IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation: R. v. Sangret,
2019 BCSC 2131
Date: 20191209
Docket: 27826
Registry: Vancouver

Regina

v.

Hunter John Sangret

Before: The Honourable Madam Justice Watchuk

On appeal from: An order of the Provincial Court, dated February 28,

2019 (R. v. Sangret, Robson Court Registry Docket
No. AJ06704630-1).

Reasons for Judgment

Counsel for the Crown: Kristen H. Gagnon

Counsel for the Accused: Paige Gardiner

Place and Date of Hearing: Vancouver, B.C.

August 2, 2019
Place and Date of Judgment: Vancouver, B.C.
August 2, 2019
Place and Date of Written Reasons: December 9, 2019
Introduction

[1] On April 6, 2018, a police officer was conducting a distracted driving enforcement operation
in the City of Burnaby. Around 12:30 p.m. he observed the appellant driving alone with an
electronic device mounted to the dashboard of his vehicle. The officer stopped the appellant’s
vehicle and asked for his identification.

[2] At the time, the appellant held a Class 7 or novice driver’s license. One restriction on that
class of license is that the holder is prohibited from using an electronic device while driving: Motor
Vehicle Act Regulations, B.C. Reg. 26/58, s. 30.072(1).

[3] The officer issued a ticket for Driving Contrary to Restrictions pursuant to s. 25(15) of the
Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] on the basis the appellant was using an electronic
device while driving.

[4] At no point did the officer observe the appellant holding, touching, or otherwise making use
of the device. The screen remained dark throughout their interaction.

[5] The appellant disputed the ticket.

[6] At trial, the Judicial Justice found the appellant guilty of Driving Contrary to Restrictions, on
the grounds the appellant that driving with a device in plain sight constituted use of that device for
the purposes of the MVA.

[7] The appellant appealed his conviction to this court on the grounds that it was an
unreasonable verdict because there was no evidence that he had used the device in any way. At
the hearing, the Crown conceded the appeal, agreeing with the appellant that a verdict of acquittal
should be substituted for the conviction on the grounds that the conviction was not supported by the
evidence. Accordingly, I allowed the appeal and set aside the conviction.

[8] At the conclusion of the hearing, the parties requested that I prepare reasons to clarify the
meaning of “use” in this context. These then are those reasons.

Issue

[9] The issue raised in this appeal is whether the presence of an electronic device in plain sight
in a vehicle is sufficient to constitute “use” of an electronic device, as that term is defined under the
MVA and its associated Regulations.

Discussion

[10] The purpose of the distracted driving provisions of the MVA is straightforward: to ensure that
drivers are paying attention to the road and to reduce the risk of accidents as a result of distracted
driving: R. v. Jahani, 2017 BCSC 745 at para. 39. The MVA, in Part 3.1, Use of Electronic Devices
While Driving, accomplishes this objective by prohibiting the “use” of electronic devices while
driving, except in emergency circumstances. The term “use” is defined in s. 214.1 of the MVA as
constituting one of the following prohibited actions:

a) holding the device in a position in which it may be used;

b) operating one or more of the device’s functions;
c) communicating orally by means of the device with another person or another device;
d) taking another action that is set out in the regulations by means of, with or in relation to an
electronic device.

[11] In addition, the Use of Electronic Devices While Driving Regulation, B.C. Reg. 308/2009, s. 2
states that “[a] person who watches the screen of an electronic device uses the device” for the
purposes of the MVA.

[12] The definition of “use” encompasses a broad range of actions. A driver does not need to
physically touch the device to have used it in a prohibited manner. A driver can “use” a device by
watching the screen, speaking into it, or otherwise utilizing one of its functions in any way. On the
other hand, prohibited use includes the driver simply holding the device in a manner which enables
further use.

[13] In this way, the legislature has balanced the ubiquitous presence of electronic devices in
modern life against the dangers of distracted driving. As the Judicial Justice noted, all electronic
devices have a latent potential for distraction. A device in plain view is more likely to tempt a driver
to distraction than one that has been safely stowed away in a pocket or a glove compartment. To
commit an offence, however, the driver must do something to actualize or heighten this latent risk of
distraction. In this sense, the offence can be said to require an “accompanying act” on the part of
the driver: see R. v. Partridge, 2019 BCSC 360: para. 6. As defined in the MVA, that act may be as
simple as holding the device in a manner that enables further use. Merely driving within sight of a
device, however, is not enough to constitute use.

[14] On the facts of this case, there was no evidence that appellant performed any such
accompanying act. There was no evidence that he watched, operated, or communicated by means
of the device in any way. Nor was there evidence that he was “holding” the device as prohibited by
s. 214.1(a) of the MVA. In its plain meaning, holding means physically grasping, carrying, or
supporting something. In my view, s. 214.1(a) is to be interpreted as a prohibition against a device
being personally held by the driver. In this case, the device was installed in a position in which it
was visible to the appellant, but the appellant was not personally holding it.

[15] It is not an offence to install a device in a manner that facilitates its use. On the contrary, the
Use of Electronic Devices While Driving Regulation, B.C. Reg. 308/2009, s. 7, specifically permits
drivers (although not Class 7 drivers) to use electronic devices in “hands-free” mode, provided the
device is installed in the stipulated manner. In other words, the legislation contemplates a
distinction between using a device, which includes holding it in a manner in which it could be used,
and installing it for the purpose of hands-free use.

[16] Thus, “holding a device in a position in which it may be used” is a prohibited act, but installing
a device in a position in which it may be used is not. The prohibited act is “use” as defined, not
installation.

[17] In this case, as a novice driver with a Class 7 licence and attendant restrictions (the subject
of the Violation Ticket), the appellant did not have the benefit of, nor did he need to avail himself of,
the hands-free exception. Section 30.072(1) of the Regulations prohibits a Class 7 driver from
“us[ing] an electronic device within the meaning of Part 3.1 of the Act”. The nature of the restriction
at issue therefore also pertains to “use” as defined. Here, there was no evidence that the appellant
used the device in any way, notwithstanding that it was mounted on his dashboard.

[18] The mere presence of the device within sight of the appellant was not sufficient to constitute
“use” of the device. As a result, the appellant’s conviction was unsupported by the evidence.
Conclusion

[19] The appellant established, and the Crown conceded, that the conviction was not supported
by the evidence. This appeal was therefore allowed. The conviction was set aside and a verdict of
acquittal has been entered.

“The Honourable Madam Justice Watchuk”