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Case Summary: R v Ahmed
Defence + Indemnity

Charges for distracted driving were widened in scope by including cell and smart phones in the definition of “hand held electronic” and “wireless electronic” devices in the Traffic Safety Act.

R v Ahmed, 2019 ABQB 13, per Henderson, J. [4302]

FACTS AND ISSUES:

The Respondent Ahmed, was holding a cell phone in his hand while operating a motor vehicle. He would alternate between looking at the road and his phone, and on this basis was stopped by a police officer and charged with “distracted driving” contrary to s 115.1(1)(b) of the Traffic Safety Act, RSA 2000, c T-6, Section 115.1 provides as follows:

115.1(1)  Subject to this section and the regulations made under section 115.5, no individual shall drive or operate a vehicle on a highway while at the same time

  1. holding, viewing or manipulating a cellular telephone, radio communication device or other communication device that is capable of receiving or transmitting telephone communication, electronic data, electronic mail or text messages, or
     
  2. holding, viewing or manipulating a hand held electronic device or a wireless electronic device.

(2)  An individual may drive or operate a vehicle on a highway while using a cellular telephone or radio communication device in hands free mode.
 
(3)  Subsection (1)(a) does not apply to

  1. the use of a 2 way radio communication device, only for the purposes set out in the regulation, by an individual driving or operating an escort, pilot or trail vehicle who is required by regulation under this Act to maintain 2 way radio communication, or the use of a cellular telephone or other communication device by that individual for those purposes when 2 way radio communication is not functional or is unavailable,
     
  2. the use of a 2 way radio communication device, only for the purpose of maintaining communication with the individual’s employer, by an individual driving or operating a vehicle who is required by the individual’s employer to maintain 2 way radio communication while the individual is acting within the scope of the individual’s employment, or the use of a cellular telephone or other communication device by that individual for that purpose when 2 way radio communication is not functional or is unavailable,
     
  3. the use of a 2 way radio communication device, only for the purpose of participating in a search, rescue or emergency management situation, by an individual driving or operating a vehicle, or the use of a cellular telephone or other communication device by that individual for that purpose when 2 way radio communication is not functional or is unavailable, or
     
  4. the use of a cellular telephone or other communication device, only for the purpose of contacting an emergency response unit, by an individual driving or operating a vehicle.

(4)  Subsection (1) does not apply to an individual driving or operating an emergency vehicle while the individual is acting within the scope of the individual’s employment.

(5)  Subsection (1) does not apply in respect of a vehicle that

  1. is not on a highway, or
     
  2. is parked in a manner specified in a regulation under this Act.

Ahmed was charged under s. 115.1(1)(b).  He argued that a “hand held electronic device” as referred to in that subsection could not include a cell phone because using a “cellular phone” was a separate offence prohibited by s. 115.1(1)(a).
 
The Traffic Commissioner agreed, holding that the Respondent’s phone was not a “hand-held electronic device” within the meaning of s. 115.1(1)(b) of the Act, but that Ahmed’s conduct  would have been an offence under s 115.1(1)(a) of the Traffic Safety Act.
 
The Crown appealed the acquittal on the grounds that the Traffic Commissioner erred in his interpretation of “distracted driving” provisions and erred in his conclusion that s 115.1(1) creates two separate offences. Instead, the Crown argued that this section creates one offence, and particularization under the subsections is irrelevant.
 
The issues on appeal were:

  1. Do the words in s 115.1(1)(b), in their ordinary and grammatical sense, include cell phones and smart phones?
     
  2. Should cell phones and smart phones be excluded from s 115.1(1)(b), when that subsection is read in context with the scheme of the Traffic Safety Act
     
  3. Does the purpose of the Traffic Safety Act and the intention of the Legislature, suggest that cell phones and smart phones should be excluded from s 115.1(1)(b)?
     
  4. Did the Respondent by “holding, viewing or manipulating” a cell phone or smart phone while driving a motor vehicle commit an offence under s 115.1(1)(b)?

HELD: Appeal allowed, substituted a conviction on the single count of distracted driving.
 
The Court held that the words in s 115.1(1)(b), in their ordinary and grammatical sense, include cell phones and smart phones.

  1. The Court noted that the Traffic Safety Act fails to provide any definitions of the phrases “hand-held electronic devices” or “wireless electronic devices”, found in s 155.1(1)(b).
     
  2. Henderson, J. took judicial notice of the fact that cell phones and smart phones are intended to be used as hand-held devices, are electronic devices by nature, and operate wirelessly and concluded that:

[18]           Cell phones and smart phones are now very widely used throughout Canada and the developed world.  I take judicial notice of the fact that these devices are intended to be hand- held.  I take judicial notice that the devices are powered by battery and are thus electronic.  I take judicial notice that the devices operate wirelessly.

[19]           There can be no reasonable doubt that a cell phone is both a hand-held electronic device and a wireless electronic device

[20]           There can be no reasonable doubt that a smart phone is both a hand-held electronic device and a wireless electronic device. Henderson J concluded that in the ordinary sense of the words in s 115.1(1)(b), a cell phone and smart phone do fall within the scope of the subsection. However, it is still necessary to interpret the subsection in the context of the entire provision “no matter how plain the disposition may seem upon initial reading”: at para 21.

The Court held that cell phones and smart phones should not be excluded from s 115.1(1)(b), when that subsection is read in context with the scheme of the Traffic Safety Act.

  1. Henderson, J. concluded that the foundation of the Traffic Commissioner’s decision was that s 115.1(1) did not create a single offence but instead created two separate offences, coming to this conclusion on the basis that the two subsections are separated by the word “or”, and because s. 115.1(3) creates exceptions to the offence described under s. 115.1(1)(a) where communication devices are used for certain specified work-related purposes. 
     
  2. Henderson J considered appellate authority of R v Charles, 2006 ABCA 216 (CanLII); and in the context of Traffic Safety Act offences, R v Roberts,1999 ABQB 3 (CanLII) and concluded that the use of the disjunctive “or” is not determinative of whether there are two offences, and does not in itself suggest that cell phones or smart phones should be excluded from the definition of “hand-held electronic devices” or “wireless electronic devices” in s 115.1(1)(b).
     
  3. Mr. Justice Henderson held that 115.1 has a substantial amount of overlap with section 115.4 and that motorists could be charged in the same factual circumstances with a number of related offences, such as the use of a cellular telephone, GPS devices, or electronic with a display screen. He concluded that if they could potentially be charged any other of these provisions, there is no “logical reason” why they could not also be charged under s 115.1(1)(b) for use of electronic devices. The overlap between the offences is “not of consequence” when interpreting the provisions of the statute. It is presumed that the sections are meant to work together to create a consistent framework, and therefore “the “distracted driving” provisions create a substantial overlap, but this does not, on its own, suggest that two separate offences are created by ss 115.1(1)(a) and 115.1(1)(b) or that a cell phone or a smart phone are not included in the electronic devices referred to in s 115.1(1)(b).

The Traffic Commissioner’s conclusion that the defences set out under s 115.1(3) only apply to charges under s. 115.1(1)(a) was held to be legitimate but not overriding.  The drafting of the legislation was held to be problematic but that this calls upon the Legislature, not the courts, to address:

[35]           Support for the Traffic Commissioner’s conclusion can potentially be found via the use of the maxim expressio unis est exelusion alterius (to express one thing is to exclude another).  Using this maxim would suggest that because the Legislature included specific reference to cell phones in s 115.1(1)(a) but not in s 115.1(1)(b) it must be inferred that cell phones are not be included s 115.1(1)(b).  However, as the Alberta Court of Appeal has observed in Reasons for Judgment Reserved, this maxim “has often been held to be the weakest of the canons of construction”: Apex Corporation v Ceco Developments, 2008 ABCA 125 (CanLII) at 41, leave to appeal refused, 391 NR 383 (SCC); R v CWK, 2005 ABCA 446 (CanLII) at 63.
 
[36]           There are reasons to question the interpretation of the leaned Traffic Commissioner. For his interpretation to be supported, it would be necessary to infer that the words of s 115.1(1)(b) read: “holding, viewing or manipulating a hand-held electronic device or a wireless electronic device, other than those specifically referred to in (a)”.  Those are not the words used by the Legislature in (b).  Adding text to a statutory provision is generally a function for the Legislature and is not a function for the Courts.
 
[37]           I also observe that the solution proposed by the learned Traffic Commissioner (ie, excluding cell phones and smart phones from s 115.1(1)(b)) would not fully address the concerns which he identified.  The very same concerns would continue to exist if a police officer charged a motorist who was using an activated cell phone with violating s 115.2 (display screens).  This would be an offence unless the cell phone was being used in “hands-free mode” (see s 115.2(2)(b)). An accused person charged with an offence under s 115.2 does not have the defences available under s 115.1(3).  Thus, the anomaly in relation to s 115.1(3) is not solved simply by excluding cell phones and smart phones from s 115.1(1)(b).
 
[38]           The Crown argues that to resolve the issue identified by the learned Traffic Commissioner, the Courts would need to go further and hold that the exceptions set out in s 115.1(3) are available to any defendant charged with a distracted driving offence – regardless of the section charged – provided that the evidence establishes that the defendant falls within those classes of people who are permitted to use certain communication devices for the permissible purposes set out in s 115.1(3).  The Crown concedes that “this interpretation admittedly strains the opening words of s 115.1(3)”.  I conclude that the proposal suggested by the Crown goes far beyond what would be permitted on any application of the rules of statutory interpretation.
 
[39]           The concerns raised by the learned Traffic Commissioner are legitimate.  The Legislature cannot have intended that the defences for legitimate cell phone use, as provided by s 115.1(3), should be dependent upon which of several distracted driving provisions the charge is advanced under.  The charging section is often made at the discretion of a police officer without any regard to the consequences which may flow from it.  For this reason, the decision on the charging section may be completely arbitrary.  The Legislature cannot have intended that the legitimacy of defences would be based upon arbitrary decisions of a police officer.
 
[40]           However, while the concerns are legitimate, the solution is more complex.  One potential solution is that s 115.1(1)(b) should be interpreted as excluding cell phones and that any cell phone charges must be advanced under s 115.1(1)(a).  That solution has its own problems because it requires that the Court infer words into the subsection which are simply not there.  This solution would also not address potential cell phone charges under s 115.2 or other subsections.
 
[41]           Ultimately the concerns with the s 115.1(3) defences arise because of inelegant drafting of the legislative provisions.  The real solution is for the Legislature to respond with amendments to address the concerns.

Henderson, J. held that the purpose of the Traffic Safety Act and the intention of the Legislature, suggest that cell phones and smart phones should not be excluded from s 115.1(1)(b)?

  1. The Traffic Safety Act was held to be public safety legislation, with the ultimate purpose of providing protection for and to enhance the safety of motorists, passengers in motor vehicles, and pedestrians. Its goal is to minimize injury and damage to property, while also allowing the use of public highways. The legislation was intended to meet its purpose by creating “comprehensive, practical, effective, and enforceable prohibitions.”: at para 46.
     
  2. Based on Hansard, the Court concluded that the terms “hand-held electronic device” and “wireless electronic device” are broad and were intended to be expansive: at para 49. If legislature had intended to exclude cell phones or smart phones from this section, it would have clearly done so.
     
  3. The Court ultimately held that the proper interpretation of s 115.1(1)(a) requires interpreting the words in their ordinary and grammatical sense, in the context of the overall provision, and taking into account the intent of the legislature. On this basis, a cell phone or smart phone was held to clearly fall within the definition “hand-held electronic device or wireless electronic device” and also falls within the scope of the intent of distracted driving offences to improve public safety.

Henderson J concluded that the words “hand‑held electronic device” or “wireless electronic device” in s 115.1(1)(b) must include cell phones and smart phones. As a result, Ahmed did commit an offence under s 115.1(1)(b).