What counts as “using” a cell phone under the Motor Vehicle Act?
Author: Corey M. Smith, Articled Student
Case: R. v. Rajani, 2021 BCCA 292 (CanLII)
Resting your phone or other electronic device on or under your leg may be an offence under the Motor Vehicle Act (the “MVA”). In R. v. Rajani, 2021 BCCA 292, the Court of Appeal held that using a cell phone is not limited to having it in a person’s hands. In other words, if someone is supporting a phone or other electronic device in any way with their body, this may count as using an electronic device.
Mr. Rajani was issued a ticket for using an electronic device while driving. The ticket was issued after an officer approached Mr. Rajani’s car and found a cell phone connected to a cord face-up in his lap. At the Court of Appeal, Mr. Rajani argued he had the phone wedged between his thigh and the seat, while the officer said the phone was on Mr. Rajani’s lap facing up. The Court held that in either scenario Mr. Rajani was holding the phone by physically supporting it with a part of his body in a position in which it could be used.
Under the MVA, a person must not use an electronic device while driving or operating a motor vehicle on a highway. The word “use” in the MVA includes holding the device in a position in which it may be used.
The Court of Appeal determined that “holding” is not limited to holding with one’s hands. The Court looked to common dictionary definitions of “holding” and concluded that physically grasping, carrying, or supporting a device with any part of one’s body in a position which the device may be used, are all considered holding.
The important question raised by the case is whether the prohibition against using an electronic device while driving applies to a cell phone that is resting on or wedged beneath someone’s leg but not in their hands, and whether this counts as “holding”? More generally, should the words “use” and “holding” be interpreted broadly enough to include electronic devices being supported by a driver in some way but not in their hands? Based on this decision, it appears that the courts will take a broad approach to interpreting “using” an electronic device. Under this approach, “using” includes when someone supports a device in any way with their body, and not simply when they are holding it with their hands.