provincial court ruling, which means, “simply holding an electronic device is not sufficient.”

Tannhauser’s case came about when police in the Victoria area were on the lookout for cellphone use and seatbelts on the morning of Aug. 17, 2017. A white pickup came into view of the police lookout, who said he saw a cellphone being held atop the steering wheel. Tannhauser was pulled over and charged with distracted driving.

In court, he argued he had picked up his phone to move some papers on the passenger seat and had no intention of using it, but even if he had, he couldn’t, because his employer had installed an unspecified app on the phone. (There are several apps available that ensure a user cannot use their phone while driving.)

“The Legislature has drawn the bright-line of holding a device where it is potentially distracting, whether in fact it is or is not distracting,” Gordon wrote. “But in my view, the legislature has not prevented the driver from mounting a defence based on proof that he or she could not have been distracted by the device’s functions.”

Yet this defence hasn’t been successful in other courts, including in two rulings in the past couple of years in B.C. — one where a driver was plugging in a phone and another where the driver tried to say he was simply holding it out of “force of habit.”

And weeks later, another B.C. court ruling, addressing the Tannhauser case, said Gordon’s interpretation that “simply holding an electronic device is not sufficient” for a distracted driving conviction “is simply wrong.”

So there’s no guarantee that this defence will work in the future.