Don’t even touch that cellphone, drivers

Judge upholds fine for motorist seen simply holding phone — not texting, talking or even charging it

Holding a cellphone is enough to be ticketed for distracted driving, a Kelowna man has learned.

On Sept 6, 2016, Samuel Bainbridge was driving east on Enterprise Way in Kelowna when a police officer spotted a cellphone in his right hand.

That officer called ahead to another officer, who pulled Bainbridge over.

Bainbridge told the officer he wasn’t communicating with anyone, but that it was just “force of habit” to have his phone in his hands.

He was fined $368, which he appealed in court earlier this year.

Both officers testified Bainbridge did not have the phone up to his ear, they did not see his lips moving, there was no light coming from the screen of the phone and they did not see him manipulating the phone.

Bainbridge was not talking on the phone, texting, using the phone’s GPS, charging the phone or listening to music through the phone.

The defence argued the Crown had to prove Bainbridge was operating one of the phone’s functions, an argument Judge Brian Burgess rejected.

The province’s Motor Vehicle Act states a person must not use an electronic device while driving or operating a motor vehicle on a highway. This includes holding the device in a position in which it may be used.

“A person is using the phone simply by holding it in a position in which it may be used while driving or operating a vehicle,” Burgess wrote in his recent decision. “Mr. Bainbridge, by holding the phone in his right hand while driving, was holding the phone in a position in which it may be used.”

Burgess referenced a previous case in which a judge ruled a man plugging his phone into the charger counted as him using the phone.

He found Bainbridge guilty of using his phone while driving and ordered him to pay the fine by April 30, 2018.