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driving concerns

If police think you’re distracted by someone else using a phone, there’s a charge for that.DARRYL DYCK/The Canadian Press

My family and I drove from Alberta to Vancouver last month to drop off our 17-year-old daughter for her first year at UBC. As you can imagine, this was a very tough, emotional trip to take and we decorated the car with special messages of love and congratulations. While we were driving through Enderby, B.C., the police pulled us over. The officer said I was on my cellphone, but I hadn’t been. He must have seen my wife holding up my phone recording our daughters singing. Without any compassion for what this trip meant to us, he gave me a ticket for nearly $400. I offered to show him the video and he ignored me. In the video, my wife turned the phone to me twice. Both times, you can see me look at the phone for half a second and focus back on the road. How can I be charged with using my phone if I wasn’t using my phone? I am trying to determine if it’s worth fighting this ticket, or if I should just pay it and move on. I understand from stories here that B.C. does not share traffic violations with other provinces, so the ticket won’t affect my Alberta licence or insurance. – Cory, Okotoks, Alta.

If police think you’re distracted by someone else using a phone, there’s a charge for that.

“If a driver is interacting with somebody using an electronic device and recording him, that driver’s attention is diverted from the act of driving,” said RCMP Corporal Mike Halskov, spokesman for B.C. Highway Patrol. “That’s an offence.”

But, if you’re not physically touching or otherwise using a phone, you shouldn’t be charged in British Columbia with using an electronic device while driving – a $368 fine and four points, Halskov said.

Instead, you could be charged with careless driving – a $368 fine and six points.

Careless driving can cover any distraction that affects your driving – for instance, if you’re reaching for a dropped wallet or focused on squabbling kids in the back seat, Halskov said.

“It could be eating a sandwich or brushing your teeth or having a pet loose in the vehicle,” Halskov said.

For the ticket to stick in court, would an officer have to prove that whatever you were doing was dangerous on the road?

“If it’s witnessed, it’s a pretty easy thing for an officer to [explain] in his notes or later in court,” Halskov said. “Many times, [careless driving] tickets are issued if a collision has occurred and maybe a driver admitted that something fell down and they reached down to pick it up.”

While the rules vary by province, most are similar. While Alberta has a specific law against distracted driving, the laws in other provinces focus specifically on using an electronic device.

But any other distractions that affect your driving would fall under careless driving.

So could you be charged with using a cellphone in another province if somebody else is recording you? The laws in most provinces state that you have to be touching it.

“I’ve heard debates about that,” said Sgt. Kerry Schmidt, spokesman for the Ontario Provincial Police Highway Safety Division. “If the passenger is showing you a video or doing something that makes you look at their phone, that could be considered using it even though you’re not touching it.”

It would be up to a court to decide, Schmidt said.

Wrong charge?

It’s tough to successfully fight a ticket for using an electronic device while driving, says Kyla Lee, a criminal lawyer in Vancouver.

“Typically the evidence consists of the officer’s observations of a person using the device,” Lee said. “Most police officers won’t issue a ticket unless they see the phone in the hand, so then it’s basically clear.”

You would have to prove that you weren’t using your phone and the officer saw you holding something else, like your wallet or Costco card, Lee said.

But if the charge doesn’t fit what you were actually doing – for instance, if you’re charged for using an electronic device and not careless driving while a passenger is filming you – you could get the charge thrown out in court, Lee said.

“The essential element of the charge has to be there,” Lee said.

If you weren’t using your phone but got a ticket, is it worth it to fight a ticket in court?

“I think you should fight every ticket, but I’m a lawyer so I’m programmed to say that,” Lee said. “The cost of fighting a ticket can cost more than the ticket, but take into account the other potential consequences.”

Still, it’s best to avoid a ticket entirely by driving with your cellphone stored somewhere out of sight, Lee said.

“If they can’t see your phone, you won’t get a ticket,” Lee said.

Minimizing distractions while you drive isn’t just about avoiding tickets, experts say.

“There is research showing that just taking your eyes off the road for two seconds might be enough to cause a crash,” Karen Bowman, spokeswoman for the Traffic Injury Research Foundation (TIRF) said in an e-mail.

In B.C. in 2019, 70 people died in crashes where distraction was a factor.

“That’s actually more than impaired driving,” the RCMP’s Halskov said. “We’re hoping that people will make smart decisions and choose to do the right things – nobody wants to be involved in a crash.”

Have a driving question? Send it to globedrive@globeandmail.com and put ‘Driving Concerns’ in your subject line. Emails without the correct subject line may not be answered. Canada’s a big place, so let us know where you are so we can find the answer for your city and province.

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