Disabling software not a defence in distracted driving, court rules

B.C.’s highest court has determined that a person with a cellphone that has disabling software cannot use that as a defence against distracted driving.

The finding by the B.C. Court of Appeal was made in the case of a Crown appeal of a Vancouver Island man who was found not guilty of distracted driving despite the fact that he was seen by police holding a cellphone on top of his steering wheel.

In the ruling released Monday, a three-judge panel set aside the distracted-driving acquittal of Patrick Forster Tannhauser and ordered that a new trial be held.

On Aug. 27, 2017, Tannhauser was issued a ticket for using an electronic device while driving his slowly-moving white pickup near the Helmcken overpass in View Royal near Victoria.

Tannhauser testified that his employer had provided him with a cellphone with programmed software that disabled the phone when a vehicle that the phone is in is in motion.

He said that he was reaching for some papers on his passenger seat that he wanted to look at and the smart phone was on top of the paperwork. To get the phone out of the way, he picked it up with his right hand, transferred it to his left hand and put it on the dash, he said.

Tannhauser said the screen was not lit and he had no intention of doing anything with the phone other than putting it on the dash.

The issue at his trial in May 2018 was whether his cellphone was being held in a position in which it may be used. He argued that it couldn’t be used because of the disabling software.

A judicial justice accepted his argument and acquitted him.

The Crown appealed the acquittal but a B.C. Supreme Court judge dismissed that appeal, finding that the judicial justice was correct to conclude that the infraction had not happened.

But instead of focusing on the issue of the use of the phone, the judge concluded that a device that is disabled from functioning is not an electronic device under the legislation. The judge found that functionality was a required element of an electronic device.

The Crown appealed the case again, this time to the B.C. Court of Appeal.

The issues on the second appeal were whether a cellphone with no immediate functionality is an “electronic device” as defined under the law and whether a device with no immediate functionality can be held in a position in which it may be used.

In his reasons for judgment, B.C. Court of Appeal Chief Justice Robert Bauman said the answer to the two questions was in the affirmative.

“As I will explain, neither provision of the statute incorporates cellphone functionality as an element of the relevant definition,” he said in his written reasons. “Thus, the disabling software in question cannot form the basis for a successful defence.”

Bauman allowed the appeal and ordered a new trial, if the Crown wishes to proceed. Justice Lauri Ann Fenlon and Justice Gregory Fitch agreed with him.