Judge points out loophole in the law that makes it difficult to get convictions for distracted driving at NS

A pair of court decisions released last week by a Nova Scotia Supreme Court judge say poorly worded legislation makes it difficult for courts to hand down convictions in cases where individuals are accused of distracted driving with a cell phone.

She is not the first judge to point this out.

The two decisions were appeals of lower court rulings acquitting drivers charged with distracted driving violations, both of which were upheld by Judge Christa M. Brothers.

In the section of the province’s Motor Vehicle Act that covers distracted driving and cell phones, the legislation notes in part: “It is an offense for any person to use a portable cell phone or text on a communications device while operating a vehicle .”

The question is how to define use.

That’s because the law prohibits using a cell phone while driving, but not holding a cell phone.

A plea from a judge

“Nova Scotia needs clarity in the law on when driver involvement with such devices is prohibited. Activities that one would expect, as a matter of common sense, to be covered by a distracted driving provision are not necessarily prohibited by current law,” Brothers wrote. in R. v. Rankin.

During the original trial in the Rankin case, a police officer testified that they observed a driver traveling south on the Bedford Highway, with his phone at chest level and his right thumb on the phone. Under cross-examination, the officer said he did not know what the driver was doing with the phone.

Previous court decisions

The suspect was acquitted, with the justice of the peace citing a court ruling from 2020: R. v. Anandin a case where a driver looked up directions on his phone while driving.

That 2020 decision pointed out that the legislation does not prohibit the use of a GPS device.

“It is certainly not the role of the courts to fill in the blanks and convict members of the public based on our view of whether the impugned conduct is as bad as what the Legislature had in fact prohibited,” Judge wrote Duncan R Beveridge. .

In R. v. Rankin, Brothers wrote that there is a simple solution to the shortcomings of the language in the Motor Vehicle Act: promulgate the Highway Safety Act. The latter legislation was passed in 2018, but not declaredand has wording that is much more precise about what is and is not allowed while driving.

In the second decision of Brothers – R. v. Sogy – the case involved a Skip the Dishes driver who, as the original judge ruled, was “at best clearly looking at (their) phone” while driving. But the judge felt bound by the Anand case.

“So Mr. Sogy, I don’t agree with the use of cell phones in cars, but I believe that according to the law and the case law and the current state of affairs, you are not guilty,” the judge said.

The brothers also confirmed this decision.

Court rulings show that judges are frustrated, says law professor

Wayne MacKay, professor emeritus at Dalhousie University’s Schulich School of Law, discussed Brothers’ decisions, which included many quotes from judges who ruled on previous distracted driving cases.

“I think in some of the judgments themselves you can almost feel the frustration that they (the judges) are applying the correct rules of interpretation. They believe they have to come to this specific legal conclusion, but they recognize that the effect of that conclusion really matters. not achieving the goal of preventing distracted driving,” he said.

MacKay said it’s pretty clear the justices are trying to get the Legislature to fix this.

He also said the legislation makes it difficult for police to gather enough evidence for prosecution.

“Because it’s not enough to simply see someone with a cell phone in their hand or even with the lights on,” he said. “And even though they have their thumb in the right place, they have to go further than that.

“And it would be extremely difficult for police to have all that detailed information, given the distance and short time in which they would observe it.”

Why the Road Safety Act has not been promulgated

In 2021, Nova Scotia’s Minister of Public Works said it would be three or four years before the Traffic Safety Act would be promulgated. Kim Masland said the delays were due to huge amounts of data relating to more than 100 years of previous road safety data having to be fed into the system.

MacKay said a simple solution would be to update the language in the Motor Vehicle Act around distracted driving.

CBC News asked the province for a timeline for promulgating the Road Safety Act, but a spokesperson did not answer the question.

As for Brothers’ decisions, Public Works spokesperson Gary Andrea said they cannot comment on court decisions.

“Distracted driving is one of the most common factors contributing to motor vehicle collisions and is a serious road safety concern,” he wrote.