R. v. Partridge

2019 BCSC 360 R. v. Partridge IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Partridge, 2019 BCSC 360 Date: 20190301 Docket: 27693 Registry: Vancouver Regina v. Philip Gary Leone Partridge Before: The Honourable Mr. Justice Blok On appeal from: A decision of the Provincial Court of British Columbia, dated September 19, 2018 (R. v. Partridge, Vancouver File No. AJ04183191). Oral Reasons for Judgment In Chambers Counsel for the Crown: K. Gagnon Counsel for the Appellant: E. Wilson Place and Date of Hearing: Vancouver, B.C. March 1, 2019 Place and Date of Judgment: Vancouver, B.C. March 1, 2019 [1] THE COURT: On August 21, 2018, Mr. Partridge was convicted of using an electronic device while operating a motor vehicle on a highway, contrary to s. 214.2 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. [2] The facts are straightforward. A police officer observed Mr. Partridge looking downwards while driving. After stopping the vehicle, the officer observed that there was a cell phone wedged between the folds of the passenger seat such that the screen was facing the driver. Although not expressly referred to in the reasons below, the Crown on appeal noted the additional fact that the cell phone screen was not illuminated when the officer looked inside the vehicle. [3] In convicting Mr. Partridge, the learned judicial justice of the peace focused on certain exceptions to s. 214.2 that are created through a combination of a later section of the Act (s. 214.4), and an associated regulation, the Use of Electronic Devices While Driving Regulation, B.C. Reg. 308/2009. These provisions allow for the use of an electronic device in "hands-free" fashion. Essentially, these provisions require the use to be in hands-free fashion and that the device be "securely fixed to the motor vehicle". The learned judicial justice concluded that the placing of the cell phone within the folds of the car seat did not meet the requirement that the device be securely fixed to the vehicle. [4] In focusing on the manner in which the device was or was not connected to the vehicle, the learned judicial justice did not really address the question of "use" of the device, a necessary element of the offence. [5] The appellant notes that the meaning of "use" was addressed in some detail in R. v. Jahani, 2017 BCSC 745. There, Madam Justice Maisonville reviewed the statutory provisions dealing with "use", together with case authorities, and concluded that the mere holding of the device in that case, which was the situation before her, must be done together with another accompanying act in order to constitute "use" of the device. [6] Here, the appellant emphasizes that since the officer never saw the appellant touch the device in any way, there was no "further accompanying act" and so the appellant cannot be found to have been "using" his cell phone. [7] The Crown concedes this point. I agree that this is an appropriate concession. [8] In further dialogue with Crown and defence, counsel agreed that the mere presence of a cell phone within sight of a driver is not enough to secure a conviction, leaving aside a situation where, for example, the screen is illuminated and so the driver may then be utilizing the cell phone in some fashion. I agree with those observations. [9] Given the absence of evidence on an essential element of this offence, and in light of the Crown's concession, the appeal is allowed, the conviction is set aside and a verdict of acquittal shall be entered. "Blok J."