A provincial court judge has ruled on whether simply having your cellphone in your lap while it's charging - qualifies as distracted driving. Paul Johnson reports.

The latest distracted driving ticket to get tossed out by a B.C. judge could lead to adjustments to the law itself, the province’s public safety minister says.

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The decision handed down in Victoria provincial court Tuesday concerned a Victoria woman who was fined for having her phone sitting on her lap while stopped at a red light in December 2018 in Esquimalt.

The police officer who issued the ticket noted the phone’s screen was not illuminated at the time and the woman was not touching the phone, which was connected to a charging cable.

The woman was pulled over when the officer noticed she was glancing down at her lap “a few times,” according to the written decision. The woman testified the phone had been next to her right thigh on the driver’s seat.

The officer had argued that charging a phone was a function of the phone, meaning it was in use, and that having the phone in the woman’s lap counted as “holding” the device.

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Under the Motor Vehicle Act, “use” of an electronic device while driving means “holding the device in a position in which it may be used” and “operating one or more of the device’s functions.”

But the judge ruled both “function” and “holding” are not defined words within the Act, and could only rely on their dictionary definitions — or, in the case of “holding,” look at synonyms included in the Act, such as “grasp.”

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“Resting a device on the lap simply as a resting place, as opposed to the ability to grasp it is not a meaning of hold in its grammatical and ordinary sense,” the judge noted.

As for the argument that charging the phone was a “function” of the device, the judge also refused to accept it.

“I find on the evidence that the phone was plugged in to the vehicle and being charged and no more,” the decision reads.

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“I find it difficult to accept that for any device (e.g. radio, TV) that relies on energy to operate, plugging it in to an energy source is, on its ordinary meaning, operating one of its functions.”

Law has created confusion for years

The acquittal is the latest in a string of rulings that have seen judges take issue with how the Act’s section on distracted driving, now 10 years old, is worded.

In December 2019, a judge tossed out the case of a new driver who was ticketed despite having his phone — which wasn’t being touched or used and had a dark screen when officers approached — mounted to the dash.

In March of that year, another driver won his appeal of a ticket for having his phone in plain sight after getting caught with the device wedged into the seat cushion of the passenger seat.

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Police have also had to walk back tickets themselves after public backlash. In October 2019, Vancouver police apologized and cancelled a ticket given to a Richmond senior who was slapped with a $368 distracted driving fine for having her cellphone in her cup holder.

Grant Gottgetreij, a former road safety officer who worked for RCMP and police departments in West Vancouver and New Westminster, says the law itself is poorly worded and is too open to interpretation from police and the courts.

“We would write tickets for people that had the electronic device in their hands,” he explained. “But then we started writing as well for if it was on their lap, or if it was under their leg.”

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Police continue to issue tickets on questionable grounds while admitted they’re caught in a grey area. The most recent example came on New Year’s Eve, when a Saanich driver was fined for switching a song on her mounted phone. The woman has vowed to fight the charge.

Public Safety Minister Mike Farnworth, who has said phones should always be mounted to the dash for drivers to avoid tickets, now says he is reviewing this latest ruling and how it could be applied to the way the law is written.

“We take [court rulings] seriously,” he said. “It’s looked at within my ministry or the Attorney General’s ministry in terms of, ‘OK, what does this really mean, and do we need to make changes to implement it?'”

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In the meantime, Kyla Lee, a defence lawyer who specializes in traffic cases, says the new ruling sets a precedent that can be cited in future cases.

“Anybody who’s received a ticket for having their phone in their lap should be looking at disputing that ticket,” she said.

“If you’ve been convicted, you ought to appeal.”

—With files from Paul Johnson and Jon Azpiri

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