A technicality that saw an Alberta driver get away with holding and looking at a smartphone while driving was recently subject to review by the Court of Queen’s Bench of Alberta. While it is a criminal law decision, the law in question (The Traffic Safety Act) does impact insurance requirements for all motor vehicles operating in Alberta.

Caught red-handed

On April 10. 2017 the Respondent was caught driving while holding a cell phone (or smartphone) in his hand. He was seen by a police officer looking at the screen and then back to the road ahead. The officer stopped the respondent and charged him with “distracted driving” contrary to s 115.1(1)(b) of the Traffic Safety Act which makes it an offence to drive while “ holding, viewing or manipulating a hand‑held electronic device or a wireless electronic device.” However, the respondent argued that he was charged under the wrong section of the Act and that he should have instead been charged under s. 115.1(1)(a), which makes it an offence to drive while “holding, viewing or manipulating a cellular telephone, radio communication device or another communication device that is capable of receiving or transmitting telephone communication, electronic data, electronic mail or text messages.”

At the initial trial, the Traffic Commissioner found that the respondent had not been holding a “hand-held electronic device” or a “wireless electronic device” as required by the section he was actually charged under. The driver was acquitted, but the Crown appealed.

A matter of statutory interpretation

The Supreme Court of Canada has set out an approach to statutory interpretation which requires the words of an Act to be read in their entire context and in their grammatical and ordinary sense, keeping in mind the object of the Act and the intention of Parliament. The court found that while the Act has cell phones listed in a separate subsection, they still qualify as “hand-held electronic devices” or “wireless electronic devices.”

That said, the court still had to look at the total context of the Act. It noted that the subsections are joined by the word “or” meaning that two offences could be created, but not necessarily indicating that cell phones can’t be excluded from the offence the respondent was charged with.  The court explained that “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 the legislation are meant to work together logically as parts of a functioning whole.

Finally, the court looked at the legislation, which is to provide protection for and to enhance the safety of motorists, their passengers, and pedestrians. The court held “that the intention of the legislature and the purpose of the legislation would be defeated if cell phones or smartphones were excluded from the definition of the terms “hand‑held electronic device” or “wireless electronic device”

As a result, the court overturned the earlier decision, finding the driver guilty.

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