R. v. Virda

2024 BCSC 2410 R. v. Virda

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: R. v. Virda, 2024 BCSC 2410 Date: 20241218 Docket: 36977 Registry: Vancouver Rex v. Vasu Subhashbhai Virda Before: The Honourable Madam Justice W.A. Baker On appeal from: Provincial Court of British Columbia, September 12, 2024 (R. v. Virda, Robson Square Docket EA00470806‑1) Oral Reasons for Judgment at Summary Conviction Appeal Counsel for the Crown (Appellant): D. Meagher The Accused (Respondent), appearing on his own behalf: V. Virda Place and Date of Hearing: Vancouver, B.C. December 18, 2024 Place and Date of Judgment: Vancouver, B.C. December 18, 2024 [1] THE COURT: This is a summary conviction appeal from an acquittal issued on September 12, 2024, by Judicial Justice Makhdoom. Mr. Virda had been charged on July 31, 2024, with using an electronic device while driving, contrary to s. 214.2(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA]. [2] Mr. Virda and Officer Kim both appeared before the judicial justice and testified. Officer Kim testified that he saw Mr. Virda tap the screen of his handheld cellphone twice while he was stopped at a light. Mr. Virda testified that he only tapped the screen once. He testified before the judicial justice that he worked for Uber Eats and had been sent a delivery offer from his company. He said that he needed to answer the offer within five seconds and, by tapping the app once,

he was able to receive the offer. [3] Before me today, I also want to note that I find Mr. Virda to be a very credible party. I accept that he was doing his job and operating as safely as he could within the parameters of his job. However, I am required to uphold the law as it is written. Mr. Virda makes a number of submissions that the law is not fair to people like Uber Eats drivers and taxi drivers who require their devices as part of their jobs. However, I am not here to rewrite the legislation to include them. I am not able to do that, so I must apply the law as it is written. [4] While there is a dispute regarding whether Mr. Virda tapped the screen once or twice, there was no dispute before the judicial justice about the fact that Mr. Virda was using the Uber Eats app at the time and was touching the screen to respond on the Uber app. He was not using the telephone function of the phone. [5] The judicial justice found that Mr. Virda was credible and, relying on R. v. W.(D.), [1991] 1 S.C.R. 742, found that his evidence of tapping the screen only once was to be preferred. The judicial justice then acquitted Mr. Virda on the basis that the legislation permitted a person operating a handheld electronic device to touch the device once while they were operating a vehicle. [6] Officer Kim attempted to argue, after the judicial justice entered the acquittal, that the

legislation only permitted one touch in answering a telephone call and not in operating an app. The judicial justice did not accede to this argument which was made after the acquittal was entered. [7] On appeal, the Crown argues that the judicial justice erred in law, in that the legislation and regulation only permits a person to use their device in certain circumstances, none of which is consistent with the use of an Uber app, and erred in the exercise of his jurisdiction in that the judicial justice rendered his decision before hearing argument from the parties. [8] The Crown may appeal an order dismissing a violation ticket pursuant to s. 102 of the Offence Act, R.S.B.C. 1996, c. 338 [Act]. Where such an appeal is taken, ss. 683 to 689 of the Criminal Code apply. Section 830 of the Code also permits an appeal of a summary conviction offence. Section 686 of the Code permits an appeal based on questions of law, fact, or both. Section 830 of the Code permits an appeal based on an error of law or jurisdiction. Did the judicial justice err in law. [9] Section 214.2 of the Act prohibits the use of an electronic device while driving. There is no dispute that Mr. Virda was using an electronic device at the time he touched the screen, as observed by Officer Kim. [10] Section 214.41 of the Act creates certain exemptions from the operation of s. 214.2, and incorporates exemptions set

out in the Use of Electronic Devices While Driving Regulation, B.C. Reg. 308/2009 [Regulation]. Sections 7 through 11 of the Regulation set out permitted uses of electronic devices. For example, s. 8 permits certain uses of GPS systems, s. 9 permits certain uses of a hand microphone, s. 10 permits certain uses of an audio player, and s. 11 restricts the use of a television screen. [11] Section 7 of the Regulation is the relevant section before me. Section 7 reads: 7 (1) Subject to section 6 and subsection (2), a person may use an electronic device in a hands-free telephone function while driving or operating a motor vehicle on a highway, if the device (a) is installed in accordance with section 4 and within easy reach of the driver's seat, or worn securely on the person's body, (b) is voice-activated or requires only one touch in order to initiate, accept or end a call, and (c) in the case of a device that includes an earpiece, the earpiece is worn only in one ear. [12] The judicial justice held, and I am quoting from the transcript: It doesn't matter. It's -- he is accepting an order. If it's a one touch, it's a one touch. He is allowed to put one touch at any moment he wants, if the phone is properly installed, and that's where the -- the magic of cross-examination comes. You could have cross-examined him, and he would have been -- if his testimony was shaken, he would have

been convicted, but it's not shaken. My hands are tied by law, right, and respectfully I will have to enter an acquittal. You are free to go. Don't do it, again. [13] Section 7 is the only section which includes one‑touch language. However, I agree with the Crown that the plain language of s. 7 permits a user to touch the screen once, only when initiating, accepting, or ending a telephone call. It does not permit a user to touch the device once when using any other function. I agree with the Crown that the permitted one touch in the operation of a telephone call is a naturally limiting use. It does not permit a user to type in a phone number or scroll their contacts, or do anything other than use one touch to initiate, accept, or end a telephone call. In contrast, it is difficult to understand how a one‑touch permitted use would operate in the context of typical apps on a personal smartphone. [14] The judicial justice did not specify which section of the Act or Regulation permitted Mr. Virda to use one‑touch on his device. However, I find that he must have been referring to s. 7 of the Regulation, as that is the only section that has the one‑touch language. I find the judicial justice erred in law in finding that s. 7 permitted Mr. Virda to operate his Uber Eats app using one touch or otherwise while he was operating his motor vehicle. Exercise of jurisdiction. [15] It is clear

from the transcript of the hearing that the judicial justice did not hear submissions from either party before rendering his decision. One of the most fundamental rights of a party to a judicial process is the right to be heard, the right to put their case fully before the adjudicator, before the adjudicator makes their decision. The authorities include R. v. Rahmani, 2017 BCSC 1471 at para. 20, R. v. Nguyen, 2007 CanLII 15243 at para. 62, and R. v. J.V., 2002 CanLII 49650, para. 107. [16] In this case, the interpretation of the MVA and associated Regulation was critical to the disposition of the charge. Officer Kim was entitled to make full submissions on the meaning of the Regulation and was prevented from doing so by the judicial justice. Had Officer Kim been given the opportunity to make full submissions, the judicial justice may not have fallen into legal error, as I have found he did. I find that the judicial justice failed to properly exercise his jurisdiction, resulting in a breach of procedural fairness. Disposition [17] The Crown asks that I set aside the acquittal and order a conviction. I am satisfied that the evidence before me is sufficient to do so. I will set aside the acquittal and order a conviction. [18] In doing so, I accept what you say, Mr. Virda, that you were not intending to break the law and that you were intending to operate safely and that you were

required to deal with that app as part of your work. I absolutely accept what you say. However, I must apply the law as it is written and, as a result, I must unfortunately convict you under the section. [19] The fine for using the electronic device is $368. The Crown submits that the minimum fine is $320. I wonder, Mr. Meagher, if $295 might be a minimum fine, which is what the fine would have been had he paid before 30 days. [20] CNSL D. MEAGHER: Oh, yes, that should be correct. Where ‑- I think the 295 is the reduced fine without the victim surcharge levy, but I think you are ‑- I don't see any issue with that. [21] THE COURT: All right. There is very limited discretion for me to vary the fine that is set out in the law, so I will ‑- but I can reduce it to $295 which is the minimum, and that is what I will do. So you are fined $295 and you will have a conviction pursuant to the violation ticket. Is there anything else? [22] CNSL D. MEAGHER: I think, Justice, you need to set out a time to pay. I am not opposed to a lengthy time to pay in the circumstances. [23] THE COURT: All right. What time ‑- how long would you need to pay that? When you say a lengthy time, what does that actually mean in months? [24] CNSL D. MEAGHER: I think six months is probably a long time, but ‑- [25] THE ACCUSED (RESPONDENT): Yes, Your Honour. [26] THE COURT: All right. $295 to be paid over the course of six months, but you can pay it all at once or you can stagger it. Whatever you want to do, in speaking with the Crown, is fine, but you must pay it within six months of today's date, all right. [27] THE ACCUSED (RESPONDENT): Yes, I will. "W.A. Baker J."