CASE LAW - R v Tannhauser

BC Courts Coat of ArmsThe B.C. Court of Appeal has ruled that having a disabling app on your cell phone cannot form a successful defence. Following an acquittal in traffic court that was upheld by the Supreme Court, the Court of Appeal has allowed the Crown's appeal and ordered a new trial.

Patrick Tannhauser was observed by police holding his cellphone on the steering wheel of his car while driving. He was stopped and issued a violation ticket for distracted driving. He disputed the ticket citing an app installed on the phone which disabled its functions while in a moving vehicle.

The judicial justice agreed with him, saying that the software stopped the phone from being used.

The Supreme Court agreed, concluding that “a device which is disabled from functioning is not an electronic device under s. 214.1 (a).”

Chief Justice Bauman wrote the following:

[23] This appeal raises two issues. First, is a cellphone with no immediate functionality an “electronic device” as defined in s. 214.1 of the MVA? Second, can a device with no immediate functionality be held “in a position in which it may be used”?

[24] I would answer both questions in the affirmative. As I will explain, neither provision of the statute incorporates cellphone functionality as an element of the relevant definition. Thus, the disabling software in question cannot form the basis for a successful defence.

The moral of the story still seems to be that if you are driving leave the phone alone!

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