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Yes, Virginia, A Smart Phone is a “Hand-held Electronic Device”

January 24, 2019

Driver acquittal for provincial distracted driving offence overturned on appeal

In R. v. Ahmed Justice John Henderson of the Alberta Court of Queen’s Bench sat as a court of appeal over a decision of the Traffic Commissioner, who had acquitted the accused of a distracted driving offence under the Alberta Traffic Safety Act. The accused had been observed steering his moving vehicle with his left hand while holding a smart phone in his right, and intermittently looking at it. The police charged him under s. 115.1(1)(b) of the Act, which prohibits a motorist from driving while at the same time holding, viewing, or manipulating “a hand-held electronic device or a wireless electronic device.” However, the Traffic Commissioner held that this conduct would have amounted to an offence if the accused had been charged under s. 115.1(1)(a), which prohibits driving while holding or manipulating a “cellular telephone, radio communication device or other communication device ....” In the Commissioner’s view, a smart phone could properly be included under the definition of “hand-held electronic device or a wireless electronic device” since smart phones were separately provided for under s. 115.1(1)(a), and thus acquitted him. The Crown appealed.

In a decision resting entirely on statutory interpretation (and as readers of this newsletter will recall, most cases on distracted driving offences do so), Justice Henderson overturned the ruling of the Traffic Commissioner and entered a conviction. Noting that the two sections in question were part of a set of distracted driving offences that had been inserted into the Act, he began by noting that in the grammatical and ordinary sense of the words, smart phones fell under both sections:


[18]           Cell phones and smart phones are now very widely used throughout Canada and the developed world. I take judicial notice of the fact that these devices are intended to be hand- held. I take judicial notice that the devices are powered by battery and are thus electronic. I take judicial notice that the devices operate wirelessly.

[19]           There can be no reasonable doubt that a cell phone is both a hand-held electronic device and a wireless electronic device.

[20]           There can be no reasonable doubt that a smart phone is both a hand-held electronic device and a wireless electronic device.

Next Justice Henderson examined the context and scheme of the legislation. The Traffic Commissioner had been convinced that because ss. 115.1(1)(a) and (b) were separated by the word “or”, two separate offences were in fact created. However, use of the disjunctive “or” did not necessarily separate the two and in context did not indicate an intention to except smart phones from being treated as wireless/handheld devices. There was, in fact, a fair amount of overlap between the various provisions in the Act which dealt with distracted driving, but this did not create an interpretive issue:

[30]           The fact that there is overlap among the various “distracted driving” provisions is not of consequence when interpreting the provision of a statute.  It is presumed that the provisions of legislation are meant to work together logically as parts of a functioning whole. The parts are presumed to form a rational, internally consistent framework; because the framework has purpose, the parts are also presumed to work together dynamically, each contributing something toward accomplishing the intended goal:  Sullivan on the Construction of Statutes, 6th ed (Markham: LexisNexis Canada, 2014), at para 11; R v LTH2008 SCC 49 (CanLII) at para 47.

The court next turned to the argument that certain defences under the Act were available for the (a) offence (cellular phones) but not the (b) offence (wireless devices). The Commissioner had reasoned that smart phones must therefore be excluded from the scope of the (b) offence. Justice Henderson noted that the expressio unius principle of statutory interpretation supported this conclusion, but felt that in the overall context it could not bear the weight of the obvious legislative intent behind the distracted driving provisions:


[39]           The concerns raised by the learned Traffic Commissioner are legitimate.  The Legislature cannot have intended that the defences for legitimate cell phone use, as provided by s 115.1(3), should be dependent upon which of several distracted driving provisions the charge is advanced under. The charging section is often made at the discretion of a police officer without any regard to the consequences which may flow from it. For this reason, the decision on the charging section may be completely arbitrary. The Legislature cannot have intended that the legitimacy of defences would be based upon arbitrary decisions of a police officer.

[40]           However, while the concerns are legitimate, the solution is more complex. One potential solution is that s 115.1(1)(b) should be interpreted as excluding cell phones and that any cell phone charges must be advanced under s 115.1(1)(a). That solution has its own problems because it requires that the Court infer words into the subsection which are simply not there. This solution would also not address potential cell phone charges under s 115.2 or other subsections.

[41]           Ultimately the concerns with the s 115.1(3) defences arise because of inelegant drafting of the legislative provisions. The real solution is for the Legislature to respond with amendments to address the concerns.

Finally Justice Henderson explored the Hansard records surrounding the introduction of the distracted driving provisions and held that they were intended to be comprehensive, practical and enforceable. He concluded:


[49]           The terms “handheld electronic device” and “wireless electronic device” are broad and were intended to be expansive.  If the Legislature had intended to exclude cell phones or smart phones from the scope of s 115.1(1)(b), then it could have employed clear wording to achieve this result.  It did not do so.

[50]           I conclude that the intention of the legislature and the purpose of the legislation would be defeated if cell phones or smart phones were excluded from the definition of the terms “handheld electronic device” or “wireless electronic device” in s 115.1(1)(b).

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