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I was stopped at a red light, grabbed my cellphone and went

to select a song as...
I was stopped at a red light, grabbed my cellphone and went to select a song as it's my music player in the car. This action required one hit of a button. My understanding of the law was that texting or talking were illegal and for this reason once the law was coming into effect I bought a bluetooth device to avoid such problems. Now, the information I got was from BCAA's site, but I'd like to see the actual legal document that spells out this law thoroughly.

I was further aggravated by the officer as I was standing outside my car while smoking and waiting for him to do his paperwork. When he finally approached me, he insisted I put out the cigarette. I was nowhere near a doorway or a window and I was outdoors. I stated that I did now wish to put out my cigarette, but he further insisted he wouldn't deal with me as long as I was smoking and repeated for me to put it out. I felt the officer was abusing his power in the instance of the cigarette and was perhaps too loose with his interpretation of the law regarding my changing songs while stopped at the light. I told him as much but he insisted that simply 'holding' an electronic device was an offence. I'd like to see the law as it's written exactly and know if I have grounds to stand on to dispute both issues above. The amount of money is hardly the issue. It's the abuse and misuse of power that frankly I think is a problem with far too many of our police officers that I want to address. On the bright side, I wasn't beaten to death by the officer and his peers, so things could have been worse. Sadly, while I say that tongue in cheek, even abuse of power begins with baby steps.

Many thanks for any light you could shed on this matter for me.
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Answered in 32 minutes by:
6/29/2013
Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 2,019
Experience: Lawyer and Retired cop. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and others.
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Copperlaw :

Hi There

Copperlaw :

The law you're referring to is the distracted driving provisions added to the BC Motor Vehicle Act in 2010

Copperlaw :

The Section is 214.2

Copperlaw :

Here is a link which will provide you with the specific wording of the law

Copperlaw :

Now, you'll find that the legislation is very general, as is often the case. The Courts exist to provide context and limits to legislation

Copperlaw :

It has been determined by courts in many provinces, and is supported by the legislation, that even while stopped at a light, a person is still "operating" the vehicle

Copperlaw :

And you'll see that the definition of "use" in section 214.1 includes simply holding the device in a position in which it could be used

Copperlaw :

And clearly, from the legislation, operating any function, even pressing a play button, constitutes use.

Copperlaw :

recent case law on the identical legislation in Ontario however, has limited the legislation, in that it is now permissible for a person to press one button to answer a call, when using a handsfree device

Copperlaw :

even though the definition of "use" would be satisfied by this

Copperlaw :

So under the letter of the law, being stopped at a red light and holding your phone and pressing one button would make out the offence

Copperlaw :

However, the police officer and prosecutor must prove the charge in court in order to obtain a conviction

Copperlaw :

This would have to be done through the officer's evidence and observations, and could not be simply based upon any description you provided regarding what you were or were not doing

Copperlaw :

As for the cigarette issue, it sounds like you were probably dealing with a cop who has a thing against smoke and smokers and didn't want to deal with you while you were smoking in proximity to him

Copperlaw :

He can ask you to put it out, he can't force you to, but can ask, or tell you to, however again, you're not obliged to do so. you're in public

Copperlaw :

Sounds like you met someone with a bit of a chip on their shoulder. They certainly exist and it's unfortunate.

Copperlaw :

as you know, there's good and bad in every bunch, in every career

Customer:

So to be clear, as the law will be interpreted, the officer's observation will be considered while my word

Customer:

will really not be

Customer:

officer's observation = proof enough, and I'm not inclined to lie at all, so I would admit to changing songs and that alone would be enough for me to lose a dispute

Copperlaw :

This isn't what i'd call a "misuse" of power, as they simply were forceful in their demand, but didn't force you to do anything or violate your rights persay. There are a lot of people in everyday life who are rude, ignorant or severely lacking in interpersonal skills. These people aren't misusing any power or authority, they are just bossy or rude.

Customer:

don't want to waste my time on the dispute, even though I'm generally offended by the ignorant generality of the law as you explain it is interpreted. You can eat while driving or handle other objects, but not an electronic device really under any circumstance, even to pass it to someone.

Customer:

The cigarette, well, were I not so ruffled by his insistence that I drop it, I could simply have said then, "come back with my ticket when I'm done my smoke"

Customer:

technically, again as I don't believe in lying to further my goal, he said "I'm not dealing with you while you smoke, can you put that out?"

Copperlaw :

This officer could have used discretion with you, however chose not to for whatever reason. Just because the law says it's an offence doesn't mean an officer has to law a charge every time. Unfortunately, this officer chose to deal with you by giving you a ticket as opposed to warning you or providing you with information about the law.

Customer:

Afterwards when I asked, he even admitted that I couldn't be legally compelled to drop the smoke. So while being a power tripping, or at least manipulative jerk with a personal agenda, I don't really have a legal leg to stand on to dispute

Copperlaw :

He is correct that simply holding the device can constitute the offence, but to lay the charge based only on that would be real low.

Customer:

He was a very young buck, and the cops were set up at a corner, hiding behind a bush, making quotas

Copperlaw :

So as I said, they have to prove the charge in court and the officer would have to explain himself on the stand and be subject to cross examination by you. The presiding judge or justice of the peace may not be overly impressed if the officer has chosen to lay a charge for the simplest of violations where other means would have been just as effective.

Customer:

All they could have been doing was looking for exactly what they got me for, or a seatbelt fine were I not wearing one.

Copperlaw :

Here is a brochure produced by the ICBC with regard to this legislation. You'll see it deals with the issues you've mentioned specifically.

Copperlaw :

Please let me know if you require any further clarification or if I can answer anything else for you

Customer:

By the way, I appreciate this service and your advice is well worth the $33 dollars as I know I wouldn't be walking into a legal office and getting anything for that money

Customer:

At least I've learned a little something here. Now I just have to decide if I want to drag the officer into court and inconvenience him out of spite. I'm honest, but I'm also spiteful, so I just may anyway.

Customer:

Thanks kindly. First time using this service, I'm not automatically subscribed am I?

Customer:

Happy to pay the one time fee as I appreciated your service.

Customer:

I guess that's all you can do for me on the subject. If I do take it to court, I will simply explain my honest misunderstanding of the law, and point out that I have gone to lengths to be set up hands free in my car out of respect for the law, and simply wonder why the officer chose to proceed with laying a hefty fine, when simply informing me of the law would have been adequate as I have no history of trouble with the law and so on and so forth...

Customer:

Have a great night. I won't hesitate to use your services in the future based on this experience.

Copperlaw
Copperlaw, Lawyer
Category: Canada Law
Satisfied Customers: 2,019
Experience: Lawyer and Retired cop. Drug expert, breath tech, negotiator, traffic specialist. Criminal, Family, Civil and others.
Verified
Copperlaw and 87 other Canada Law Specialists are ready to help you
Ask your own question now

There have been some issues lately with the chat interface so I have switched formats. I wasn't able to see your responses.

 

If there's anything else I can help with or if you need further clarification, please feel free to reply and I'm happy to chat further here, as long as you need.

 

I can pretty much picture exactly how this went down, and it sounds like they were doing exactly what you describe, staking out the corner, looking for people to charge, to justify their existence.

 

Some will say there are no "quotas" but having been there myself, I can assure you that there are...

 

Regards

Jim

 

Ask Your Own Canada Law Question
Customer reply replied 4 years ago

If I dispute this in court is there any additional cost to me?


 


While I realize I can ask the officer questions, will I also be asked questions? For instance if without a photo (didn't notice a photo taken while he looked in my window), the officer has no proof, only his word. I don't want to lie, but will I also be forced to answer the question of whether I was holding my phone when he took me aside? Or am I allowed to refuse to answer?

Customer reply replied 4 years ago
Relist: Other.
Follow up
Sorry for the delay.

No, there is no cost to you for going to court and putting the prosecutor and the officer to the task of proving the charge.

You can certainly ask him questions. You can only be asked questions if you choose to give evidence yourself and take the stand. But if you do, you can't "refuse" to answer, otherwise this would not look good.

But if you take the stand, it would only be after the prosecutors case has finished and the officer has testified. So you'll know what his evidence is.

Hope that helps
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Category: Canada Law
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