CASE LAW - R v Partridge

BC Courts Coat of ArmsOn August 21, 2018 Philip Partridge was observed by police looking downward while driving. After being stopped, it was noted that he had a cellphone wedged between the folds of the passenger seat with the screen facing him. The screen was not lit when the officer looked inside Mr. Partidge's vehicle.

Mr. Partridge was issued a traffic ticket for using an electronic device while driving and unsuccessful in the dispute of that ticket in Vancouver traffic court.

That decision was appealed in the Supreme Court and Mr. Justice Blok entered an acquittal:

[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.

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