The Crown has won the right to appeal a case in which a Victoria-area man was acquitted of distracted driver involving the use of his cellphone.
On Aug. 17, 2017, Patrick Tannhauser was driving his white pickup along the Trans-Canada Highway at the Helmcken overpass in View Royal when he was pulled over by police. Tannhauser had been seen by an officer involved in a cellphone and seatbelt campaign to be holding a smartphone at the top of the steering wheel in his slowly moving vehicle.
Tannhauser testified in provincial court that his phone was programmed with an application that disabled the phone when the vehicle was in motion and that the phone had been sitting on some papers on the passenger seat that he wished to look at. He said he picked up the phone with his right hand, transferred it to his left hand and put it on the dashboard. Tannhauser said that the screen on the phone was not lit and he had no intention of doing anything other than placing it on the dashboard.
In a bid to crack down on the escalating problem of distracted driving, the B.C. legislature passed a law strictly limiting cellphone use in vehicles.
In his ruling acquitting Tannhauser, Judicial Justice Hunter Gordon said the issue was not whether the driver was holding the device but whether it was in a position in which it could be used.
Gordon said the answer to the question was whether a cellphone with software that purportedly disables the phone when a vehicle is in motion constitutes such a use. He concluded that it did not constitute “use” within the law and acquitted Tannhauser.
The Crown appealed the ruling, but B.C. Supreme Court Justice Robert Johnston dismissed the appeal. Johnston upheld the acquittal on the basis that the phone, as disabled, was not an “electronic device” within the meaning of the Motor Vehicle Act provision that deals with distracted driving.
The Crown again appealed the matter, arguing that both of the lower court interpretations of the legislation were errors in law. It asked the B.C. Court of Appeal for permission for an appeal to go forward to B.C.’s highest court.
In a ruling posted online Wednesday, B.C. Court of Appeal Justice David Tysoe noted that decisions on whether to grant leave to appeal must establish a number of things, including that they involve a question of law alone, are issues of importance and have a reasonable chance at success.
“There is no doubt that the two proposed grounds of appeal raise questions of law alone, because they both involve the interpretation of a statutory provision,” said Tysoe in his reasons for judgment.
“I am satisfied that the issues are of importance. Many drivers in British Columbia carry their smartphones in their vehicles and are entitled to guidance as to what circumstances can give rise to an offence under [the law]. In addition, there are conflicting decisions in the provincial court.
“I am also satisfied that the proposed appeal has a reasonable possibility of success.”
